This discussion addresses the law governing the making and distribution of multiple photocopies for students’ academic use or “course packets.” Increased use of course packets over the past years, changes in methods of obtaining permissions to copy works, and recent court decisions make it imperative that members of the University understand how the law applies.
University policy requires all members of the Yale community to comply with the U.S. Copyright Act and related copyright laws. Respect for intellectual property rights is a shared value of the Yale community. Furthermore, violations of the law can result in liability for substantial damages to the copyright holder (and in extreme cases even criminal penalties).
The use of any copyrighted materials in course packets requires permission from the copyright holder unless the material falls under the definition of “fair use” or is in the public domain. As discussed below, the surest way to avoid violations is to obtain permission from the copyright owner before using any copyrighted materials. However, this area of the law is complex and not entirely settled, and to adopt strict and inflexible rules on copyright compliance would, in some cases, impose burdens on faculty and students beyond those required by the law. This memorandum describes when permission is clearly not required and explains the fair use factors to be considered in evaluating whether copyright permission is required. In general, the standards for determining fair use are extremely subjective and difficult to evaluate. The OGC has a Fair Use Tool to aid in your evaluation. One should err on the side of caution by seeking permission from the copyright holder before making or having multiple copies made for students’ academic use.
Please contact the OGC if you have any questions about understanding how the copyright laws may apply to your situation.
The first question to ask before making multiple copies of a written work is whether that work is protected by copyright. If the work is fairly contemporary, the answer most of the time will be “yes.” Copyright protects virtually all contemporary written works (in addition to other types of works in tangible form such as motion pictures and recordings), whether published or unpublished, in print or out of print. In general, the only written works, old or new, not protected by copyright, and thus considered to be in the “public domain,” are works whose copyrights have expired (all works published more than 75 years ago or before 1930), works of the United States Government and certain other official documents such as federal and state judicial opinions and statutes, and a narrow category of works published before March, 1989, that fail to carry a valid copyright notice. You may freely reproduce any work that is in the public domain. For more detailed information on when works enter the public domain please see the chart created by Lolly Gasaway, entitled “When Works Pass Into the Public Domain.”
Works protected by copyright can only be copied with the copyright holder’s permission, unless the copying is considered a fair use. Since the Copyright Act provides for but does not clearly delineate the boundaries of fair use, it is necessary to make a reasoned decision using the available standards and guidelines before making copies of a copyrighted work without permission.
In 1976, representatives of publishers and educational institutions negotiated a document entitled “Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions,” to provide guidance on what classroom copying would clearly be considered fair use. This document does not have the force of law but was incorporated in the legislative history of the Copyright Act of 1976 and has been recognized by Congress as a “reasonable interpretation of the minimum standards of fair use.” If your proposed copying falls within the Guidelines, it is a fair use. Copying which exceeds the Guidelines also may be a fair use, but you will need to undertake a more subjective analysis under the fair use factors. For help with your analysis, consult the Fair Use Tool.
A single copy may be made of any of the following at the individual request of any teacher or scholar for use in research or teaching:
Longer excerpts may be permissible depending on the relationship to the work as a whole. Copying should not substitute for the purchase of books or periodicals. Yale’s interlibrary services will order copies of articles or publications the library does not hold, but they record orders and may reject requests that exceed the library’s limits.
Multiple copies (not exceeding 1 copy per pupil) may be made by or for a teacher giving a course for classroom use, or discussion, provided that all the following requirements are met:
1. The copying is brief. In this context, brief means:
2. The copying is spontaneous.
3. The copying does not have an improper cumulative effect. In order for copying not to have an improper cumulative effect:
4. The copying does not violate any of the following general prohibitions:
5. All materials copied under these provisions shall bear a notice of copyright on the first page. This notice should be in the following form: (c) year of copyright, name of copyright owner.
Although the Guidelines have been recognized by Congress as a “reasonable interpretation of the minimum standards of fair use” and are cited by judges in their assessment of fair use, they are not intended to limit the types of copying permitted under the standards of fair use developed by the courts. Those standards are codified in Section 107 of the Copyright Act and are known as the “fair use doctrine.” For a more in-depth discussion, consult the Fair Use Tool and use the worksheet or evaluator for making your fair use determination.
If the copying does not clearly qualify as fair use, taking into account the four fair use factors as well as the Guidelines, one can obtain permission for copying either directly from the publisher or through the Copyright Clearance Center (CCC). You can choose either to perform these tasks yourself or use a copy center that will obtain permission and pay the fees and royalties for you.
The most efficient way of obtaining permissions from many publishers is to use the Academic Permissions Service of the Copyright Clearance Center, either through an individual or departmental subscription or through a copy service that subscribes to the Service. The CCC can be contacted and permission requested on the web at http://www.copyright.com. In addition, Yale Printing & Publishing Services (YPPS) works directly with the CCC to obtain permissions. YPPS is also available to scan and copy your course packet materials. The course packet fee charged by YPPS will consist of the reproduction, assembling and permission costs. YPPS requires approximately one week to ten days to fill course packet orders. You can contact YPPS at 203-432-6560 or visit the YPPS website at http://ypps.yale.edu/. If you bring your materials to another copy shop you should make sure that the copy shop has a permissions process.
Another way of obtaining permissions is to contact the publisher/copyright holder directly. Some publishers who are registered with the CCC will provide permissions only through the CCC while others handle direct permission requests as well. Requests for permission to copy portions of books, journals or other periodicals should be directed to the Permissions Department of the publisher/copyright holder. If your request for permission is denied or if the copyright holder imposes conditions that you are unwilling to meet, the most prudent course would be not to use the requested material. If in such situations it was a close case whether copying the materials without permission would have constituted fair use in the first place, ask the Office of the General Counsel for assistance in reconsidering the question of fair use. Click here for a sample form.
This discussion is intended to provide general guidance. If you have any questions, please contact the Office of the General Counsel.