Photocopying Copyright Issues

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 What is Copyright?

Copyrights prevent other individuals from using an originally authored work. The work or item that is to be copyrighted should be an original and not a reproduction or a copy of property that is already copyrighted.

Under federal copyright laws, copyrights entitle the owner to numerous exclusive rights, including the rights to:

  • Reproduce the copyrighted work;
  • Distribute copies of the copyrighted work to the public for sale;
  • Perform the copyrighted work;
  • Rights to produce a license that are derived from other copyright materials; and
  • Licensing rights to manufacture and make a product.

What is Copyright Protection?

Under federal laws, an individual automatically gets a copyright to their work once they have fixed their original work in a tangible medium of expression. The individual must have independently developed the work and not adapted the work from something else.

The work must be placed in a sufficiently permanent medium so other individuals can view, communicate, or reproduce it. Once a work has copyright protections, the creator or inventor decides who can use the work as well as for what objectives a work can be used.

Once a work has copyright protections, no other party is permitted to use that work without approval from the creator.

What is Copyright Infringement?

Copyright infringement occurs when an individual or entity violates the exclusive rights of the copyright holder. For example, if an individual sells copyrighted songs without the owner’s permission.

Punishment for infringement may include civil charges for lost profits as well as other consequences, including confiscation of the unauthorized material. Federal charges can also be filed in some infringement cases, making it a very serious offense.

Is Any Amount of Copying of a Copyrighted Work Considered Copyright Infringement?

Because of the focus of copyright on artistic and intellectual ideas, the majority of courts recognize the likelihood of creative overlap. In many cases, individuals will come up with similar ideas without consciously copying them.

In order to prevent frivolous lawsuits, the court will require a certain amount of copying for it to be considered copyright infringement.

What is the Minimum Amount of Copying Necessary to be Considered Copyright Infringement?

There is not a set standard that is applicable to all creative works because copyrights apply to everything from TV show ideas to song lyrics. However, there are 3 instances when copying is too insignificant to be considered an infringement, including:

  • Small technical violations: An example of this would be putting a photocopy of a movie poster on an individual’s wall. The movie studio technically did not permit this but no court would honor a lawsuit filed by the studio;
  • Trivial copying: For example, using verbs in an article that are also used in other articles. Courts typically require copying that shows a meaningful connection to another individual’s creative work. Using common verbs doesn’t really prove anything, but copying specific sentences from another article may be considered an infringement; and
  • Copying that constitutes a small and insubstantial portion of the copyrighted work as a whole: For instance, if an individual were to play two notes from the ending portion of a piano solo. Playing the entire portion of a piano solo’s climax would likely be considered copyright infringement.

When is Photocopying Permissible?

Photocopying is permitted when it is done for classroom use under certain conditions. The exact scope of what is permitted is not defined by law.

The law, however, does expressly permit libraries to make copies of certain works. The law also recognizes the rights of other individuals to make photocopies in libraries that have photocopying machines.

The law also protects libraries from copyright liability if certain notices are posted. The “Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions” allows the limited copying of portions of works when used for scholarly purposes.

The Guidelines specify that this type of copying must be characterized by shortness and spontaneity, implying that extensive copying of entire works is not favored and that multiple copies are to be made only if no other alternative is available due to time limitations.

What are the Specifics for Library Photocopying?

Archives and libraries are permitted to make one copy of a work so long as it is not done for commercial purposes. This privilege is typically restricted to replacing damaged works or obtaining works that are out of print.

What about Single Copying for Classroom Use?

A professor may make a single copy of any of the following as a part of their scholarly research or as preparation for teaching:

  • An excerpt from a book;
  • A newspaper or periodical article;
  • Whether from a collective work or not, a short story, essay, or poem; and
  • Charts, pictures, graphs, diagrams, drawings, or cartoons from:
    • books;
    • periodicals; and
    • newspapers.

What about Multiple Copies for Classroom Use?

For classroom use, the professor who is teaching the course may make multiple copies, which do not exceed one copy per pupil, if:

  • There is brevity and spontaneity in the copying;
  • The copying meets the cumulative effect test; and
  • A copyright notice is included with every copy.

What is Brevity?

  • For poetry: An excerpt of no more than 250 words from a lengthy poem if that poem is less than 250 words and is printed on no more than 2 pages;
  • For prose: An article, story, or essay not exceeding 2,500 words, or an excerpt from a prose work that does not exceed 1,000 words, or 10% of the work, whichever is less, with a minimum of 500 words. To complete an unfinished line of a poem or an unfinished paragraph of prose, these numerical limits may be expanded;
  • For illustrations: A chart, graph, diagram, drawing, cartoon, or picture should be included in each book or issue of a periodical; and
  • Special works: Certain works of poetry, prose, or poetic prose, typically those combining language with illustrations and, in some cases, intended for children, sometimes for a general audience, fall short of 2,500 words in their entirety. Excerpts containing not more than two of the published pages of a special work and not more than 10% of the words found in the text may be reproduced.

What is Spontaneity?

Spontaneity applies in the following ways:

  • Professors copy at their own initiative and inspiration; and
  • It would be unreasonable to expect a response to a request for permission so close in time to the inspiration and the decision to use the work for maximum teaching effectiveness.

What is Cumulative Effect?

Copies of the material are only made for one course in the program, school, or college that is requesting them. The aggregate material that is copied during a class term is not permitted to exceed:

  • One short poem, article, story, or essay;
  • Two excepts from the same author; or
  • Three excerpts from the same collective work or periodical.

There cannot be more than 9 instances of multiply copying in one single academic term. Certain works are not subject to brevity limitations, including:

  • Illustrations and prose in current news periodicals; and
  • Newspapers and current news sections of other periodicals.

What are the General Prohibitions under the Classroom Guidelines?

Even if an individual’s copying complies with the guidelines discussed above, the following is prohibited:

  • Copies cannot be used to create, replace, or substitute for anthologies, compilations, or collective works. Due to accumulating copies and using them over the course of the term, replacement or substitution may happen;
  • It is not possible to copy all parts of the works that are intended for use in the course of studying or teaching. Workbooks, exercises, standardized tests, and test booklets fall into this category; and
  • In addition, copying cannot:
    • replace the purchase of periodicals, publisher’s reprints, or books;
    • be directed by a higher authority; or
    • be repeated by the same professor over and over again.

Should I Seek the Advice of an Attorney?

If you have any issues, questions, or concerns related to the laws on photocopying, it may be helpful to consult with a copyright lawyer. Your lawyer can advise you regarding the laws that apply to the work you are interested in copying and using.

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