EOL 469: Legal Basis of Educational Practice

David M. Stone, University Laboratory High School, Urbana, IL USA

Week 4: Copyright Statute Hypothetical A

Hypothetical

Sally Smith teaches 9th grade honors and regular English at Cedar Creek High School in Cedar Creek, IL. She has been teaching there for 11 years. Each year she has approximately 23 honors students and 48 regular students. She has used the same text book each year and has always used the new editions when they come out. She also always provides excerpts from other texts for educational purposes in her classes. In her mailbox today she received a memo from the principal reminding teachers to adhere to the copyright laws when reproducing materials for class. Mrs. Smith is very familiar with the Fair Use Doctrine. She goes to the copy of the doctrine in the office to refresh her memory. She reads the line "fair use by reproduction in copies or photorecords or by other means" and decides that she has special status and can copy as much as she wants so long as its for educational use. She has always copied poetry, articles, and the like and proceeds to copy the same this year. As she flips through the poetry book she decides that she likes the entire book and wants to use it in class. It is too late to order the book to distribute to all her students since class will begin in four days. Since the book is to be used for her class, she makes 71 copies of chapters 1-3 of the book. On the first day of class she distributes chapters 1-3 to the students and explains that she will pass out chapters 4-6 later in the semester. Is this a violation? If not a violation after chapter 3-6, does it become a violation after copying and distributing chapters 4-6? What if only one chapter or one part of each chapter per lesson is photocopied for the class?

Analysis

Sally Smith is violating fair use in all situations involving the copying of chapters. According to § 107 (Limitations on exclusive rights: Fair use), " the fair use of a copyrighted work, including such use by reproduction in copies... for purposes such as ... teaching (including multiple copies for classroom use).. is not an infringement of copyright under specific circumstances." She failed to read beyond the first sentence and interpreted the "specific circumstances" to her advantage.

Fair use presupposes good faith and fair dealing. Sally Smith's actions indicate neither of those presuppositions. Preparing coursepacks by copying extensively from copyrighted materials, the actions Sally Smith is taking, is willful infringement and subject to fines. According to Section IV.E.33, an individual negates fair use if widespread practice of the individuals actions would adversely affect potential market for the copyrighted work. In fact, the statute states that "the effect of use upon potential market for or value of copyrighted work is the single most important element of fair use." In this case we know that she is interested in copying the book for each of her students and has no intention of purchasing the books.

According to Section 12 (Teaching, Scholarship and Research) the quotation of brief passages from subject's published works, without affecting market for subject's published works, is fair use. Sally Smith 's interest is in using single chapters or parts of chapters from the same book on a daily basis. Again, she is acting in a manner which would reduce the potential market of the book and is violating fair use.

Created 9/24/99. Last modified 9/24/99.