April 29, 1986
MEMBERS, PRESIDENT'S CABINET
I am issuing the attached University of California Policy on the Reproduction of Copyrighted Materials for Teaching and Research and the accompanying Guidelines for the Reproduction of Copyrighted Materials for Teaching and Research are intended to encourage the legitimate educational use of photocopied materials and to reduce the University's potential liability for copyright infringement.
The assumption of the Guidelines is that individual University employees will take responsibility for making the necessary decisions respecting compliance with the law. Consequently, it is essential that the Policy and Guidelines be widely distributed and that faculty and staff be made fully aware of their contents. Appendix 3 of the Guidelines discusses appropriate procedures for such distribution and notification. I would also like to ask Chancellors to establish or designate an office on each campus to serve as a central resource for faculty and staff to consult about the application of the Policy.
I want to thank everyone who participated in the review of this Policy for their valuable comments and suggestions.
David Pierpont Gardner
UNIVERSITY OF CALIFORNIA POLICY
ON THE REPRODUCTION OF COPYRIGHTED MATERIALS
FOR TEACHING AND RESEARCH
In the course of their duties, faculty and staff of the University of California may wish to use photocopied materials in the classroom and for research. In many cases, photocopying can facilitate the University's missions of teaching, research, and public service. The University therefore wishes to encourage the appropriate use of such material within the spirit and the letter of the United States Copyright Law. (Title 17 United State Code).
Copyright is a constitutionally conceived property right which is designed to promote the creation and dissemination of original works of authorship. That purpose is implemented by giving a copyright owner certain exclusive rights with respect to the owner's work, subject to certain limitations, in the mutual interest of the author, the owner, and the public. These rights include exclusive rights of reproduction, preparation of derivative works, distribution, and performance. The University strongly believes that these rights are vital in maintaining a free flow of ideas in our society.
A major limitation on the exclusive rights granted to the copyright owner is the doctrine of "fair use" (17 United States Code, Section 107) which permits certain limited copying of copyrighted works for educational or research purposes without the permission of the copyright owner. "Fair use" is a limited exception to the exclusive use of the copyright owner, which if exceeded, can subject the one making unauthorized copies and the University to severe penalties. The wide availability of copying machines has created a situation where this exception can easily be breached.
To provide guidance to all University employees, the attached Guidelines are to be used to determine whether copying is within the "fair use" doctrine. If the copying is not within the Guidelines, permission should be obtained from the copyright owner before any copies are made. If it is unclear whether copying would require such permission guidance should be requested from the Office of the General Counsel.
It is important that this Policy and Guidelines be widely distributed so that the numerous users of photocopied materials in the University will be aware of the Copyright Law.
GUIDELINES FOR THE REPRODUCTION OF COPYRIGHTED MATERIALS
FOR TEACHING AND RESEARCH
The purpose of these Guidelines is to provide direction on photocopying of copyrighted materials for teaching and research. Some kinds of works are not covered by copyright and therefore may be freely reproduced and distributed. Examples of such works are presented in Section II.
Under the "fair use" provision of the Copyright Act of 1976, you are permitted to photocopy and distribute portions of copyrighted works for educational use without securing permission from the owner or paying royalties. The law in this area is quite general, however, and it is important that certain conditions are met to insure that the copying does fall under this fair use exemption. Section III describes the explicit factors that you should take into consideration before reproducing and distributing copyrighted materials.
Situations may arise in which intended copying is not exempted under fair use. In such cases it is necessary to obtain written permission from the copyright owner before copying is done. Section IV explains some kinds of circumstances that require you to obtain permission. Instructions for securing permission are provided in Appendix 2 of these Guidelines. It is the policy of the University that users secure such permission whenever it is legally required.
II. UNRESTRICTED PHOTOCOPYING
A. Uncopyrighted Published Works
Anyone may reproduce without restriction works that entered the public domain. Any work published in the U.S. before January 1, 1978 without a copyright notice entered the public domain.
Copies of works protected by copyright must bear a copyright notice, which consists of the copyright symbol (a letter "c" in a circle, the word "Copyright" or the abbreviation "Copr.") plus the year of first publication for books and the name of the copyright owner. Prior to 1/1/78, in the case of a book or other printed publication, this notice had to be on the title page or the page immediately following: for periodicals, on the title page, the first page of the text of each separate issue or under the title heading. "Notice" requirements for works published after 1/1/78 have been relaxed somewhat with respect to both the position of notices and inadvertent omission of these, so there may be limited protection for some works on which notices do not appear. However, in such instances, if you were to innocently infringe a copyright, in a reliance upon an authorized copy from which the copyright notice had been omitted, there would be no liability for actual or statutory damages for any infringing acts committed before receiving actual notice of copyright registration, if it is proved that you were misled by the omission of copyright notice; in such a case, a court may allow or disallow recovery of any of the infringer's profits attributable to the infringement, and may enjoin the continuation of the infringing undertaking or may require the infringer to pay the copyright owner a reasonable license fee as a condition of continuation of the infringing undertaking.
B. Published Works with Expired Copyrights
Anyone may reproduce without constraint published works whose copyrights have expired. All U.S. copyrights dated earlier than 75 years ago have expired. Copyrights dated later than that may also have expired because the initial period of copyright protection prior to 1978 is for 28 years if there is no renewal. The work probably will not contain notice of the renewal. We recommend that you either assume the protection is still in effect for copyrights more recent than 75 years old, or ask the owners of them (or the U.S. Copyright Office) whether they are still subject to copyright protection. Usually publishers are either the owners or know the owners' locations. If not, owners may be located through the U.S. Copyright Office in Washington, DC.
C. U.S. Government Publications
U.S. Government publications are documents prepared by an officer or employee of the U.S. Government as part of that person's official duties. Government publications include the opinions of courts in legal cases, Congressional Reports on proposed bills, testimony offered at Congressional hearings, and reports of government employees. Works prepared by outside authors on contract to the Government may or may not be protected by copyright. As with other publications, copyright notices may be in the front (for pre-1978 publications) or on the front and back (in works published since 1/1/78. In the absence of copyright notice in such works, it would be reasonable to assume they are in the public domain.
III. PERMISSIBLE PHOTOCOPYING OF COPYRIGHTED WORKS
Teachers may reproduce copyrighted works for classroom use and for research without securing permission and without paying royalties when the circumstances amount to what the law calls "fair use."
A. "Fair Use" - Current Law
In determining whether the use is a "fair use" the law requires consideration of the following factors (17 U.S.C. sec. 107):
1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purpose;
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 of the use upon the potential market for or value of the copyrighted work.
The Guidelines in this report discuss the boundaries for fair use of photocopied material. Fair use cannot always be expressed in numbers - either the number of pages copied or the numbers of copies distributed. Therefore you should weigh the various factors in the Act to determine whether the intended use of photocopied copyrighted material is within the spirit of the fair use doctrine. You should secure permission from the copyright owner unless the intended use is clearly permissible under fair use.
B. UC Guidelines for Determining "Fair Use
Educators including representatives of higher education developed, along with publishers, a set of minimum standards of fair use which were set forth in the "Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions" (the Ad Hoc Committee Guidelines).
These standards are reproduced in their entirety in Appendix 1 and can be used as a practical approach to determine fair use. Any copying that falls within the Ad Hoc Committee Guidelines is considered to be fair use and permissible.
Since these standards are often not realistic in a University setting, the following Guidelines should be used to judge if intended photocopying of copyrighted materials constitutes fair use in teaching and research at the University of California.
1. Single Copying for Teachers
A single copy may be made of any of the following by or for a teacher at his or individual request for his or her scholarly research or use in teaching or preparation to teach a class:
a) A chapter from a book;
b) An article from a periodical or newspaper;
c) A short story, short essay or short poem, whether or not from a collective work;
d) A chart, graph, diagram, cartoon, or picture from a book, periodical, or newspaper;
2. Multiple Copies for Classroom Use
Multiple copies (not to exceed in any event more than one copy per pupil in a course) may be made by or for the teacher giving the course for classroom use or discussion provided that:
a) The copying does not substantially exceed the test of brevity as defined below; and
b) Meets the cumulative effect test as defined below; and
c) Each copy includes a notice of copyright.
(1) Poetry: A complete poem if less than 250 words or, from a longer poem, an excerpt of not more than 250 words.
(2) Prose: Either a complete article, story or essay of less than 2,500 words or an excerpt of not more than 2,500 words from any prose work.
(3) Illustration: One chart, graph, diagram, drawing, cartoon, or picture per book or per periodical issue. In some cases, such illustrations are copyrighted individually and cannot be reproduced under fair use. (See IV C below)
b) Cumulative Effect
(1) The copying of the material is for only one course per class term of the instructor for whom the copies are made.
(2) Not more than one short poem, article, story, essay or two excerpts may be copied from the same author, nor more than three from the same collective work or periodical volume during one class term.
(3) There shall not be more than nine instances of such multiple copying for one course during one class term.
The limitations stated in (1) and (2) above shall not apply to current news periodicals and newspapers and current news sections of other periodicals.
4. Prohibitions as to a) and b) above Notwithstanding any of the above, the following shall be prohibited:
(a) There shall be no copying of or from works intended to be "consumable" in the course of study or of teaching. These include workbooks, exercises, standardized tests and test booklets, answer sheets, and like consumable materials.
b) Copying shall not:
(1) substitute for the purchase of books, publishers' reprints, or periodicals;
(2) be directed by higher authority;
c) No charge shall be made to the student beyond the actual cost of the photocopying.
C. Situations Not Specifically Covered by UC Guidelines
The doctrine of "fair use" may permit reproduction of copyrighted works in excess of the word limit restriction specified in the UC Guidelines. 1. Since this is an area of unclear legal definition, you should use caution and discretion in such copying and should seek advice from the General Counsel's Office for a legal opinion, or request prior written permission directly from the copyright owner to perform copying substantially the limits enumerated in the Guidelines. 2. Any questions regarding the application of the Guidelines in specific cases, whether a work is covered under copyright protection, or the ways to secure permission from publishers should also be referred to the General Counsel.
IV. COPYRIGHT REQUIRING PRIOR WRITTEN PERMISSION FROM THE COPYRIGHT OWNER
A. Copying for Profit
"Fair use" extends only to nonprofit copying. Teachers should not charge students more than the actual cost of photocopying, and should not make copies for students who are not in their classes without obtaining permission. This applies to classroom copies made and distributed by a commercial copy center outside the University, as well as University facilities.
B. Unpublished Works
One should obtain permission from owners of unpublished works in order to copy from them. The law gives automatic copyright protection to unpublished works from the time they are created until they are published. Unpublished works, such as theses and dissertations, may be protected by copyright. If such a work was created before January 1, 1978 and was not copyrighted, the work is protected under the new Act for the life of the author plus fifty years after or until December 31, 2002, whichever shall later occur. (17 U.S.C. Section 303). Works created after January 1, 1978 and not published enjoy copyright protection for the life of the author plus fifty years. (17 U.S.C. Section 302).
C. Special Works
In some cases, certain specialized materials such as maps, anatomical diagrams, and drawings are copyrighted separately even though they appear in a text book or other printed work. In this situation, the reproduction of the material would not constitute fair use even if only one illustration from a book were used (see II B. 3. a) (3) above). You must obtain permission to reproduce such individually copyrighted materials. D. Consumable Works Teachers must secure prior written permission before making multiple copies of copyrighted works which are intended to be consumed in classroom activities such as workbooks, exercises, and standardized tests and their answers.
Owners of copyrights can attempt to halt infringement by suing for injunctions, impounding or destruction of infringing articles, and can seek costs of suit and attorneys' fees. Additionally, they can seek recoup actual money damages suffered by the copyright owner as well as the infringer's profits. When there are only nominal monetary losses, owners can, instead of seeking their actual damages, claim "statutory" damages up to $10,000 (or up to $50,000 if the infringement was "willful"). The University will defend an employee who photocopies in the course and scope of his or her employment duties.
Even if the copying is held to infringe, the Copyright Act exempts employees of non-profit educational institutions, libraries, or archives from statutory damages, if the employee believed that the copying was a fair use and had reasonable grounds for that belief. Adhering to the Guidelines in III and IV above should afford reasonable grounds for believing one is engaging in "fair use".
Appendix 1. GUIDELINES
The purpose of the following guidelines is to state the minimum standards of educational fair use under Section 107 of H.R. 2223. The parties agree that the conditions determining the extent of permissible copying for educational purposes may change in the future; that certain types of copying permitted under these guidelines may not be permissible in the future and conversely that in the future other types of copying not permitted under these guidelines may be permissible under revised guidelines.
Moreover, the following statement of guidelines is not intended to limit the types of copying permitted under the standards of fair use under judicial decision and which are stated in Section 107 of the Copyright Revision Bill. There may be instances in which copying which does not fall within the guidelines stated below may nonetheless be permitted under the criteria of fair use.
I. Single Copying for Teachers
A single copy may be made of any of the following by or for a teacher at his or her individual request for his or her scholarly research or use in teaching or preparation to teach a class:
A. A chapter from a book;
B. An article from a periodical or newspaper;
C. A short story, short essay or short poem, whether or not from a collective work;
D. A chart, graph, diagram, drawing, cartoon or picture from a book, periodical, or newspaper.
II. Multiple Copies for Classroom Use
Multiple copies (not to exceed in any event more than one copy per pupil in a course) may be made by or for the teacher giving the course for classroom use or discussion provided that:
A. The copying meets the tests of brevity and spontaneity as defined below; and,
B. Meets the cumulative effect test as defined below; and,
C. Each copy includes a notice of copyright.
(i) Poetry: (a) A complete poem if less than 250 words and if printed on not more than two pages or, (b) from a longer poem, an excerpt of not more than 250 words.
(ii) Prose: (a) Either a complete article, story or essay of less than 2,500 words, or (b) an excerpt from any prose work of not more than 1,000 words or 10% of the work, whichever is less, but in any event a minimum of 500 words.
(Each of the numerical limits stated in "i" and "ii" above may be expanded to permit the completion of an unfinished line of a poem or of an unfinished prose paragraph.)
(iii) Illustration: one chart, graph, diagram, drawing, cartoon or picture per book or per periodical issue.
(iv) "Special" works: certain words in poetry or in "poetic prose" which often combine language with illustrations and which are intended sometimes for children and at other times for a more general audience fall short of 2,500 words in their entirety. Paragraph "ii" above notwithstanding such "special works" may not be reproduced in their entirety, however, an excerpt comprising not more than two of the published pages of such special work and containing not more than 10% of the words found in the text thereof, may be reproduced.
(i)The copying is at the instance and inspiration of the individual teacher, and
(ii) The inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission.
(i) The copying of the material is for only one course in the school in which the copies are made.
(ii) Not more than one short poem, article, story, essay or two excerpts may be copied from the same author, nor more than three from the same collective work or periodical volume during one class term.
(iii) There shall not be more than nine instances of such multiple copying for one course during one class term.
(The limitations stated in "ii" and "iii" above shall not apply to current news periodicals and newspapers and current news sections of periodicals.)
III. Prohibitions as to I and II Above
Notwithstanding any of the above, the following shall be prohibited:
A. Copying shall not be used to create or to replace or substitute for anthologies, compilations or collective works. Such replacement or substitution may occur whether copies of various works or excerpts therefrom are accumulated or reproduced and used separately.
B. There shall be no copying of or from works intended to be "consumable" in the course of study or of teaching. These include workbooks, exercises, standardized tests and test booklets and answer sheets and like consumable material.
C. Copying shall not:
1. substitute for the purchase of books, publishers' reprints or periodicals;
2. be directed by higher authority;
3. be repeated with respect to the same item by the same teacher from term to term.
D. No charge shall be made to the student beyond the actual cost of the photocopying.
Appendix 2. OBTAINING PERMISSION FROM THE COPYRIGHT OWNER
University employees should obtain prior written permission from the copyright owner to copy materials in those situations when the proposed copying does not come within the doctrine of "fair use". Obtaining such permission is usually not difficult and, in most cases for classroom use, is granted with no royalty charge.
How to Obtain Permission
When a proposed use of photocopied material requires a faculty member to request permission, communication of complete and accurate information to the copyright owner will facilitate the request. The Association of American Publishers suggests that the following information be included to expedite the process:
1) Title, author and/or editor, and edition of materials to be duplicated; 2) Exact material to be used, giving amount, page numbers, chapters and, if possible, a photocopy of the material; 3) Number of copies to be made; 4) Use to be made of duplicated materials (including time period or duration if copying on an on-going basis is desired); 5) Form of distribution (classroom, newsletter, etc.); 6) Whether or not the material is to be sold; and 7) Type of reprint (ditto, photocopy, offset, typeset).
When the copyright owner is the publisher of the work, the request should be sent, together with a self-addressed return envelope, to the permissions department of the publisher in question. If the address of the publisher does not appear at the front of the material, it may be obtained from The Literary Marketplace (for books) or Ulrich's International Periodicals (for journals), both published by the R.R. Bowker Company. When the copyright owner is the author, the request should be directed to the author either in care of the publisher's permissions department, as set forth above, or at the author's address. For purposes of proof, and to define the scope of the permission, it is important that the permission be in writing. Many publishers have registered with the Copyright Clearance Center, 21 Congress Street, Salem, MA 01970. This organization can facilitate obtaining permission to copy. Check with your campus library about the use of this service.
The process of requesting permission directly from the publisher requires time, as the publisher must check the status and ownership of rights and related matters, and evaluate the request. It is advisable, therefore, to allow sufficient lead time. In some instances the publisher may assess a fee for permission, which may be passed on to students who receive copies of the photocopied material.
The following is a sample letter to a copyright owner (in this example a publisher) requesting permission to copy:
Date Material Permissions Department Academic Book Company 200 Park Avenue New York, New York 10016 Dear Sir/Madam: I would like permission to copy the following for use in my class (name of class) (next semester) or (next semester and subsequent semesters during which the course is offered.) Title: Ethics and the Law, Second Edition Copyright: Academic Book Co., 1965, 1971. Author: John Smith Material to be duplicated: Chapter 9 (photocopy enclosed). Number of Copies: 50 Distribution: The material will be distributed to students in my class and they will pay only the cost of the photocopying. Type of reprint: Photocopy Use: The chapter will be used as supplementary teaching materials. I have enclosed a self-addressed envelope for your convenience in replying to this request. Sincerely, Faculty Member
Appendix 3. IMPLEMENTATION
Because of the many individuals and offices affected by the University of California Policy and Guidelines on the Reproduction of Copyrighted Materials for Teaching and Research, it is important that this Policy be widely distributed and available for reference. To insure that result, the University takes the following measures to publicize the Policy and Guidelines:
I. They will be distributed to every faculty member.
II. The University of California Policy and Guidelines on the Reproduction of Copyrighted Materials for Teaching and Research will be included in the Handbook for Faculty Members of the University of California.
III. Notices shall be prominently posted that point out the existence and source of availability of the University of California Policy and Guidelines on the Reproduction of Copyrighted Materials for Teaching and Research at the location of all University copying facilities and other facilities at the University locations, if any, where orders for photocopying are received. (It is understood that the terms of the University of California Policy and Guidelines on the Reproduction of Copyrighted Materials for Teaching and Research also apply to photocopying at facilities outside of the University.)
IV. In the event that any order, requisition, or like form is used in connection with the making or ordering of copies through campus facilities, such form shall include a clear representation by the university employee that the requested photocopying is in conformity with the Policy Statement. When permission from the copyright owner has to be obtained, a copy of the permission agreement should be attached to the request form and retained by the copy facility.
V. This policy supersedes all individual campus policies concerning the photocopying of materials for classroom and research use. It does not affect campus policies on the photocopying of materials for library reserve use (which are based on a different section of the U.S. Copyright Law) nor policies on videotaping, showing films, nor the reproduction of computer programs.