Black and white and grey all over

Every semester, professors run their well-worn, dog-eared copies of copyrighted books through copiers and scanners to reproduce readings for their students.

They are allowed to do this under the doctrine of fair use, a provision of the Copyright Act of 1976, which allows teachers to reproduce copyrighted material for their students, includes a provision on fair use. Like most universities, Yale currently provides guidelines on fair use from the Copyright Act to professors. But three of three teachers asked said the University does not go over these suggestions with new professors, and two of the three said they do not keep these guidelines in mind when reproducing copyrighted material for their students. But even legal scholars disagree on what fair use means, and how it applies to academic use.

“It’s an issue I haven’t considered,” said one professor from the Near Eastern Languages and Civilizations Department who has been at Yale for five years and wished to remain anonymous. “I have no idea about the legal ramifications.”

Another professor interviewed, who also wished to remain anonymous, said he posted six chapters from the same work on his course’s Classes*v2 page without obtaining permission from the copyright owner. Yale’s guidelines for fair use suggest that teachers only copy one chapter or excerpt per author.

The professor said he is aware of the fair use guidelines, but that he does not “consult them often enough.”

Yale’s Office of the Vice President and General Counsel provides guidelines on their website for when obtaining permission to use a work is “clearly not required,” because its distribution to a class falls under fair use.

The guidelines include, for example, allowance for the copying of a story or essay of less than 2500 words, or an excerpt of no more than 1000 words (or 10 percent) of a longer work, but only of one per author.

“The guidelines…[are] expressly not intended to prescribe maximum levels of use allowable as fair use,” said Dorothy Robinson, vice president and general counsel for the University. “Although it is persuasive authority, it doesn’t have the force of law.” Still, lawyers disagree on what exactly constitutes fair use.

Bryan Choi, who is a postdoctoral associate at the Information Society Project at Yale Law School, said the teacher’s copying of six chapters by one author probably does fall under fair use.

“Anything that’s used for teaching is more likely to be considered fair use,” Choi said, adding that judging fair use is difficult and subjective. He said he agreed with the guidelines, which advise to “err on the side of caution.”

Nancy Wolff, a partner at the Manhattan law firm Cowan, Debaets, Abrahams & Sheppard, represents authors, publishers and digital media companies. Wolff said reproducing six chapters of an author’s work “is absolutely not fair use.”

“One chapter might be fine, but six chapters? Go buy it,” Wolff said. When professors use articles to create their own textbooks, as is the case with course packets, she added, “that is not in the spirit of fair use.”

Still, many professors consider copyright when preparing course materials, perhaps in part because many also own intellectual property.

Daniel Kevles, a law and history professor, made sure to consider of his course materials were restricted by copyright law. He said in an e-mail that “the excerpts are limited enough to fall within the doctrine of fair use for educational purposes.”

Sociology professor Rene Almeling said she thought carefully about the intellectual property she used in her “Sex and Gender in Society” course. She asked the Yale E-Reserves system to scan book chapters for her course, and she said that those librarians made sure to comply with fair use standards.

“I do take into account the number of pages when assigning readings, so that I can comply with fair use standards and have my readings be eligible for inclusion in E-reserves,” she said in an e-mail.

Choi said that copying for a class only ceases to fall under fair use when “teachers cheat a legitimate economic interest,” he said. Wolff said colleges have not had legal problems with fair use in the past, but “occasionally publishers will join together and bring claims if they feel it’s gone too far.”

Philosophy professor Stephen Darwall, who runs the open-access philosophy journal “Philosopher’s Imprint,” said he is skeptical that academic use of copyrighted materials that are not textbooks can hurt publishing companies.

“When it comes to academic publishing, there’s so little money to be made that owning copyright is of little benefit,” he said. Wolff argued that fair use demands not only brevity of the reproduction but also spontaneity. . For example, she said, fair use is intended for situations in which something relevant to a course comes up in the news, and the teacher copies a newspaper article for her class without obtaining permission.

Michael Iannuzzi, owner and president of TYCO Copying and Printing, said that fair use was a reaction to the copying industry, in which he has worked for forty years. With the rise of digital media, he said, “fair use is antiquated.” The Copyright Act of 1976 was the first major upright to copyright law since 1909.

Correction: October 7, 2010

An earlier version of this article misstated that the guidelines the Office of the General Counsel provides to professors are unique to Yale. In fact, they are decided on by multiple parties and incorporated into the Copyright Act of 1976.

Comments

  • Hieronymus’ Bosh

    “Sociology professor Rene Almeling said she thought carefully about the intellectual property she used in her “Sex and Gender in Society” course.”

    Bosh. FemStud-style classes engender the highest copyright fees; why? Because no one–NO ONE–reads those articles except other bubble-heads and students forced to do so…

    A single article, properly paid for, can cost as much as a full-on LAW packet (‘course, course packs for LAW are for the week, not the weak).

    Too bad our 20th-century government came down on the Kindle(tm) program.