Policy on Fair Use
January 2005
The Copyright Law of the United States (Title 17 United States Code) governs the making of photocopies or other reproduction of copyrighted materials. 17 USC Section 107 establishes the principle of “fair use”, that the reproduction of copyrighted works for certain limited, educational purposes does not constitute copyright infringement. Fourfactors are considered in the determination of fair use:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
Uncopyrighted Published Works
Writing published before January 1, 1978 which has never been copyrighted may be photocopied without restriction. Copies of works protected by copyright must bear a copyright notice, which consists of the letter "c" in a circle (©), or the work "Copyright", or the abbreviation "Copr.", plus the year of first publication, plus the name of the copyright owner. [17 U.S.C. SS401] As to works published before January 1, 1978, in the case of a book, the notice must be placed on the title page or the reverse side of the title page. In the case of a periodical the notice must be placed either on the title page, the first page of text, or in the masthead. A pre-1978 failure to comply with the notice requirements results in the work being injected into the public domain, i.e., unprotected. Copyright notice requirements have been relaxed since 1978, so that the absence of notice on copies of a work published after January 1, 1978 does not necessarily mean the work is in the public domain. [17 U.S.C. SS405 (a) and (c)] However, you will not be liable for damages for copyright infringement of works published after that date, if, after normal inspection, you photocopy a work on which you cannot find a copyright symbol and you have not received actual notice of the fact the work is copyrighted. [17 U.S.C. SS405(b)]. However, a copyright owner who found out about your photocopying would have the right to prevent further distribution of the copies if in fact the work were copyrighted and the copies are infringing. [17 U.S.C. SS405(b)]
B. Published Works with Expired Copyrights
Writings with expired copyrights may be photocopied without restriction. All copyrights prior to 1906 have expired. [17 U.S.C. SS304(b)] Copyrights granted after 1906 may have been renewed; however the writing will probably not contain notice of the renewal. Therefore, it should be assumed all writings dated 1906 or later are covered by a valid copyright, unless information to the contrary is obtained from the owner or the U.S. Copyright Office (see Copyright Office Circular 15t). Copyright Office Circular R22 explains how to investigate the copyright status of a work.
Unpublished Works
Unpublished works, such as theses and dissertations, may be protected by copyright. If such a work was created before January 1, 1978 and has not been copyrighted or published without copyright notice, the work is protected under the new Act for the life of the author plus fifty years, [17 U.S.C. SS303], but in no case earlier than December 31, 2002. If such a work is published on or before that date, the copyright will not expire before December 31, 2027 . Works created after January 1, 1978 and not published enjoy copyright protection for the life of the author plus fifty years. [17 U.S.C. SS302] (This was changed in recent years to be the life of the author, plus seventy-five years.)
U.S. Government Publications
Most U.S. Government publications with the possible exception of some National Technical Information Service Publications less than five years old may be photocopied without restrictions, except to the extent they contain copyrighted materials from other sources. [17 U.S.C. SS105] U.S. Government publications are documents prepared by an official or employee of the government in an official capacity. [17 U.S.C. SS101] Government publications include the opinions of courts in legal cases, Congressional Reports on proposed bills, testimony offered at Congressional hearings and the works of government employees in their official capacities. Works prepared by outside authors on contract to the government may or may not be protected by copyright, depending on the specifics of the contract. In the absence of copyright notice on such works, it would be reasonable to assume they are government works in the public domain. It should be noted that state government works may be protected by copyright. See, 17 U.S.C. SS105. However, the opinions of state courts are not protected.
III. Permissible Photocopying of Copyrighted Works
The Copyright Act allows anyone to photocopy copyrighted works without securing permission from the copyright owner when the photocopying amounts to a "fair use" of the material. [17 U.S.C. SS 107] The guidelines in this policy discuss the boundaries for fair use of photocopied material used in research or the classroom or in a library reserve operation. Fair use cannot always be expressed in numbers -- either the number of pages copied or the number of copies distributed. Therefore, you should weigh the various factors listed in the Act and judge whether the intended use of photocopied, copyrighted material is within the spirit of the fair use doctrine. Any serious questions concerning whether a particular photocopying constitutes fair use should be directed to University Copyright Administrator.
Library Reserve Fair Use
At the request of a faculty member, a library may photocopy and place on reserve excerpts from copyrighted works in its collection in accordance with guidelines similar to those governing formal classroom distribution for face-to-face teaching discussed above. The University Library believes that these guidelines apply to the library reserve shelf to the extent that it functions as an extension of classroom readings or reflects an individual student's right to photocopy for his personal scholastic use under the doctrine of fair use. In general, the library may copy materials for reserve room use for the convenience of students both in preparing class assignments and in pursuing informal educational activities which higher education requires, such as advanced independent study and research.
If the request calls for only one copy to be placed on reserve, the library may typically copy from a lawfully obtained original copy:
- an entire article
- entire chapter from a book
- an entire poem.
Requests for multiple copies on reserve should meet the following guidelines:
1. the amount of material should be reasonable in relation to the total amount of material assigned for one term of a course taking into account the nature of the course, its subject matter and level, 17 U.S.C. SS107(1) and (3);
2. the number of copies should be reasonable in light of the number of students enrolled, the difficulty and timing of assignments, and the number of other courses which may assign the same material, 17 U.S.C. SS107(1) and (3);
3. the material should contain a notice of copyright, see 17 U.S.C. SS401;
4. the effect of photocopying the material should not be detrimental to the market for the work. (In general, the library should own at least one copy of the work.) 17 U.S.C. SS107(4).
For example, a professor may place on reserve as a supplement to the course textbook a reasonable number of copies of articles from academic journals or chapters from trade books. A reasonable number of copies will in most instances be less than six, but factors such as the length or difficulty of the assignment, the number of enrolled students and the length of time allowed for completion of the assignment may permit more in unusual circumstances.
In addition, a faculty member may also request that multiple copies of photocopied, copyrighted material be placed on the reserve shelf if there is insufficient time to obtain permission from the copyright owner. For example, a professor may place on reserve several photocopies of an entire article from a recent issue of Time Magazine or the New York Times in lieu of distributing a copy to each member of the class.
Uses of Photocopied Material Requiring Permission
1. repetitive copying: The classroom or reserve use of photocopied materials in multiple courses or successive trimesters will normally require advance permission from the owner of the copyright, 17 U.S.C. SS107(3).
2. copying for profit: Faculty should not charge students more than the actual cost of photocopying the material, 17 U.S.C. SS107(1).
3. consumable works: The duplication of works that are consumed in the classroom, such as standardized tests, exercises, and workbooks, normally requires permission from the copyright owner, 17 U.S.C. SS107(4).
4. creation of anthologies as basic text material for a course: Creation of a collective work or anthology by photocopying a number of copyrighted articles and excerpts to be purchased and used together as the basic text for a course will in most instances require the permission of the copyrighted owners, 17 U.S.C. SS107(4).
The Governors State University Library recognizes that copyright law stipulates that the individual user will bear the ultimate responsibility for reproduction, use, and distribution of all copyrighted and copyrightable materials. Therefore, the University Library requires all members of its community to be responsible for determining what materials can be copied, the amounts that can be copied, and the identification of situations wherein additional permission must be granted. However, the University Library also recognizes its obligation to educate and encourage its users to make responsible decisions about the fair use of copyrighted materials.
Additional information about copyright and fair use can be found on the University Library’s Copyright Information web page at http://www.govst.edu/library/copyright .
01/04/05
