The Copyright Act of 1976, (PL94-553) which became effective on January 1, 1978, has implications for individual, classroom , and library photocopying activities, lending and borrowing of materials (interlibrary loan), and more recently, electronic databases, software and the Internet. The purpose of the law is to “promote the public welfare through the advancement of knowledge.? The law also is intended to balance the rights of the author or copyright owner. While much of the law is definitive, some sections are open to interpretation.
It is important to note that the author and the copyright owner are not always one in the same. Many journal publishers require that ownership or “copyright” of a work authored by an individual be transferred to the publisher as a condition of publication. However, the copyright of the work itself remains in effect until 50 years after the death of the author, not the copyright owner. Of greatest interest to academic institutions is the provision of “fair use” found within section 107 of the copyright guidelines.
?Fair use” allows for reasonable use of a work without permission for specified purposes including scholarship, teaching, and research. These four factors determine “fair use?:
?purpose and character of the use
?the nature of the work
?the amount and substantiality of sections used as it relates to the work as a whole.
?the effect of the use to the potential market or value of the work
Unfortunately, it is this most crucial section (107) of the Copyright Act which is left open to so much interpretation. Recent court rulings, such as the American Geophysical Union. et al. vs. Texaco. Inc. have stirred further controversy on the issue of “fair use.? Seventeen months after it began, the court finally ruled against the Texaco scientist who had made single copies of eight articles from journals to
which Texaco did subscribe. The court stated that “fair use” did not apply because the copied articles were intended for his personal “archival” files rather than for direct application to his research. The court also concluded that three of the four “fair use” factors had been violated because the scientist worked in a for-profit environment. The court found that only “the nature of the work” was within “fair use” guidelines. The court did not address the broader issue of whether similar photocopying in a non?profit environment would fall within the “fair use” guidelines. It is important to note that in this case, Texaco was subscribing to all the journals in question. It was the “personal archiving” of the copies that tipped the scale against “fair use.?
Photocopying by faculty in a non-profit institution is broken down into “single copying for teachers” and “multiple copies for classroom”. A single copy may be made by, or for, a teacher for scholarly research, class preparation, or class instruction. These are the items that can be copied as defined by the guidelines: 1) a chapter from a book, 2) an article from a newspaper or periodical, 3) a short story, essay, or short work, 4) a chart, graph, diagram, drawing, cartoon or picture from a book, periodical, or newspaper. “Multiple copies for classroom” guidelines are more rigid and contain more requirements. One copy per pupil is allowed provided that: 1) the copying meets the test of brevity and spontaneity as so defined in section 107 of H.R. 2233, 2) the copying meets the cumulative effects test as so defined in section 107 of H.R. 2223, 3) each copy includes the notice of copyright (very often neglected by instructors). There are some prohibitions to the guidelines stated above. They, too, are explained in section 107 of H.R. 2223. The famous ?Kinkos? case is an example of violation of the photocopying guidelines.
Nine publishers sued New York University, several of its faculty, and Kinkos for photocopying and selling anthologies of copyrighted course material. In this case, even thought it was for educational purposes, neither the faculty nor Kinkos sought permission from the copyright holders. The “amount and substantiality” of the copying had a negative effect on the market for the works. Instructors who fail to seek permission of a copyrighted work or create anthologies to avoid purchasing textbooks are clearly in violation of the law.
Libraries are also held accountable for copying as well as interlibrary loan activity. Section 108 of the Copyright Law clearly establishes these guidelines. Interlibrary loan may not borrow more than five photocopied articles/chapters from any journal or book published within the last five years. Libraries must keep track of any “over copyright” activity that occurs during a calendar year. This usually is referred to as the “Rule of Five.? When the library reaches this limit, the article can still be obtained through a copyright clearinghouse vendor. This vendor charges for the article service as well as publisher royalty fees. These transactions typically cost $25-$30 to obtain, but copyright compliance is maintained. Interlibrary Loan is also required to keep a record of all transactions over a three year period.
Libraries are also responsible for posting a Display Warning of Copyright notice as required in section 108. These notices are to be prominently displayed near all copy machines, on each interlibrary loan form, and on all computers found within the library.
Recent copyright is sues concerning software, electronic databases, and the Internet are more complex and have yet to be specifically addressed by the law. The assumption of “fair use” should be applied to each. Computer software, while not legally defined, is assumed to have the same protection a “literary work” would have. Electronic format does not change the nature of the work relative to copyright. Once again, much is left to interpretation until definitive laws are passed.
Other issues involving audiovisual material, collection maintenance, reserves etc. also have copyright implications. Rest assured, the issue of copyright compliance will become more complex as new technologies and lawsuits are produced. Individuals and libraries are now, more than ever, held accountable for their actions.