is included in a curriculum prepared prior to the
Illustrations. Multiple copies for classroom start of the school term.
use may be made of one chart, graph,
diagram, drawing, cartoon, or picture
Cumulative effect of copying
contained in a book or periodical issue.
The copying must not have an undue
Special works. The guidelines also include cumulative effect on the market for the a category called “special works.” No
copy righted work. This test is met so long as
one is exactly sure what a special work is.
the following are true:
However, it appears that special works
• The copying is for only one course in
include works of poetry or prose of less
the school where the copies are made.
than 2,500 words intended for children
• Not more than one short poem, article,
that combine language with illustrations.
story, or essay or two excerpts from
Such special works may not be copied in
longer works are copied from the same
their entirety. Only an excerpt of up to two
author, nor more than three from the
published pages and containing not more
same anthology or other collective
than 10% of the words in the text may be
work or periodical volume during one
reproduced.
class term.
• There are no more than nine instances
Spontaneity
The idea to make the copies must come
of such multiple copying for one course
from the teacher herself, not from school
during one class term.
266 | THE COPYRIGHT HANDBOOK
The limitations on the number of articles
Electronic Copies
that can be copied does not apply to copying
Making electronic copies of copyrighted
from newspapers, current news periodicals,
works for classroom use—for example,
and current news sections of other periodicals. making them available on a course website Copyright notice
—can be a fair use, but not if the copying
A copyright notice must be included on
goes too far. This was illustrated when
all copies made. This can easily be accom-
Georgia State University allowed its profes-
plished by copying the page in the work
sors to make digital copies of excerpts from a
where the copyright notice appears. If this
number of publishers’ research-based mono-
is not done, the notice must be added to the graphs. The excerpts were made available
copies. It should be in the exact same form
through GSU’s electronic reserves system to
as on the original work.
students enrolled in courses for which the
Photocopy charges
readings were assigned, thus functioning
Finally, the teacher’s students may not be
much like an online course pack. Cambridge
charged more than the actual cost of making University Press and other publishers filed
the photocopies.
suit. Fair use was found in those cases where
fewer than 50 pages and less than 10% of
Prohibited copying
the work, or less than one whole chapter, was
copied. ( Cambridge University Pres v. Patton,
Even if all the requirements listed above are 769 F.3d 1232 (11th Cir. 2014).) The guide-satisfied, multiple copies may not be made
lines for photocopying by teachers should
to substitute for the purchase of books,
generally be followed in these cases.
publisher’s reprints, or periodicals; to create
anthologies or compilations; or to substitute
for or replace “consumable” works, such as
Copying by Libraries and Archives
workbooks, exercises, standardized tests,
test booklets, and answer sheets.
Fair use analysis becomes difficult when
In addition, the same teacher may not
copying by libraries and archives is involved.
copy the same item from term to term. Thus, Such institutions play a vital role in preserv-for example, it was not a fair use for a teacher ing and disseminating knowledge. Yet if to use the same photocopied materials for
they were permitted to engage in unfettered
three successive school terms. ( Marcus v.
copying, the market for all written works
Crowley, 695 F.2d 1171 (9th Cir. 1983).)
would be reduced and authors’ economic
incentives to create new works would be
diminished.
CHAPTER 10 | USING OTHER AUTHORS’ WORDS | 267
Congress has determined that certain
archive need not be nonprofit to qualify. A
types of unauthorized copying by libraries
library or archive owned by a profit-making
and archives must be permitted whether or enterprise or proprietary institution may
not it would constitute a fair use under the
qualify for the exemption so long as the
standards discussed above.
copying itself is not commercially motivated.
There are two separate exemptions
This means that a profit may not be earned
available for libraries and archives: The first from the copies themselves—for instance, exemption gives libraries and archives the
they could not be sold for a profit—but
right to make up to three physical or digital the information contained in the copies
copies of any work for certain purposes. The may be used to help a company make a
second exemption allows copies to be made profit-making product. For example, the
only of those works that have entered the
exemption might be claimed by research
75th year of their copyright term.
and development departments of chemical,
pharmaceutical, automobile, and oil com-
Copying for Archival or Replacement
panies; the library of a private hospital; and
Purposes or at User’s Request
law and medical partnership libraries.
However, if the library or archive is not
Books or other written works often are lost
open to the general public, it must be open at
or become worn out. Replacing them may
least to persons doing research in the special-
be difficult where the work is out of print.
ized field covered by the library collection
In this event, can a library make a new copy who are not affiliated with the library or its itself without obtaining permission from
owner. This requirement eliminates many
the copyright owner? Library users often
libraries and archives owned by private
ask librarians to photocopy articles from a
companies that are open only to employees.
periodicals. Can a library legal y make the
copy? The answer to both questions may be
When does the exemption apply?
yes if the fol owing special exemption applies. The special exemption may be claimed only Which libraries and archives may
if all of the following are true:
benefit from special exemption?
• The library or archive owns the work as
part of its collection.
The exemption applies to all nonprofit
• No more than three physical or digit
al
libraries and archives—for example, municipal
copies of the work are made at one time.
libraries, university and school libraries, and
• No charge is made for the copying
government archives. However, a library or
beyond the costs of making the copy.
268 | THE COPYRIGHT HANDBOOK
• The copies contain the same copyright
Replacement of lost, damaged, or obsolete
notice that the work itself contains; if
copies. A library or archive may also make
the work contains no notice, a legend
up to three physical or digital copies of a
must be included in the copies stating
published work that is lost, stolen, damaged,
that the work may be protected by
deteriorating, or stored in an obsolete
copyright.
format. A format is considered obsolete
So long as these requirements are met,
when the device necessary to read the work
it is permissible for a library or archive to
is no longer manufactured or is no longer
make an authorized photocopy of a work
reasonably available in the commercial
under the following four circumstances.
marketplace. As with unpublished works,
Archival reproductions of unpublished
if digital copies are made, they may not be
works. Up to three copies of any unpublished made available to the public outside the work may be made for purposes of preserva- library or archive premises.
tion or security, or for deposit for research
Library user requests for articles and short
use in another library or archive. The work
excerpts. A library or archive may make one
may be photocopied or otherwise physically copy (it doesn’t have to be a facsimile) of an reproduced, or digital copies may be made.
article from a periodical or a small part of
However, if the work is digitally copied, the any other work at the request of a library digital copies may not be made available
user or at the request of another library on
to the public outside the library or archive
behalf of a library user, provided that the
premises. This means the digital copies
following are true:
could only be read on computers at the
• The copy becomes the property of the
library or archive. They may not be placed
library user.
on a network that people outside the library
• The library has no reason to believe the
may access or the Internet. But first, the
copy will be used for purposes other than
library or archives must make a reasonable
private study, scholarship, and research.
effort to purchase an unused replacement at
• The library displays a copyright notice
a fair price. This will always require contact-
at the place where reproduction requests
ing commonly known trade sources in the
are accepted. (For the form of this
United States and, in the normal situation,
notice and other regulations regarding
the publisher or other copyright owner (if
it, see 37 CFR § 201.4 (1988).)
the owner can be located at the address
Library user requests for entire works.
listed in the copyright registration) or an
A library or archive may also make a copy (it
authorized reproducing service as well.
doesn’t have to be a facsimile) of an entire book
CHAPTER 10 | USING OTHER AUTHORS’ WORDS | 269
or periodical at a library user’s request (or at the have purchased themselves. The National request of another library on behalf of a library Commission on New Technological Uses
user) if the library determines after reasonable
for Copyrighted Works (CONTU) has
investigation that a copy cannot be obtained
developed the following guidelines as to
at a reasonable price, either because the work is how much copying is permissible:
out of print or for some other reason. The same
• Within any calendar year, one library
type of investigation must be conducted as for
or archive may obtain from another
replacement of lost or damaged copies (above).
library or archive not more than five
In addition, the same good-faith and posting
copies of any factual article or articles
requirements must be met as for reproduction
from a single periodical published less
of articles and short excerpts (above).
than five years previously. The five-copy
limitation applies even if each copy is
No multiple copies
of a different article or from a different
The library and archive exemption extends
issue. All that matters is that all the
only to isolated and unrelated reproductions
articles came from the same periodical
of a single copy. It does not authorize related
and were published not more than five
or concerted reproduction of multiple
years before the copies are made.
copies of the same material, whether at the
• A library or archive may not obtain
same time or over a period of time. This is
from another library or archive more
so whether the copies are intended for one
than five copies of material other than
individual or a group. For example, if a
factual periodical articles from any
college professor instructs his or her class to
given work within any calendar year.
read an article from a copyrighted journal,
• If the requesting library or archive has
the school library would not be permitted to
on order or in its collection the item
reproduce copies of the article for the class.
that it wants copied, but does not have
the item in its possession at the time
No systematic copying
and cannot reasonably repossess it at
the time, the copy made at its request
Systematic copying is also prohibited. This
will not count toward the maximum
means that a library or archive may not
number of permissible copies.
make copies available to other libraries
• A library or archive may not satisfy
or groups of users through interlibrary
another library’s or archive’s request for
networks and similar arrangements in
copies unless the request is accompa-
such large quantities so as to enable them
nied by a representation that the request
to substitute the copies for subscriptions
conforms with these guidelines.
or reprints that they would otherwise
270 | THE COPYRIGHT HANDBOOK
• Every library or archive must keep on
the last 20 years of the 95-year copyright
file each request for copies it made to
term. However, three requirements must
other libraries or archives.
first be met. Following a reasonable inves-
tigation, the library or archive must have
Photocopying beyond the
determined all of the following:
scope of th
e exemption
• The work is not subject to normal
Unauthorized copying that is not covered
commercial exploitation—that
by, or goes beyond the limits of, the special
is, cannot be purchased from the
exemption is permissible only if it is a fair
publisher or booksellers.
use under the more flexible fair use factors
• A copy of the work cannot be obtained
discussed above.
at a reasonable price.
• The copyright owner of the work has
Photocopying by library patrons
not filed a notice with the Copyright
Office that either of the first two
Many libraries refuse to make copies
conditions cannot be met (see below).
for patrons. Instead, they simply install
The exemption does not apply to
coin-operated machines for patrons to
unpublished works and may only be
use themselves. A library or archive is not
claimed by libraries or archives themselves,
liable for unsupervised use of photocopy
not by people who use them.
machines on its premises provided that a
proper warning notice is displayed. For the Few works are covered by exemption
form of this notice and other regulations
regarding it, see 37 CFR § 201.4 (1988).
Since the exemption only applies to works
that have entered their 76th year of copyright
protection, few works are currently covered.
Copying Works Over 75 Years Old
In 2006, only works published between
In 1998, the Sonny Bono Copyright Term
1923–1930 were covered; in 2016, only works
Extension Act extended the copyright term published 1923–1940 were covered, and so on.
for works published before 1978 from 75
to 95 years. The act also included a new
exemption for libraries and archives. Under
TIP
this exemption, a library, archive, or non-
The majority of works first published
profit educational institution functioning as in the United States before 1963 are in the public a library or archive may reproduce, display, domain because their copyrights were never or perform in physical or digital form for
renewed. Such works may be copied freely for any
purposes of preservation, scholarship, or
purpose. Therefore, libraries and archives should
research a copy of a work that has entered
first check to see if an old work they want to copy
CHAPTER 10 | USING OTHER AUTHORS’ WORDS | 271
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