Section 10.9

FAIR USE

The fair use provision (Section 107) of the copyright law fulfills the constitutional purpose of "to promote the progress of Science and Useful Arts." Fair use limits the copyright owner's monopoly by reserving to others the right to make reasonable use of copyrighted materials without the specific consent of the author. The doctrine is of importance to teachers, librarians, researchers, and scholars as well as to the general public.

In drafting the Copyright Revision Act, Congress codified fair use for the first time, but it clearly had no intention of broadening or narrowing the doctrine.

Section 107. Limitations on exclusive rights; Fair use

Notwithstanding the provisions of Section 106, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

1. the purpose and character of the use, including whether such use 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.

The purpose of the following guidelines is to state the minimum and not the maximum standards of educational fair use under Section 107 of H.R. 2223. The parties agree that the conditions determining the extent of permissible copying for educational purposes may change in the future; and conversely that in the future other types of copying not permitted under these guidelines may be permissible under revised guidelines.

Moreover, the following statements of guidelines is not intended to limit the type of copying permitted under the standards of fair use under judicial decision and which are stated in Section 107 of the Copyright Revision Bill. There may be instances in which copying which does not fall within the guidelines stated below may nonetheless be permitted under the criteria of fair use.

 GUIDELINES

1. Single Copying for Teachers

   A single copy may be made of any of the following by or for a teacher at his or her individual request for his or her scholarly research or use in teaching or preparation to teach a class:

   1. A chapter from a book.
   2. An article from a periodical or newspaper.
   3. A short story, short essay or short poem, whether or not from a collective work.
   4. A chart, graph, diagram, drawing, cartoon, or picture from a book, periodical, or newspaper.
2. Multiple Copies for Classroom Use

   Multiple copies (not to exceed in any event more than one copy per pupil in a course) may be made by or for the teacher giving the course for classroom use or discussion, provided that

   1. The copying meets the tests of brevity and spontaneity as defined below; and,
   2. Meets the cumulative effect test as defined below; and
   3. Each copy includes a copyright notice.

DEFINITIONS

Brevity

(i) Poetry: (a) a complete poem if less than 250 words and if printed on not more than two pages, or (b) from a longer poem, an excerpt of not more than 250 words.

(ii) Prose: (a) either a complete article, story or essay of less than 2,500 words, or (b) an excerpt from any prose work of not more than 1,000 words or 10 per cent of the work, whichever is less, but in any event a minimum of 500 words.

[Each of the numerical limits in (i) and (ii) above may be expanded to permit the completion of an unfinished line of a poem or of an unfinished prose paragraph.]

(iii) Illustration: One chart, graph, diagram, drawing, cartoon or picture per book or per periodical issue.

(iv) "Special" works: Certain works in poetry, prose or in "poetic form" which often combine language with illustrations and which are intended sometimes for children and at other times for a more general audience fall short of 2,500 words in their entirety. Paragraph (ii) above notwithstanding, such "special works" may not be reproduced in their entirety; however, an excerpt comprising not more than two of the published pages of such special work and containing not more than 10 per cent of the words found in the text thereof, may be reproduced.

Spontaneity

(i) The copying is at the instance and inspiration of the individual teacher, and

(ii) The inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission.

Cumulative Effect

(i) The copy of the material is for only one course in the school in which the copies are made.

(ii) Not more than one short poem, article, story, essay or two excerpts may be copied from the same author, nor more than three from the same collective work or periodical volume during one class term.

(iii) There shall not be more than nine instances of such multiple copying for one course during one class term.

[The limitations stated in (ii) and (iii) above shall not apply to current news periodicals and newspapers and current news sections of other periodicals.]

III. Prohibitions as to I and II Above

Notwithstanding any of the above, the following shall be prohibited:

1. Copying shall not be used to create or replace or substitute for anthologies, compilations or collective works. Such replacement or substitution may occur whether copies of various works or excerpts therefrom are accumulated or reproduced and used separately.
2. There shall be no copying of or from works intended to be "consumable" in the course of study or of teaching. These include workbooks, exercises, standardized tests and test booklets and answer sheets and like consumable material.
3. Copy shall not:
   1. substitute for the purchase of books, publishers' reprints or periodicals;
   2. be directed by higher authority;
   3. be repeated with respect to the same item by the same teacher from term to term.
   4. no charge shall be made to the student beyond the actual cost of the photocopying.

LIBRARY COPYING UNDER SECTION 108

Section 108 of the Copyright Revision Act provides certain additional copying rights to libraries open to the public or whose collections are available to outside researchers. The copying must not be done for commercial advantage and the copies must bear a notice of copyright.

Circulation Services in Jerome Library offers a Reserve Form for identifying material to be placed on reserve and also provides information on copying and reserve practices.

¹Clarifying comment added by BGSU: The above guidelines were agreed to by the Ad Hoc Committee on Copyright Law Revision, the Authors League of America and the Association of American Publishers, Inc. in 1976. They are not part of the body of the law. It is widely believed that noncompliance with these guidelines would, in effect, constitute noncompliance with the law. The intent of this agreement is to require the user to purchase the copies needed, rather than copy them, or to receive permission to copy the material from the copyright holder.