Copyright & the University Community by Georgia Harper A Monograph of The Office of General Counsel The University of Texas System August 1993 Copyright The University of Texas System 1993. Copying for nonprofit purposes is permitted consistent with fair use. Introduction A primary mission of the University community is the exchange and development of ideas and information. This brings us into daily contact with the expressions of those ideas embodied in print media, audio and video media, and computer media, among others. Universities are the producers as well as consumers of such expression. Many of the works containing these ideas are copyright protected and the consequences of infringement can be quite serious, therefore, an understanding of the impact of the copyright laws on our ability to utilize these works is very important. The purpose of this monograph is to explain the current state of copyright law as it affects the use of copyright material by the University community, and to point out the risks involved when those materials are copied or, in the case of audio and visual works, performed. The copyright law is intended to increase the free flow of ideas in order to further progress in science and the arts. Implementation of this law requires balancing the incentives given to authors to create works (the exclusive rights of reproduction, distribution, performance, etc.) against free access of others to the ideas contained in those works. It is easy to imagine that a system seriously out of balance either way would hurt progress in science and the arts; no protection for authors might mean that fewer would be willing to invest the time and energy to create works; total control for authors or publishers over their works might severely restrict the public's use of the ideas contained in the works to develop new or derivative works or ideas. "Fair use" is the concept that provides balance between the two extremes. This monograph attempts to describe what can lawfully be done with copyrighted works without permission from the author, including uses that are within the boundaries of fair use and uses that are within other statutory exemptions from liability for infringement. There is much debate about what is fair use and what is not. Therefore, what follows is an attempt to explain the concept of fair use based upon a good faith reading of the statutes and cases addressing the issue, and the risks that are involved when copying goes beyond the bounds of fair use or other exemptions. Ultimately, fair use is what the courts decide it is on a case-by-case basis, taking into account all of the facts in a particular case. University Copy Centers: Do They Pass The Fair Use Test? =============================== Recent developments in copyright law provide the basis for potential legal claims against The University of Texas System and its component institutions with respect to the reproduction of certain printed material by "Copy Centers." A Copy Center, for purposes of this discussion, is a University facility that accommodates the needs of faculty and students for reasonably priced copies of materials that are required reading. Faculty members generally submit their required reading lists, i.e., chapters, articles, or excerpts from books and other publications, and the Copy Center prepares "packets" that contain these materials and makes them available to students. The charge for these packets is based upon the cost of preparation, including overhead, without any profit. Ordinarily, copying printed material without the permission of the copyright owner is a violation of the rights of the copyright owners. Educational institutions have long relied upon the "fair use" exception of the copyright laws for protection from liability for the copying activities of Copy Centers.[1] Section 106 of the Copyright Act provides that "Subject to sections 107 through 118, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords;..." Section 107 provides that 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. Until recently most school and university copying for educational purposes was generally believed to be within the fair use exception of Section 107. State universities were further protected from liability for copyright infringement by the doctrine of sovereign immunity.[2] However, the Copyright Remedy Clarification Act [3] removed a state's sovereign immunity for copyright infringement, and the Kinko's case [4] cast into doubt whether copying activities of University Copy Centers described above actually come within the fair use exception. Can the Copy Center activities pass the fair use test? In order to answer this question it is necessary to review Section 107, the Kinko's case, other cases that interpret Section 107, and a document called "Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with respect to Books and Periodicals." This document, hereafter referred to as the "Guidelines," is the product of negotiations between representatives of copyright owners and certain educational institutions in an effort to address the fact that Section 107 does not give adequate guidance to educational institutions about fair use of copyright material for classroom purposes.[5] Since the Guidelines are included in the House Report on the Copyright Law, they have special legal significance. As a part of the legislative history of the 1976 amendments, the Guidelines can be considered in determining the intent of Congress in amending the Copyright Act in 1976. The facts of the Kinko's case are unique, and any event of copying we might consider here would be different from Kinko's copying in many ways; nevertheless, the analysis the court used as it examined the facts of Kinko's copying can be applied to University Copy Center activities as illustrated here and at the end of this article. The Facts in Kinko's ==================== Kinko's operates a chain of copy centers all over the United States, usually located near universities and colleges. The practice the publishers complained of was Kinko's preparation of collections of excerpts from copyrighted books at the request of faculty at the nearby campuses. Kinko's copied the excerpts, assembled them into "course packets," and sold them to the students in the requesting faculty's class at a price that included a reasonable profit. Kinko's did not seek or obtain permission to copy any of the copyrighted material. Kinko's defended the practice as, among other things, a fair use. The court analyzed Kinko's copying under Section 107 and under the Guidelines and concluded that the use was not fair, enjoined Kinko's from continuing the practice, and ordered Kinko's to pay $510,000 in statutory damages and attorney's fees and costs. The parties settled the litigation without appeal; Kinko's ultimately paid the publishers $1,875,000. The Kinko's Fair Use Test ========================= A. Analysis Under Section 107 ------------------------------- The fair use analysis of the court in Kinko's considered the following factors as recited in Section 107: (1) [T]he 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. The courts have repeatedly said that no single factor is determinative; that is, there is no one fact about the copying at issue that will automatically make it fair or unfair. All four factors must be examined and the conclusions as to each weighed and balanced. Additionally, findings as to one factor influence the weight given to other factors. For example, a commercial motive under the first factor will affect the weight given the third and fourth factors.[6] This case-by-case balancing is so fact-dependent that it is nearly impossible to reliably predict what a court might conclude except in the most obvious situation. It is this imprecision and unpredictability that makes it so difficult to determine what is and what is not a fair use under the statute. The questions and answers at the end of this article illustrate the application of these factors to the kinds of copying done in Copy Centers. B. Analysis Under the Guidelines ---------------------------------- The court's analysis of Kinko's copying activities under the Guidelines required an initial determination of whether Kinko's copying qualified as educational not-for-profit copying. The court concluded that because Kinko's copied the material in question for profit, its use of copyright works was completely outside the standards for permissible copying set forth in the Guidelines. Nevertheless, the court went on to analyze the copying according to the standards of the Guidelines to show that even if not done for profit, the copying would have been excessive. Although the Guidelines are more specific than Section 107, their application also requires a balancing test. The Guidelines explicitly state that there may be fair uses that fall outside the Guidelines and, on the other hand, warn that copying that meets all the Guidelines' standards may nevertheless be unfair. The Guidelines thus acknowledge that they are not intended as the last word on the subject. In each case the court will ultimately be required to make a determination of whether classroom copying is a fair use under Section 107 and the cases interpreting it. With that in mind, the "tests" that classroom copying must meet in order to be within the standards of the Guidelines [7] follow: 1. Brevity. Articles, stories or essays must be less than 2,500 words. Excerpts must be less than 10% of the work or 1,000 words, whichever is less. 2. Spontaneity. The decision to use the work must have been made so closely in time to the need for the work that it would be impractical to seek permission from the publisher and receive a timely reply. 3. Cumulative effect. One may not copy more than one work per author, nor for more than one class per semester, nor for more than a total of nine instances of such copying. 4. Anthology proscription. Copying that meets standards 1, 2, and 3 is prohibited if the purpose is to create or to replace or substitute for anthologies, compilations, or collective works. Though the works created by Kinko's obviously were such compilations, the court did not find, as plaintiffs-publishers urged it to, that the Guidelines defined a per se prohibition against creating anthologies. To do that, the court reasoned, would do away with the balancing test required by Section 107 and substitute in its place a single inquiry into whether one article or excerpt were placed with another article or excerpt in a packet. Nonetheless, the court concluded that if copied works are cumulated into a compilation, that fact will weigh against the accused infringer in the balancing test. 5. Copyright notice. The original copyright notice must appear on all works copied. 6. Substitution for purchases. The copying cannot be done as a substitute for the purchase of books, publisher's reprints, or periodicals, and students may not be charged more than the actual cost for copying. Finally, it should be noted that the Guidelines are just that. Although they are very restrictive and the fact that they were followed will be considered by the courts, they do not have binding effect. Also copied material that might not be within the Guidelines may still be a fair use under Section 107. The questions and answers at the end of this article include further discussion of the application of each of these factors to Copy Center activities. Recommendations =============== The University of Texas System Policy [8] permits copying for classroom use consistent with copyright law, but the copyright law places the responsibility on faculty members who use Copy Centers to produce documentation showing why they believe permission is not needed in a particular case.[9] This requirement results from the fact that fair use is an affirmative defense to allegations of copyright infringement, and the accused infringer has the burden of proving that the use was fair. Thus, the nature of the fair use exception requires that records be kept in order to justify a claim of fair use. Copy Center employees and faculty must, therefore, be aware of the limitations of the fair use exception and be prepared to document their justification for reliance upon it. Reliance upon the fair use exception should be restricted to those cases that are truly exceptional and are clearly within the standards set forth above and are carefully documented as to that conclusion. Conforming to this standard may in some cases result in additional costs to the student for course materials and some additional inconvenience to faculty in the preparation procedure since publishers are just beginning to react to the new "market" for copying permission created by the Kinko's decision by streamlining their permission response process. Nevertheless, it is important to make a good faith effort to stay within the bounds of fair use in order to avoid liability for copyright infringement in activities that are an integral part of University life. If in doubt, request permission to copy from the copyright owner. How Does Your Copying "Stack Up?": Can it Meet the Fair Use Test? ================================================================= Section 107 Factors ------------------- 1. What is the purpose and character of the use? Is it of a commercial nature or is it for nonprofit educational purposes? Educators' uses for classroom instruction are for nonprofit, educational purposes. This is clearly in your favor. 2. What is the nature of the copyrighted work? If the work copied is factual in nature, it weighs in your favor. If the work is fictional, it weighs against you. 3. Are the amount and substantiality of the portion used insignificant in relation to the copyrighted work as a whole? Both the amount and substantiality of the part of the work copied will vary in each case. If the amount and substantiality are insignificant, it will weigh in your favor. If the amount and substantiality are great, it will weigh against you. It is possible to copy entire works and still be making a fair use of the copyrighted work, especially in the nonprofit context.[10] On the other hand copying an insubstantial portion of a work that is "essentially the heart of the book" may not be a fair use.[11] 4. What will be the effect of the use upon the potential market for or value of the copyrighted work? Many courts and commentators have called this the single most important element of the fair use test. It is broad and hypothetical and will weigh against the copying if it can be shown that "if the challenged use should become widespread, it would adversely affect the potential market for the copyrighted work."[12] For example, copying an entire work seems likely to affect the market because the students clearly are buying the copy instead of the original work. On the other hand, where the material to be copied for classroom use is a chapter, article, or other excerpt from a larger work, which is quite common, it is not likely that the professor would expect students to buy the entire book in order to read one chapter. Thus, this kind of copying probably does not displace the market for the original. A note of caution is in order: As copyright owners become aware of the extensive market for reprints and copying permission that was identified in Kinko's, they will certainly contend that this kind of copying displaces the market for reprints and copying permission. Courts thus far have been reluctant to let the potential loss of permission fees or royalty income change an otherwise fair use (where all the other factors already weigh in favor of fair use) into an infringing one.[13] At least for now, to the extent copying tends to displace the market for the original, it will weigh against copying. Guidelines Factors ------------------ 1. Is the copying brief? Are articles, stories or essays less than 2,500 words and excerpts less than 10% of the work or 1,000 words, whichever is less? This requirement is very difficult to meet. Six pages of 12 point type generally exceed 2,500 words. Three pages of 12 point type generally exceed 1,000 words. The average length of most journal articles is probably longer than this. Exceeding these limits weighs against copying. 2. Is the decision to copy spontaneous? Is the decision to use the work made so closely in time to the need for the work that it would be impractical to seek permission from the publisher to copy it and receive a timely reply? This factor presents a bigger problem for the copyright owner than the copier. Typically publishers are not equipped to grant permissions routinely in much less than three (3) weeks. This factor may be changing, at least partly as a result of Kinko's; however, as it is now, if the same material is copied for classroom use from semester to semester, that will clearly weigh against fair use. If a decision is reached on the reading material one or two weeks before the start of classes, it will weigh in favor of fair use, at least until the turnaround time for obtaining permission is reduced. 3. Is the copying cumulatively excessive? Has more than one work per author been copied for more than one class per semester or for more than a total of nine times? This factor is very hard to satisfy and requires careful documentation to establish. If the copying is not within these bounds, it will weigh against fair use. 4. Is the copied work in the nature of an anthology or compilation? Courts are likely to construe "course packets" to be in the nature of an anthology or compilation, and this factor will weigh against fair use accordingly. 5. Do the copied pages include the original copyright notice pertaining to the copied work? Copyright notices are no longer required to protect the author's copyright interest. If the work contains one, however, be sure to copy the page containing it and include it with the part that is copied. Failure to do so will weigh against fair use. 6. Is the copying in substitution for the purchase of books, publishers' reports , or periodicals? Where this is the case, it will weigh against a finding of fair use. 7. Are the students charged more than the actual cost of photocopying? University Copy Centers do not charge more than actual cost, so this factor will weigh in favor of fair use. Notes ===== [1] Title 17, United States Code 106, 107 (1993). Title 17 is the Copyright Act, as amended. All references to the Copyright Act hereafter will be to 17 U.S.C. ___. [2] U.S. Const. amend. XI. [3] 17 U.S.C. 101 note, 501, 501 note, 511, 910, 911. [4] Basic Books, Inc. v. Kinko's Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991). [5] The Ad Hoc Committee of Educational Institutions and Organizations on Copyright Law Revision, Authors League of America, Inc., and the Association of American Publishers, Inc. reached this agreement at the behest of Chairman Kastenmeier, Chairman of the Judiciary Subcommittee in June 1976, when Congress was considering amendments to the copyright law affecting fair use. The Agreement was included in the House Report on the New Copyright Law (H.R. Rep. No. 94-1476, pages 65-74) and has been relied upon by several courts in their analyses of the kind of copying discussed herein. The Association of American Law Schools and the American Association of University Professors, however, did not endorse its provisions and described it as too restrictive in the university setting (H.R. Rep. No. 94-1476, pages 65-74). [6] American Geophysical Union v. Texaco, Inc., 802 F. Supp.1 (S.D.N.Y. 1992). [7] The Guidelines are set out more fully in Appendix I of The University of Texas System Policy Statement on Photocopying (August 1992) ("System Policy"), which is available at all Copy Centers and is reprinted in full at the end of this monograph. [8] Reprinted in full at the end of this monograph. [9] University employees are protected from liability for statutory damages to the extent that they can show a good faith belief that what they are copying is permissible as a fair use and they are otherwise acting within the scope of their employment. 17 U.S.C. 504(c)(2)(i). [10] Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984); Williams & Wilkins v. United States, 487 F.2d 1345 (Ct. Cl. 1973), aff'd by an equally divided Court, 420 U.S. 376 (1975). [11] Harper & Row v. Nation Enters., 471 U.S. 539, 564-65, 105 S. Ct. 2218, 2232-33 (1985). [12] Kinko's, 758 F. Supp. at 1534, citing Harper & Row, citing Sony. Harper & Row Publishers v. Nation Enters., 105 S. Ct. 2218 (1985); Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984). [13] See Professional Fair Use, infra, for further discussion. Permissible Copying of Software =============================== The University of Texas System Policy[1] mandating adherence to the requirements of the copyright laws applies to the electronic copying of software that is protected by copyright just as it applies to the photocopying of printed materials. The owner of the copyright in software has the same exclusive rights as owners of other copyrighted works, including the exclusive right to reproduce the work, to make derivative works from it, and to distribute copies of it by sale or otherwise.[2] From time to time the Office of General Counsel of The University of Texas System receives inquiries regarding the proper use of software. Many of the uses inquired about are, in fact, impermissible and would constitute infringements of the rights of the copyright owner if done without permission. Examples of these inquiries are presented at the end of this article. The law in this area is not so vague, complicated, or difficult to understand as fair use, yet there is widespread misconception about what is permissible.[3] Perhaps because the copying of a computer program is so easy and inexpensive compared to the high purchase price of software, it is difficult for one to believe that it could violate the law, especially when the copying is not for "commercial" gain but for private or personal purposes. Nevertheless, such seemingly innocent copying can subject the infringer to both civil and criminal liability unless done with the permission of the copyright owner. Determining Software Copyright Status ===================================== Only copyright protected software is subject to restrictions on its use, but since a copyright symbol or statement of copyright ownership is no longer required by law as a condition of protection, one cannot safely assume from the absence of such notice that it is permissible to copy the software. There are, nevertheless, probably tens of thousands of software programs that are in the public domain. Further, there are tens of thousands of programs that are available to the public as "shareware," that can be permissibly downloaded electronically from bulletin boards, etc., and for which one pays a small fee upon deciding to use the software. Some shareware copyright owners may send a license upon receipt of the required fee, but others do not, and the user will not have proof of a right to possess a copy. There is also a class of software likely to exist on college campuses that has been created by persons employed or studying there and is freely available to others ("freeware"). The users of freeware will not have a written permission or a license to use such software, only an implied permission. Thus, software programs that are available on an individual's computer or on floppy diskettes can be categorized into (A) those that are clearly in the public domain (often stating so when the program is loaded into memory); (B) those that are definitely licensed to the user (for example, boxed software purchased through normal commercial channels, software that is site or group licensed to the users' employer, and multiuser packs containing only one set of diskettes and documentation that are licensed for a specific number of end users) or that are used with express or implied permission from the creator or copyright owner; and (C) those that are not clearly under license or used with permission and are not clearly in the public domain. It is the problems presented by the latter category that are discussed in this article. Determining whether software is in the public domain or copyright protected and, if copyright protected, whether it is shareware or freeware or must be licensed may seem at first a daunting task. The following suggestions may help users to categorize most software, leaving only those programs that give no clue at all to their status (category (C) above). This should be a very small group of the total number of programs.[4] a. Assume all software is copyright protected even if it does not bear a copyright symbol. This means that the absence of a copyright symbol does not give the user permission to copy the work. The only source for permission to copy copyrighted software is either a specific grant of that right pursuant to a license agreement or the express or implied (with regard to freeware) permission of the copyright owner. b. Maintain in a secure place any packaging materials that may contain the provisions of a license agreement between the user and the software copyright owner. Refer to these materials for information about what copying is permissible for that particular software. c. Check with the person in charge of information management to determine which software is site or group licensed to the employer and refer to those licenses for information about users' right to copy. d. Look at the programs' boot up screens, diskette outer surfaces, and program documentation to see whether there is information that indicates the copyright status of the software or a user's right to copy. Usually, for example, if a copyright owner wants the software to be freely copied, he or she will say so somewhere. Copyright Owners' Rights ======================== The specific rights of copyright owners are set out in Section 106, which states in relevant part as follows[5]: 106. Exclusive rights in copyrighted works ------------------------------------------ Subject to sections 107 through 120, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; . . . . These exclusive rights are limited with respect to software by the provisions of Section 117[6]. In effect, the law permits (A) the making of a backup archival copy because of the ever-present danger of computer system failure and (B) the automatic copying of the program as an integral part of how computers operate. (Every time a program is "run," the computer copies it from where it is stored in an area of the computer to which the user does not have immediate access into the area of the processor called random access memory so that it is readily available to the user.) Except for copying permitted by the following provisions of the copyright law: a) fair use, b) library reproduction, and c) transfer of copies[7], anything else one might want to do with a copyright protected software program is impermissible. The application of the fair use exception to the reproduction of software is, however, problematic. The statutory factors[8] seem ill-suited to the electronic medium, especially considering that copying anything less than all of a software program might jeopardize its proper operation. The Guidelines for the fair use of print media, developed in 1976[9], also seem unsuited for application to software.[10] More appropriate guidelines are needed to help educators and others determine whether a reproduction of software may be a fair use. Nevertheless, applying the statutory factors and the Guidelines developed for educational copying of print media, copying an entire software program even for a nonprofit educational use would be hard to justify as a fair use because of the effect of such copying, were it to be widespread, upon the potential market for or value of the copyrighted work. The problem with the fair use of software stems in part from the fact that users probably do not copy software programs to gain access to the ideas expressed in them (excepting reverse engineering), but rather, to gain the economic benefit of what they can do as functional computer programs. In this light, copying an entire program for personal use in lieu of purchasing the program seems entirely indefensible as a fair use. Civil and Criminal Liability ============================ There is both civil and criminal liability for infringement of the rights of a copyright owner. An infringer may be sued for either actual or statutory damages and, in addition, may be prosecuted for criminal violations.[11] The copyright owner has the right to try to prove what his or her actual damages are and collect that amount[12] or may elect to receive the damages authorized by statute ("statutory damages") in lieu of actual damages.[13] The statutory amount currently is limited to $100,000 per work infringed in any case where the court finds that there was willful infringement.[14] In either case, the copyright owner may, in the court's discretion, recover costs, which may include attorneys' fees.[15] Any person found guilty under the criminal sections of the law may be imprisoned up to one year, fined up to $25,000, or both.[16] These provisions of the law apply to all cases of infringement regardless of the media involved. It is most important to understand that the court need not find a willful infringement (that the infringer intended to infringe) in order to award damages or find guilt. Copying software simply is an infringement and a crime even if the person copying it does not know that copying is a violation of the rights of others and against the law. In short, one need not prove that the infringer intended to break the law or infringe someone's rights; all that has to be shown is that he or she copied the software, and that can be shown by circumstantial evidence such as that the infringer had access to the original software and the copy is substantially similar to the original. Recommendations =============== Respect for the rights of software copyright owners is a serious concern and requires that individuals at every level cooperate with and conform their activities to System Policy. The Office of General Counsel recommends that all employees of System and its component institutions monitor their use of software and avoid the use of unauthorized copies. All computers should be free of such unauthorized programs, and diskettes containing same should be removed from offices and laboratories. Frequently Asked Questions ========================== 1. May I make a copy of software licensed to the University and take it home in order to do University work on my home computer? Copying of licensed software to do work for the licensee may be expressly authorized in the license agreement, as is the case with some Word Perfectr software. Otherwise, it is not permitted. Even under "site" licensing, the owner licenses the user to use the software on any computer at the site and the use of the software off the site is not generally permitted. 2. May I make more than one backup copy? Section 117 authorizes "the making of another copy . . . for archival purposes only . . ." Section 117 also advises that "all archival copies" should be destroyed if possession of the original ceases to be rightful. This language arguably contemplates more than a single backup copy; nevertheless, the backup function is adequately performed by one backup at a time. There is controversy as to whether there is a right to make a copy of the archival copy if something happens to the working copy in order to have a backup to the archival copy, or whether the first (and only) backup copy must be used without additional backup until another original can be purchased. 3. May I copy software that is on a System or University network onto my hard drive, so that I can still run such programs in case the network goes down? The software licensed to the University and System for use on computer networks may be licensed under special agreements. If the agreement includes the right to copy the software onto all users' hard drives as a precaution against system failure, then such copying is with permission. Otherwise, the answer is unclear since such copying is subject to the controversy over how many backups are permitted by law, as described above. 4. May I put a program that is licensed for a single central processing unit on a network? No. 5. Once I have purchased a software program, why can't I do whatever I want with it? Making copies of copyrighted materials is one of the exclusive rights of the copyright owner. What you have purchased is the right to use a single copy of software, not the copyright itself. You may only acquire rights in the owner's copyright by permission or in a license agreement. Copyright rights in software are rarely sold to end users like tangible property; they exist in the copyright owner, not in the individual tangible copies of the software. The software can only be used in ways that do not infringe upon the rights that the owner of the copyright has retained. 6. Would the University or System defend an individual accused of infringement on University campuses or System offices? The System Policy sets out guidelines for its responsibility if an individual is charged with alleged copyright infringement. Generally, the System will defend an individual who has followed System Policy. Notes ===== [1] Reprinted in full at the end of this monograph. [2] 17 U.S.C. 106. [3] Software may be protected by a patent as well as by copyright. Whether a proposed use of software will infringe one or more claims of a patent is a much more complicated legal issue and is beyond the scope of this article. [4] These suggestions are not intended as guidance for the conduct of one's own software audit but rather are a starting point for locating information on the status of software programs generally. [5] 17 U.S.C. 106. [6] 17 U.S.C. 117. Limitations on exclusive rights: Computer programs Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided: (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or (2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful. Any exact copies prepared in accordance with the provision of this section may be leased, sold, or otherwise transferred, along with the copy from which such copies were prepared, only as part of the lease, sale, or other transfer of all rights in the program. Adaptations so prepared may be transferred only with the authorization of the copyright owner. [7] 17 U.S.C. 107, 108, 109. [8] The statutory factors include (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. See University Copy Centers, supra, for further discussion. [9] See the Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with respect to Books and Periodicals contained in the System Policy as Appendix A and reprinted in full at the end of this monograph. See University Copy Centers, supra, for further discussion. [10] The Guidelines factors include brevity, spontaneity, cumulative effect, a proscription against anthology creation and a requirement that the original copyright notice be included in copied work. See University Copy Centers, supra, for further discussion. [11] 17 U.S.C. 504, 505. [12] 17 U.S.C. 504(b). [13] 17 U.S.C. 504(c) [14] 17 U.S.C. 504(c)(2). [15] 17 U.S.C. 505. [16] 18 U.S.C. 2319. Video, Audio, and Radio ======================= Many activities that take place on University campuses involve the "performance" of videotapes and audiotapes. Showing a purchased or rented videotape or playing a record, tape, or compact disc is considered a "performance" of the copyrighted work. These activities may be infringements of the copyright owner's exclusive rights in those cases where such performances are public because the owner enjoys the exclusive right to perform the copyrighted work publicly and to authorize others to do the same.[1] Private performances, however, are not an infringement. Similarly, a public performance of a radio broadcast of a musical composition by means of a live retransmission or a delayed audiotape transmission is generally not permitted without permission from the owners of copyright in the musical composition. This permission is normally obtained from the "performance rights" groups, ASCAP, BMI, SESAC, etc., but may be obtained directly from the copyright owner as well. The exclusive performance right of the copyright owner is not unlimited. There are several exemptions that may apply to activities involving such public performances. Following is a discussion of four of these exemptions that are likely to be relevant to the University community. Limitations on the Performance Right: The Teaching, Educational Broadcasting, and Nonprofit Exemptions ================================================================ Since private performances do not infringe the exclusive rights of the copyright owner, one must first determine whether a proposed performance would be considered a public performance. A. Is the Performance Public? ------------------------------ Section 101 of the copyright law says that a performance is public if it is in a public place or if it is in any place if "a substantial number of persons outside of a normal circle of a family and its acquaintances" is gathered there.[2] Thus, the factors to consider in determining whether a performance is public include whether the place is public and the size and composition of the audience. For example, if the place where the performance takes place is a public place (open to the public), how many and what kind of people attend is not important. By definition it is a public performance. Where the place of performance is not open to the public (where the public can be excluded), the size and composition of the audience will be determinative.[3] B. Is There An Applicable Exemption? ------------------------------------- Even if a proposed performance might be considered a public performance, there may not be an infringement because the copyright law places further limits upon the performance right of copyright owners in Sections 110(1), (2) and (4).[4] Section 110(1) says that performances that take place in the face-to-face teaching activities of a nonprofit educational institution are not an infringement of the copyright owner's right. Section 110(2) exempts certain nonprofit educational transmissions (broadcasts) of performances of non-dramatic literary and musical works. Section 110(4) exempts other nonprofit performances of non-dramatic literary or musical works under certain rather strict conditions. Movies and videotapes of movies do not fit into the category of non-dramatic works; they are dramatic audiovisual works and may not be publicly performed under either of the last two exemptions.[5] Following are the elements of each exemption that must be satisfied in order for an otherwise public performance to be exempt: 1. Section 110(1) (Teaching Activities of a Nonprofit Educational Institution): a. The performance must be performed by the instructor or pupil(s) (not by a performance artist); b. The instructor and pupil(s) must be in the same place (transmissions by television, etc., do not qualify here although they may qualify under 110(2) below); c. The activity must be a teaching activity and not recreation or entertainment; d. The activity must be put on by a nonprofit educational institution; e. The activity must take place in a classroom or other area used as a classroom for systematic instructional activity; and f. In the case of performance of a videotape or movie, the copy of the work performed must have been lawfully made. For example, one cannot show an archival copy of a videotape since it would not have been made in accordance with the provisions of the copyright law (see Questions and Answers, below). 2. Section 110(2) (Nonprofit Educational Broadcasts of Non-dramatic Literary or Musical Works): a. The broadcast must be a regular part of the systematic instructional activities of a governmental body or a nonprofit educational institution; b. The performance must be directly related and of material assistance to the subject matter being taught in the broadcast; and c. The broadcast must be made primarily for reception in the school or governmental classroom or by persons who because of special circumstances are not able to get to a classroom. 3. Section 110(4) (Nonprofit Public Performances of Non-dramatic Literary or Musical Works): a. The performance must not be a transmission to the public (a television or radio broadcast); b. The performance must be without any purpose of direct or indirect commercial advantage (no profit-making purpose); c. The performance must be without any payment of a fee or compensation to performers, promoters, or organizers for the performance; and d. There must be no direct or indirect admission charge, or if there is one, the "proceeds, after deducting the reasonable costs of producing the performance, are used exclusively for educational, religious, or charitable purposes and not for private financial gain. . . ." This exemption is further subject to a right in the copyright owner to object to a performance for which there is charged an admission price by serving notice on the person responsible for the performance at least seven (7) days prior to the performance. This right allows copyright owners to prevent their works from being used to support causes to which they object for any reason. There is, however, no effective way for many copyright owners to assert this right, except with respect to copyrighted musical compositions. The "performing rights societies" (ASCAP, SESAC, BMI, etc.) have the right to make blanket objections on behalf of their clients, but there is no similar organization for copyright owners of nondramatic literary works embodied in other media like videotapes. In summary, to determine whether one may perform an audio or videotape or a record or compact disc without permission of the copyright owner, the first question is whether the performance of the videotape is a public performance. If the performance is a public performance, it may nonetheless be permissible as a teaching activity of a nonprofit educational institution, as a nonprofit educational broadcast of a non-dramatic literary or musical work, or as an otherwise allowed nonprofit public performance of a non-dramatic literary or musical work. If the activity does not qualify for exemption under any of those sections of the law, request the permission of the copyright owner before performing the work.[6] Limitations on the Performance Right: The Incidental Public Reception Exemption (The Jambox Exemption) ============================================================ Playing a radio loud enough for others to hear constitutes a performance of the musical compositions broadcast over the air waves. Whether playing such a radio broadcast might be a public performance requires the same analysis described above for audio and videotape performances. There is, however, a different exemption in Section 110 that may make such a performance permissible. Section 110(5) allows the use in public of what is called a "single receiving apparatus of a kind commonly used in private homes."[7] What qualifies as such a home radio receiver has been argued in the courts; nevertheless it is probably safe to say that if the receiver is not connected to lots of speakers by yards and yards of wires, but is just a "jambox" being played, for example, in an office, in the recreation room while people exercise (even if there is a fee charged for such an exercise class), or by a person walking down the street, the exemption would apply and the otherwise public performance would not be infringing. Frequently Asked Questions ========================== 1. May I make a copy of my videotapes for safekeeping? Many people believe that it is permissible to make a backup copy of a videotape or audiotape, especially where the tape will be used frequently, so that if it is damaged, destroyed, or lost, the backup will be available to take its place. For example, a lending library may wish to make copies of its video and audiotapes routinely and to lend out the copy or the original, retaining the other for backup purposes. In fact, only computer programs may be copied for backup purposes. This practice with audio and videotapes is a violation of the copyright law.[8] 2. Do we need a license from the performance rights groups to play radio music over our telephone system while callers are on hold? Yes. Such a broadcast would be considered "open to the public" and would not fall under any exemption. 3. We show movies about once a month in a conference room for the entertainment of our employees. We do not charge an admission price; we serve popcorn; we advertise the event in an in-house newsletter; and about 20 to 30 people come each month. Do we need permission? Yes. Even though the performance is in a place not open to the public, the number of people you indicate is "a substantial number of persons outside of a normal circle of a family and its acquaintances." Therefore, the performance is a public performance. The face-to-face teaching activities exemption does not apply because this is not a teaching activity; the educational broadcast and the nonprofit public performance exemptions do not apply because a movie is a dramatic audiovisual work and these two exemptions only apply to non-dramatic literary or musical works. As a result, the performance infringes the copyright owner's rights unless permission is obtained. Notes ===== [1] 17 U.S.C. 106. There is a separate copyright interest in the sound recording of a performance, as distinct from the underlying musical composition or other copyrighted work; however, no performance right attaches to the copyright in a sound recording. In effect, the public performance (as defined by the statute and explained infra) of a record, compact disc, or audiotape of a musical composition only infringes the performance rights of the owner of copyright in the composition itself. [2] 17 U.S.C. 101. [3] Columbia Pictures Indus., Inc. v. Redd Horne, Inc., 749 F.2d 154 (3d Cir. 1984). [4] 17 U.S.C. 110(1), 110(2), 110(4). [5] 17 U.S.C. 110(2), 110(4). [6] There are several other exemptions available under the law but for the purposes of this article and the University community these three are the most important and most likely to be relevant. [7] 17 U.S.C. 110(5). [8] Section 108 (17 U.S.C. 108) allows libraries to make a copy "solely for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost or stolen, if the library or archives has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price." This right of reproduction does not permit the making of backups. Professionals' Fair Use of Journal Articles for Scholarship, Reference and Research ============================================================ Professionals must keep abreast of an astonishing amount of literature in order to pursue their research properly, to publish, and to perform their duties successfully. Most professionals work in settings where they must share access to journals and periodicals with other professionals either by placing themselves on distribution lists or by reading journals in the library. Only a few of these articles will be of such nature that the reader might want to recall some of the ideas expressed in them at a later time while performing research, laboratory work, or pursuing other similar activities. Thus, occasionally the reader will request the librarian to make a copy for future reference. The reasons for this request may include, in addition to the fact that the journals need to continue to circulate or otherwise be available to others; the fact that only pertinent articles appropriately indexed or filed, not whole journals, can be kept in personal files; that many professionals prefer to make marginal notes on the copies; that the articles must sometimes be read later as time permits; and that errors that might otherwise occur in preserving the expressed ideas by note-taking or reliance on memories can be avoided by photocopying.[1] Also, on occasion, readers make copies of an article to send to colleagues "FYI" who may also be interested in the ideas expressed in the article. There is widespread assumption that such copying is a fair use of copyrighted material. In fact, the fair use provision of the copyright law specifically mentions scholarship and research as examples of the purposes for which photocopies may fairly be made without infringing copyright.[2] Further, the University's status as a nonprofit, educational, and research institution should weigh in favor of a conclusion that a particular use is fair under the four statutory fair use factors.[3] But, it is not a foregone conclusion that copying for such purposes is fair use; there have been several recent developments that cast considerable doubt upon whether copying for professional use will survive as a fair use into the 21st century. Most notably, as a real market for reprints and permission to copy develops, it will become easier for publishers to show concrete rather than merely speculative harm to the market for their works as a result of such copying. The decision in Kinko's[4] is generally credited with having spurred a more responsive process from publishers to requests for permission to copy.[5] The Copyright Clearance Center (CCC) has recently concluded pilot studies on blanket licensing arrangements for universities that appear to have as their premise the conclusion that much or all university copying is not fair use and therefor susceptible of permission charges. Other commentators note generally that institutions of higher education risk erosion of the right of fair use if the focus becomes maximizing profit for publishers rather than the underlying public purpose of copyright of increasing access to and dissemination of ideas and knowledge in order to further progress in science and the arts.[6] Some courts have shown a reluctance to let the potential for license fees or royalty income from reprints and permissions to copy turn an otherwise fair use into an infringing one,[7] but then what constitutes "an otherwise fair use" is becoming an issue as well. Drawing the line between for-profit and nonprofit purposes may seem an easy solution and might give comfort to some, but it may not be possible to draw a principled line between the two by examining the commercial or nonprofit nature of research rather than the commercial or nonprofit nature of the copying itself. Given the complex nature of funding for research today, there probably is no bright line between the two. What the Law Says About Professional Fair Use ============================================= The Copyright Act on its face is much too vague to give even a clue as to whether copying professional journal articles for research and scholarship purposes is a fair use, but the cases interpreting the statute and applying the four fair use factors indicate that such use probably would be considered fair in the University's nonprofit, educational setting. To review briefly, the four fair use factors to be considered include, but are not limited to, the following: 1) [T]he 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.[8] Applying the Law ================ Applying the four statutory factors to the kind of copying described in the first paragraph of this article, we see that the first factor weighs in our favor as we are a nonprofit university; the second factor usually will weigh in our favor because what we copy typically is factual in nature and therefore subject to less protection; but the third factor may weigh against us if each article is considered to be a discrete work; and the fourth factor may weigh against us as the market for reprints and permissions becomes established and publishers are able to show that they are losing licensing and royalty profits as a result of such copying. But, importantly, the apparent problems with the amount and substantiality of the part copied (the third factor) and the potential harm to the market for the work (the forth factor) are mitigated by the University's being a nonprofit entity. Several courts have held that copying all of a work is not fatal to a fair use defense, especially in the nonprofit context.[9] Similarly, several decisions have indicated that, even if the publisher is willing to license the making of copies or there exists a way to assess and collect royalties for permission to copy, that fact alone should not be enough to defeat a fair use defense in the nonprofit setting.[10] The Williams court specifically notes that it is error to "measure the detriment to plaintiff by loss of presumed royalty income" because such a measurement assumes the conclusion that the use was unfair to begin with and that the publisher had a right to issue licenses.[1n the recent Texaco case, the district court, decidedly critical of Williams, determined that individual copying by Texaco's scientists did not qualify as fair use (largely because it determined the copying to be for commercial purposes), but nonetheless approved the proposition that the loss of potential royalty income should not in and of itself convert a fair use into an infringing one.[12] Thus, in reality, it is the interaction of all four fair use factors that determines what weight is given to each one, and it appears that the University's nonprofit status would be very important to favorable treatment by a court. This fact, however, has the effect of dividing professionals in nonprofit settings from their colleagues in for-profit settings, both academic and industrial. This division is already beginning to happen as a result of the district court's holding in Texaco; Texaco's scientists can no longer copy journal articles without permission, and payment of fees because such copying, according to the court, is being done for commercial purposes. The court's characterization of the copying as commercial clearly affected each factor of the analysis; the same kind of copying that would probably be a fair use if done by a nonprofit institution was found to be not a fair use when done by Texaco. Even more problematic is the potential for division between activities in a university setting that are sponsored by industry and activities that are not. Could a publisher further argue that the ultimate licensing of any of our technology indicates that even our basic research is in reality done for commercial purposes? Reliance upon the nonprofit nature of research as a basis for distinguishing fair use from infringing use may not be workable if the goal is to balance interests to further the public purpose behind the law. If, however, the "commercial" inquiry were directed to the copying itself, for example, asking whether it is being done to make money directly from the copying (were the copier to subsequently sell the copies) or whether the copies clearly impact the market for the original work and are in effect substituting for additional subscriptions, rather than to the ultimate use to which the research the copying facilitated would be put, it might be possible to draw a meaningful line. This approach would also be consistent with the stated intention of Congress in enacting the library reproduction exemption that applies to reproductions made by certain libraries and archives without any purpose of direct or indirect commercial advantage.[13] The House Report discussing the exemption specifically indicates that commercial advantage refers to "the immediate commercial motivation behind the reproduction and distribution itself, rather than to the ultimate profit-making motivation behind the enterprise in which the library is located."[14] Curiously, the court in Texaco did not recognize this distinction and concluded flatly, in contradiction, that Texaco's library would not qualify for the Section 108 exemption because, inter alia, Texaco's research was done for profit.[15] In practical terms, as currently interpreted, the law does not provide a real comfort zone or a "safe harbor" because it is so difficult to confidently predict whether a court would find the use discussed here infringing or fair. Such fundamental ambiguities do not encourage either compliance with the law's protections of authors' rights or tolerance for the protections of the rights of users. Nevertheless, since University professionals must make decisions about the extent of fair use every day, and with these caveats, the question and answer section at the end of this article is offered as guidance. The Future of Professional Fair Use =================================== Thus far only photocopying has been addressed. The advances in electronic duplication and information communication technology that will be commonplace in the next ten to fifteen years will make the photocopying machine seem crude. But, even though everyone generally welcomes such advances, electronic access to and communication of information may actually be slowed down by publishers' concerns about whether they will be adequately motivated to publish if they are deprived of royalties from non-commercial duplication. Reference to the policies underlying the copyright law indicate that this kind of copying should not be considered an infringement.[16] Such copying serves the essentially public purpose underlying copyright because it facilitates the dissemination and free flow of ideas and, while it may reduce publishers' and authors' profits somewhat, it does not diminish the incentives to create. After all, most of the material is in fact authored by the same community of persons who want to use it. Publishers already appear to be including a fee for duplication, whether entitled to it or not, in the inflated prices they charge for corporate and library subscriptions as compared to individual subscriptions. In any event, the copyright law should and does provide for compensation to authors and publishers for the creation of works, but it should not compensate them for the subsequent non-commercial use of information, when such non-commercial use is reasonable and necessary in order to understand, utilize, and build upon the ideas contained in the works.[17] Technological advances in the communication of information inevitably will unleash access to and use of information in ways never contemplated by the copyright law and in ways that the law may well be inadequate to handle. The legal tensions created by these technological advances will probably get worse before anything is done to improve the situation. For now, decisions about how to utilize professional journals and other periodicals can only be made on the basis of a best estimate of the likelihood that such use will be considered a fair use. For the future though, it does not seem unreasonable to expect, given the pace of change in the field of communication technology, that the law should rationally address these issues and clearly exempt from liability for infringement non-commercial photocopying, electronic duplication and communication for the purposes discussed. It is incumbent upon the university community to take a leadership role in defining the shape of any new law in order to assure that academic and educational concerns are fairly addressed and that the balance is not tipped away from public access. Finally, the same technology that will make it easier for readers to access the ideas of others may also make it easier for publishers to charge readers for that access. It is important to remember that regardless of how easy publishers may make it for readers to obtain permission and pay royalties or license fees, it still remains the policy of the copyright law to facilitate the creation of works and the dissemination of ideas by providing a right to authors that is limited by the concept of fair use. This particular aspect of fair use should not be completely abrogated by the mere technical ability of publishers to easily charge readers for the right to do what they already have the right to do without charge. Frequently Asked Questions ========================== 1. My department subscribes to several journals that are routed to me weekly. I read them all and usually find at least one or two articles that I know I will need to refer to later. I ask my secretary to make a copy of the ones I wish to keep and I label and file them in my personal files. Is this fair use? In our nonprofit educational and research environment, this is probably fair use. It is analogous to the copying teachers are permitted to do under the Guidelines, that is, to make or have made for themselves a copy of a chapter from a book, an article from a periodical or other short excerpt from a work.[18] 2. Our department has two sections and we routinely make a copy of each journal to which we subscribe so that the journal can be distributed to the sections' members simultaneously. We usually destroy the copy after it is returned to the library. Do we need permission to do this or is it a fair use? Arguments can be made on both sides of this issue: Is copying each journal in effect a substitution for a second subscription? If so, it is probably not a fair use because copying the whole issue every week or month impacts the market for the original in the amount of the cost of a second subscription. On the other hand, if you had to make a choice between paying for another subscription and circulating the single original to all your department's members, would you choose the latter alternative? If so, no revenues are really being lost by the publisher. In either event, the destruction of the copy would support the assertion that it is made for the temporary convenience of your department's members only and not to ultimately increase your number of journal copies. This is similar to the "timeshifting" of television programs that the Supreme Court approved as fair use in the Sony case.[19] 3. I am the head of a department and when I come across an article in a newspaper or journal that I think will be of interest to certain members of my staff, I make copies and distribute them for the members' information. The number of copies ranges between two and six or seven, but on occasion has been as high as twenty when I thought everyone would be interested. This does not happen very often, only about once or twice a month. Is this fair use? Infrequent distribution of "FYI" copies to a limited number of colleagues is probably fair use based upon several theories. If your colleagues were to have read the article themselves, they may well have made a copy anyway or asked your librarian for copies individually. "FYI" copying is also analogous to the copying that teachers are permitted to do for classroom instruction.[20] Judicious use of this privilege is important though. You might ask your intended recipients if they have seen the article before making them copies; it could be that some of them read the same newspapers and journals that you do and have already read the article. 4. There are certain journals that we will not circulate because they are so frequently used as references by all our staff that we do not feel we can risk loss of or damage to the original, so we automatically make a copy of them when they come in and circulate the copy rather than the original. We toss the copy after it has been returned to the library at the end of the circulation. Do we need permission to do this? In principle, there is very little difference between this activity and the activity described above in Question 2. Both are difficult to analyze because it is unclear how a court would judge the activity. One could argue that you really should buy two subscriptions, one to circulate and one for library use only, since your copying appears in many respects to substitute for a second subscription, thereby directly impacting the publisher's market for the original. In effect, you are making a "backup" copy, which the law does not permit except with respect to computer programs.[21] Libraries are not permitted under Section 108 [22] to make copies of entire published journals except to replace lost, stolen, damaged or deteriorating works or upon request by a patron, but in either case, only if a replacement is unavailable at a fair price. This does not appear to protect the copying you describe. But as above, if buying a second subscription is really not a financially tenable alternative for you, then your copying does not really hurt that market. Again, throwing the copy away after circulation supports the "timeshifting" argument that you are copying to increase access to the works by temporarily making access more convenient. In a nonprofit setting, such copying should be fair use.[23] Nevertheless, since strong arguments can be made against such use, you might try other ways of addressing your concerns. For example, you might circulate a copy of the table of contents of the journal, letting your library respond to individual requests for copies of particular articles. This is probably a permitted use under the library exemption in Section 108, so long as your library qualifies for protection under the exemption.[24] [1] The court's decision in American Geophysical Union v. Texaco, Inc., 802 F. Supp.1 (S.D.N.Y. 1992), provides a fuller description of the reasons why professionals make copies of journal articles. [2] See University Copy Centers, supra, for a complete statement of the provisions of Section 107. [3] See University Copy Centers, supra, for a detailed discussion of the application of the four statutory fair use factors in the context of copying for classroom instruction. Much of the discussion in this article would apply equally to the issues presented by classroom instructional copying discussed therein. [4] Basic Books, Inc. v. Kinko's Graphics Corporation, 758 F. Supp. 1522 (S.D.N.Y. 1991). [5] Jane C. Ginsburg, "Reproduction of Protected Works for University Research or Teaching," 39 J. Copyright Soc'y 181, 210-211 (1992). [6] Gail Paulus Sorenson, "Impact of the Copyright Law on College Teaching," 12 Journal of College and University Law 509; Francis Dummer Fisher, "The Electronic Lumberyard and Builders' Rights," Change, May/June 1989. [7] Williams & Wilkins v. United States, 487 F.2d 1345 (Ct. Cl. 1973), aff'd by an equally divided Court, 420 U.S. 376 (1975); Texaco, 803 F. Supp. 1 (S.D.N.Y. 1992). [8] 17 U.S.C. 107. [9] Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984) (timeshifting television broadcasts for personal use is not an infringement), Williams & Wilkins, 487 F.2d 1345. [10] Williams & Wilkins, 487 F.2d at 1359; Texaco, 802 F. Supp. at 21. [11] Williams & Wilkins, 487 F.2d at 1357, note 19. [12] Texaco, 802 F. Supp. at 21. [13] 17 U.S.C. 108. [14] H.R. Rep. No. 1476, 94th Cong., 2d Sess. 75 (1976). [15] Texaco, 802 F. Supp. at 27-28. Note that the discussion of Section 108 issues in Texaco is probably dicta in that the court was limited by stipulation of the parties to a consideration of fair use under Section 107. Nonetheless, the court's discussion seems entirely incorrect. Further, if Texaco's scientists cannot make a fair use request to copy any articles under Section 107, the rights of Texaco's library to honor its patron's requests under Section 108 are eviscerated, and Congress' intention to permit such for-profit company associated libraries to honor their patrons' requests is thwarted. [16] Notes, Toward a Unified Theory of Copyright Infringement for an Advanced Technological Era, 96 Harv. L. Rev. 450 (1982). [17] Atari Games Corp. v. Nintendo of America Inc., 975 F.2d 832 (Fed.Cir. 1992). [18] See University Copy Centers, supra, for discussion of the Guidelines, which are also reprinted in full at the end of this monograph. [19] Sony, 464 U.S. 417. [20] See University Copy Centers, supra, for discussion of the Guidelines, which are reprinted in full at the end of this monograph. [21] See Permissible Copying of Software and Video, Audio and Radio, both supra, for discussion of backup copying and the distinction between backups for computer programs and backups of video and audiotapes. [22] 17 U.S.C. 108 [23] Sony, 464 U.S. 417. [24] 17 U.S.C. 108. To qualify, a library must, among other things, be open to the public or if not open to the public, open to specialized researchers not affiliated with the library or the institution with which it is associated; have no purpose of direct or indirect commercial advantage from the copying itself (as distinguished from the research which the institution performs); respond only to unrelated single requests for copies which must be made for a valid purpose such as research or scholarship; and include on the copies whatever copyright notice is contained in the work. Copying Copyrighted Materials ============================= It is the policy of The University of Texas System and its component institutions to adhere to the requirements of the United States Copyright Law of 1976, as amended, (Title 17, United States Code, hereinafter, the "Copyright Act") including ensuring that the restrictions that apply to the reproduction of software are adhered to and that the bounds of copying permissible under the fair use doctrine are not exceeded. Accordingly, all faculty, staff and students of The University of Texas System and its component institutions should adhere to the following policy guidelines: 1. Only copyrighted materials are subject to the restrictions in this Policy Statement. Uncopyrighted materials may be copied freely and without restriction. Because a copyright notice is not required for copyright protection of works published on or after March 1, 1989, most works (except those authored by the United States Government) should be presumed to be copyright protected, unless further information from the copyright holder or express notice reveals that the copyright holder intends the work to be in the public domain. With regard to works published prior to March 1, 1989, a copyright notice generally is required in order for them to be copyright protected. 2. Copyrighted software may be copied without the copyright owner's permission only in accordance with the Copyright Act. Section 117 of the Act permits the making of a single archival back-up copy. Most software, however, is licensed to the user and the terms of the license agreement may give the user "permission" to make copies of the software in excess of the single archival copy permitted by the Copyright Act. Each software license agreement is unique, and its terms and provisions will vary from product to product and from company to company. As a result, the extent of the user's rights to copy licensed software beyond that which is permitted under the Copyright Act cannot be determined without reference to the user's license agreement with the software copyright owner. It is the policy of the University of Texas System that any copying or reproduction of copyrighted software on System or component institution computing equipment must be in accordance with the Copyright Act and the pertinent software license agreement. Further, faculty, staff and students may not use unauthorized copies of software on System or component institution owned computers or computers housed in System or component institution facilities. 3. Copyrighted materials may be copied without the copyright owner's permission where such copying constitutes "fair use" under the Copyright Act. Section 107 of the Act identifies four factors to be considered in determining whether a use is fair. While this statutory "balancing test" is the ultimate test of fair use, Congress has endorsed certain Guidelines that provide more concrete guidance to educators as to the boundaries of permissible copying. These Guidelines are set forth in Appendix I hereto. Generally, copying is permissible as fair use to the extent it is permitted by the Guidelines set forth in Appendix I. In some cases, copying not within the Guidelines of Appendix I nevertheless may constitute fair use; however, before proceeding on that assumption, the appropriate administrative office of the component institution should request the advice of the Office of General Counsel. 4. In order to copy materials, including software, where (a) the materials are copyrighted, (b) copying extends beyond what is permitted by license or the boundaries of the Guidelines in Appendix I, and (c) advice of the Office of General Counsel has not been sought, permission should be obtained from the copyright owner. The information in Appendix II may be helpful in obtaining such permission. 5. When permissible under State law and procedures, The University of Texas System will arrange for the defense of any faculty or staff member against charges of copyright infringement for any copying: a) where the copying is in accordance with the provisions of a valid software license agreement, b) where the copying is within the Guidelines of Appendix I, c) where the permission of the copyright owner has been obtained, or d) where the Office of General Counsel has issued a written opinion favorable as to the permissibility of the copying. Otherwise, the faculty or staff member will be personally responsible for the defense of an action for copyright infringement. 6. Component institutions are responsible for posting notices reflecting this policy at all photocopying stations which may be used for reproducing copyrighted materials, e.g., departmental copy rooms and libraries, and at or near all computer stations that may be used for reproducing copyrighted software. A suggested form of notice is attached as Appendix III. Photocopy guidelines concerning books and periodicals should appear at all photocopy machines; copying guidelines concerning music should be placed at photocopy machines in music facilities. 7. For educational uses of music, the guidelines set forth in the legislative history of 107 of the Copyright Act generally are applicable. With respect to emergency copying permitted under those guidelines, special implementing details are set forth below. Appendix I ========== [The guidelines reprinted below are an adaptation of the actual copying guidelines agreed to by the Association of American Publishers and The Author's League of America with minor editorial changes.] The purpose of these guidelines is to state the minimum standards of educational fair use for photocopying of written materials under Section 107 of the Copyright Act of 1976, 17 USC 107. Guidelines for Classroom Copying of Books and Periodicals ========================================================= I. Single Copying for Teachers ------------------------------- A single copy may be made of any of the following or any part thereof by or for any faculty or staff member at his or her individual request: A. A chapter from a book; B. An article from a periodical or newspaper; C. A short story, short essay or short poem, whether or not from a collective work; or D. A chart, graph, diagram, drawing, cartoon or picture from a book, periodical, or newspaper. II. Multiple Copies for Classroom Use: --------------------------------------- Multiple copies (not to exceed in any event more than one copy per student in a course) may be made by or for the faculty giving the course for classroom use or discussion, provided that: A. The copying meets the following tests of brevity and spontaneity: 1. Brevity a) Poetry (1) A complete poem if less than 250 words and if printed on not more than two pages or (2) an excerpt of not more than 250 words from a longer poem. b) Prose (1) All or any portion of a complete article, story or essay of 2,500 words or less, or (2) an excerpt from any prose work of not more than 1,000 words or 10% of the work, whichever is less, but in any event a minimum of 500 words. c) Illustration One chart, graph, diagram, drawing, cartoon or picture per book or per periodical issue. d) "Special" works Certain works in poetry, prose or in "poetic prose" 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 b) 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% of the words found in the text thereof may be reproduced. [Each of the numerical limits stated in a) and b) above may be expanded to permit the completion of an unfinished line of a poem or of an unfinished prose paragraph.] 2. Spontaneity a) The copying is at the instance and inspiration of the individual teacher, and b) 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. B. The copying meets the following cumulative effect test: a) The copying of the material is for only one course in the school in which the copies are made. b) 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. c) There should not be more than nine instances of such multiple copying for one course during one class term. [The limitations stated in b) and c) above shall not apply to current news periodicals and newspapers and current news sections of other periodicals.] C. Each copy includes a notice of copyright. III. PROHIBITIONS AS TO I AND II ABOVE -------------------------------------- Notwithstanding any of the above, the following shall be prohibited: A. Copying may not be used to create or to replace or substitute for anthologies, compilations or collective works. A prohibited replacement or substitution occurs regardless of whether copies of various works or excerpts therefrom are accumulated or are reproduced and used separately. B. 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. C. Copying may not: 1. substitute for the purchase of books, publisher's reprints or periodicals; 2. be directed by higher authority; or 3. be repeated with respect to the same item by the same teacher from term to term. D. No charge may be made to the student beyond the actual cost of the photocopying. Guidelines for Educational Uses of Music ======================================== I. Emergency Copying of Music ------------------------------- A. Permissible Uses 1. Emergency copying to replace purchased copies that for any reason are not available for an imminent performance, provided purchased replacement copies are substituted in due course. 2. a) For academic purposes other than performance, multiple copies of excerpts of works may be made, provided that the excerpts do not comprise a part of the whole which would constitute a performable unit such as a section, movement or aria, but in no case more than 10% of the whole work. The number of copies may not exceed one copy per student. b) For academic purposes other than performance, a single copy of an entire performable unit (section, movement, aria, etc.) that is (1) confirmed by the copyright proprietor to be out of print, or (2) unavailable except in a larger work may be made by or for a teacher solely for the purpose of his or her scholarly research or in preparation to teach a class. 3. Printed copies that have been purchased may be edited or simplified, provided that the fundamental character of the work is not distorted, that the lyrics (if any) are not altered, and that no lyrics are added, if none exist. 4. A single copy of recordings of performances by students may be made for evaluation or rehearsal purposes and may be retained by the educational institution or individual teacher. 5. A single copy of a sound recording (such as a tape, disc or cassette) of copyrighted music may be made from sound recordings owned by an educational institution or an individual teacher for the purpose of constructing aural exercises or examinations and may be retained by the educational institution or individual teacher. (This permitted copying pertains only to the copyright of the music itself and not to any copyright which may exist in the sound recording.) B. Prohibitions 1. Copying to create or to replace or substitute for anthologies, compilations or collective works. 2. Copying of or from works intended to be "consumable" in the course of study or of teaching such as workbooks, exercises, standardized tests and answer sheets and like material. 3. Copying for the purpose of performance, except as in A(1) above. 4. Copying for the purpose of substituting for the purchase of music, except as in A.1 and A.2 above. 5. Copying without inclusion of the copyright notice which appears on the printed copy. C. It is U. T. System policy that an immediate order for the purchase of replacement copies is to be placed on a one for one basis, and all reproduced copies of the musical work are to be destroyed upon receipt of the ordered copies. Any other method of calculating the number of replacement copies to be ordered, such as an inventory taken after the performance, is unacceptable. It is expected that staff and faculty routinely involved with performances will emphasize planning procedures so as to avoid use of emergency copying on a routine basis. Appendix II =========== [The guidelines reprinted below are an adaptation of the actual copying guidelines agreed to by the Association of American Publishers and The Author's League of America with minor editorial changes.] Permissions =========== I. Obtaining Permission by Letter Request ------------------------------------------- When multiple photocopying of copyrighted material is not within the Guidelines and The University of Texas System Office of General Counsel has not given written authorization otherwise, staff or faculty members should request permission. Communication of complete and accurate information to the copyright owner will facilitate the request. Although alternatives may be acceptable, the Association of American Publishers suggests that the following information be included in a request for permission to copy to expedite the process: A. Title, author and/or editor, and edition of materials to be duplicated; B. Exact material to be used, giving amount, page numbers, chapters and, if possible, a photocopy of the material; C. Number of copies to be made; D. Use to be made of duplicated materials; E. Form of distribution (classroom newsletter, etc.); F. Whether the material is to be sold; and G. Type of reprint (ditto, photocopy, offset, typeset). The request should be sent, together with a self-addressed return envelope, to the permissions department of the publisher in question. If the address of the publisher does not appear at the front of the material, it may be obtained from The Literary Marketplace (for books) or Ulrich's International Periodicals (for journals), both published by the R. R. Bowker Company. For purposes of proof and to define the scope of the permission, it is important that the permission be in writing. The process of considering permission requests requires time for the publisher to check the status and ownership of rights and related matters and to evaluate the request. It is advisable, therefore, to allow sufficient lead time. In some instances the publisher may assess a fee for permission, which may either be passed on to students who receive copies of the photocopied material or be paid by the requesting component as an ordinary expense. II. Sample Letter Requesting Permission to Copy ================================================ Material Permissions Department Hypothetical Book Company 500 East Avenue Chicago, IL 60601 Dear Sir/Madam: I would like permission to copy the following: Title: Knowledge of Good, Second Edition Copyright: Hypothetical Book Co., 1965, 1971. Author: Frances Jones Material to be duplicated: Chapter 10 (photocopy enclosed). Number of copies: 50 Distribution: The material will be distributed to students in my class and they will pay only the cost of the photocopying. Type of reprint: Photocopy Use: The chapter will be used as supplementary teaching materials. I have enclosed a self-addressed envelope for your convenience in replying to this request. Sincerely, Faculty Member III. Obtaining Permission by Telephone ====================================== If occasional time exigencies obviate the usefulness of the prior request letter, then the infrequent use of telephone permissions is acceptable. The person receiving permission should make written notes of the time and date of the call; the name of the person authorizing copying; and the extent of the permission granted; and request and obtain a follow-up permission letter from the copyright proprietor.