A 36-page pamphlet of Intellectual Property Guidelines and Fair-Use Principles -- from which this article is adapted -- was recently issued under the auspices of the Consortium for Educational Technology for University Systems (CETUS), and endorsed by California State University (CSU), the City University of New York (CUNY), and the State University of New York (SUNY). Titled "Fair Use of Copyrighted Works: A Crucial Element in Educating America," it summarizes the initial conclusions of the CSU-CUNY-SUNY Work Group on Ownership, Legal Rights of Use and Fair Use.

The Consortium suggests that copyright law is at the critical juncture, particularly in response to new technology which allows digital conversion of images and texts and transmission of data to remote locations. And because educational institutions are increasingly relying on that technology, they have a stake in the direction copyright law takes and they have the power to affect its course.

The legal framework of fair use

The principle of fair use is embodied in Section 107 of the U.S. Copyright Act of 1976. It exempts instances of the limited use of copyrighted materials from infringement liabilities, specifically in cases related to teaching, research and scholarship.

In determining fair use, the following factors are considered: 1) the purpose and character of the use (e.g., whether use is of a commercial nature or is for non-profit 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 upon the potential market for or value of the copyrighted work.

In evaluating fair use, all of these factors are taken into account and all are open to interpretation. (When questions of fair use arise, for example, an educational purpose alone does not make a use fair.) Inevitably, some interpretations, and their subsequent reconstructions by policy-makers and interest groups, have been especially problematic for educational institutions.

Court rulings threaten the application of fair-use restrictions to such common practices as photocopying for research and teaching and even to quoting from historical manuscripts. Similar restrictions will surely soon extend to new technologies. The government's National Information Infrastructure (NII) Task Force has already issued proposals for revision of the Copyright Act as applied to the "information superhighway." The proposals are likely to strengthen the rights of copyright owners without commensurate allowance of fair use.

When such proposals do not further a university's academic mission, universities are obliged to actively oppose such proposals and support legislation which promotes the fair use of copyrighted work. For this reason, the authors of the pamphlet strongly advocate the formation of a national alliance of colleges, universities, and other educational associations which will focus on an understanding of intellectual property rights and address the critical role of fair use in teaching, learning, and scholarship.

Illustrative scenarios

The pamphlet illustrates its points with descriptions of numerous situations which were selected from current practices in higher education and, depending on the facts, may or may not pass scrutiny under the fair-use test. The examples were intended to emphasize the growing range and complexity of copyright and fair-use issues on campus, though, as will be apparent, rarely does the law provide a clear answer that fits all cases. We reprint several below.

Developing a slide collection

A professor photographs and makes slides of a number of reproductions of artworks in a book on Italian painting and sculpture. She plans to show the slides to the students enrolled in her course.

Analysis: The scenario is much more problematic than it appears. The purpose may be clearly educational, but when the professor copies a photograph, she is reproducing the entire work of the copyright owner. Fair use seldom allows the reproduction of an entire copyrighted work. Further complicating the scenario is the contention that a photograph of a work of art actually embodies two copyrights: the first is the copyright to the original art; the second is the copyright to the photograph of the work of art. By that standard, even if the original painting is now in the public domain, the photograph of it may still be under copyright protection. A textbook with multiple art images is likely based on the work of many different photographers. Perhaps the most feasible method for arguing that the amount and effect factors may weigh in favor of fair use is by reproducing only a small number of images from any one textbook. Adverse effect on the market may also be minimized if the publisher does not sell either select slides or a set of slides from the textbook.

Adapting materials for students with disabilities

A university serves many students with various disabilities. Certain works need to be adapted to serve their needs, perhaps by creating large-print copies of some materials or by creating a close-captioned version of a commercial educational videotape. The copyright owners have not authorized anyone to make such versions available for purchase. In addition, some of these adapted materials might be electronically delivered to disabled students in their homes.

Analysis: Adapting materials for students with disabilities raises several problems under traditional fair-use analysis. First, the students generally need the entire work, so the amount factor will often weigh against fair use.

Students also need a wide range of materials, often including works of fiction and feature release motion pictures. In some cases, the nature of the material can weigh against fair use on the grounds that making and providing any copy under any circumstances will deprive the owner of a potential sale and create an adverse effect on the market.

The making of a single copy for one-time use may have at best a limited effect on the market, but anytime such a work is disseminated in copies or otherwise distributed or broadcast to the students, the effects on the market will be compounded.

Fair-use law may ultimately protect the adaptation of short works or excerpts from longer works as may be needed to serve the requirements of specific students enrolled in specific courses. Fair use is less likely to encompass the adaptation of a full textbook or full motion picture for long-term retention in anticipation of unspecified needs.

Downloading or printing a document from the Internet

A professor is conducting research by finding materials on the Internet and locates a report that is directly relevant to his current study. The document was made available on the Internet with the copyright owner's permission, and the professor had lawful access to it. For research purposes only, the professor wants to download a copy of the document to a computer disk or print a copy on the attached printer.

Analysis: The Internet provides access to a wealth of original material and, although it is freely and easily accessible, we must assume that original materials on the Internet are protected by copyright until we learn explicitly that the copyright owner has dedicated the materials to the public domain, or the copyrights have expired. Therefore, the fair-use limits for materials found on the Internet are essentially the same as the fair use of materials disseminated by any other means.

Single copies of short items for a person's own study may fall within fair use. If a work is freely available on the Internet, making a copy will have little or no effect on its market simply because no commercial market for the work has been established or claimed. Nevertheless, some publishers have argued that the potential market for charging Internet users for each copy means that any copying hinders the market. In the meantime, copying of works that are freely accessible to the public for personal uses only will likely satisfy the purpose and the effect factors of fair use.

As with photocopying, one might reasonably conclude that the nature factor would favor uses of non-fiction rather than fiction, and that the amount factor might reasonably favor copying excerpts of longer works or copying short essays or articles rather than copying an entire book or other longer piece.

Electronic reserves

A professor has been told by students that it is difficult to obtain reserve materials because of the large number of students enrolled. As an alternative, he scans several journal articles onto the campus network and instructs the students on how to access them so they may complete the class assignments.

Analysis: Access restrictions can have the greatest influence on tipping the factors in favor of fair use. A problem with making text available on any network is that it can be accessible by readers far beyond the intended audience of students registered in the class. Thus, restrictions on access through passwords or other systems can enable the professor to argue that the purpose is solely to benefit the students and not to provide access for others.

Restrictions can also limit the potential adverse effect on the market for the original. By limiting the range of users who may find the document, the professor can minimize or eliminate any possibility that someone will retrieve the work from the network instead of purchasing a copy. Some critics of electronic reserves have argued that the educational purpose and the minimal market effects cannot be controlled because the electronic medium allows users to print, download, and transmit copies at little cost or effort and thereby undermine the restricted access.

The professor must also watch closely the nature of the material posted on reserves and the amount of material from the original source put on reserves.

Multimedia production

A professor teaches a course in which she occasionally uses a piece of music, shows a picture, or plays a piece of videotape. She has lawfully obtained all of these materials and clearly may use them in face-to-face teaching under the Copyright Act. But the professor would like to reproduce these short items onto one compact disc in order to prevent their loss or deterioration, keep them organized, and show them in class by using a single piece of equipment.

Analysis: Guidelines for such uses are currently the subject of negotiations among diverse interest groups under sponsorship of the Consortium of College and University Media Centers. In general, these guidelines would allow the creation of such a multimedia work in the name of fair use and allow its retention and use in the classroom for up to two years without permission.

One of the complex fair-use issues for multimedia production has been an understanding of its potential effect on the market for originals. Even brief excerpts, reproduced into digital format, are sometimes said to directly undermine the ability of the creator or publisher to market or license such excerpts. Thus, making the copies would directly erode that potential market.

Also problematic is the nature of the different works. Some materials may be of a factual or scholarly nature and thus more amenable to fair use. Other materials used in multimedia are often professional photography, music, or motion pictures which may have a significant public market.

Note: An electronic version of "Fair Use of Copyrighted Works: A Crucial Element in Educating America" is available on the World Wide Web through the homepage (http://www.cetus.org) of the Consortium for Educational Technology for University Systems.