This memo will outline the policies and procedures for the Law School to ensure compliance with applicable copyright laws and will provide some guidelines for their application.
- Importance of Copyright Compliance
- Procedures for Photocopying for Coursepacks and Handouts
- Some Brief Guidelines: Materials That May be Copied for Classroom Use Without Permission
- Getting Permission
- Library Reserves
- Course Web Pages
A "law in action" analysis would point out that copyright law is largely self-enforced (therefore largely not-enforced), and that the chances of getting sued for a copyright violation are, perhaps, not very great. Nevertheless, we believe that there are philosophical (beyond "it's the law") and practical reasons that it is important for the Law School to be in obvious good faith compliance with the copyright laws, even though compliance, from time to time, undoubtedly will be inconvenient.
Federal copyright law seeks to balance the interests of owners/authors and the interests of users of copyrighted material. One important balancing device is the statutory right of "fair use" (described below), which grants a privilege to copy material under limited circumstances notwithstanding that the material is subject to copyright. It must be noted that the fair use doctrine is constantly challenged by copyright owners for not providing sufficient protection to their interests. The University's copyright policies are premised on the fair use doctrine, and its policies are more liberal than many comparable institutions. In formulating those policies, the University has taken a strong public stand emphasizing the importance of fair use to higher education. We believe the University's aggressive stand is the correct one for an academic institution to take, and that we have an interest in complying with those policies so as to ensure the perpetuation of viable fair use rights.
On a more practical level, since the early 1990s, when the Southern District of New York (and then later the Sixth Circuit) granted large awards of damages against copyshops for producing coursepacks that included book excerpts without permission from the copyright holders, book and journal publishers have become increasingly aggressive in their pursuit of copyright violations. The advent of easily copied and transmitted electronic media has increased the diligence of the information industry in protecting its interests. Since we suspect that the University may well be on the radar screen of content providers and since our policies are already more generous than many other academic institutions, it is important that we have defensible, good faith copyright compliance policies in place and that we not be seen as condoning copyright infringement.
As a general proposition, copyrighted materials cannot be reproduced without permission unless (a) the materials are in the public domain; or (b) the use is fair use; or (c) blanket permission to use the materials has been granted. Much of what is copied for Law School instructional purposes will fall easily within these exceptions, and we do not anticipate that the implementation of the copyright compliance policies and procedures described below will, in fact, require much change in behavior.
As in the past, the copyshop can produce coursepacks and handouts for Law School instructors. However, instructors are responsible for ensuring that copying of materials for coursepacks and class handouts does not violate applicable copyright laws. Below, we provide guidelines that should address the vast majority of materials that Law School instructors might distribute to students. We would also be happy to provide you with a copy of the more comprehensive guidelines generated by the University. Instructors who have specific questions about whether they need to seek permission to copy materials should contact Steve Barkan, Anuj Desai, or John Kidwell. In addition, for those circumstances in which the instructor must obtain permission, we have provided a sample e-mail that the instructor can use to do so.
Although we understand that copyright compliance can be a time-consuming nuisance, there is no available alternative. We also understand that it would be beneficial to have a "compliance specialist" available to do the work of reviewing materials and getting permissions, when necessary. In the aggregate, this work might be significant since 70 to 80 per cent of our instructors regularly photocopy materials for classroom use. Unfortunately, we have no staff to assign to this work, and consequently, the burden must fall on the instructors who want to copy materials. You might, of course, decide to use a PA to help with this task.
In the event that permission must be obtained, the instructor should retain a copy of that permission. If the copyshop staff believes that they cannot legally copy certain materials without permission, they might ask the instructor for proof that permission has been obtained, for copyshop records. If the copyshop staff is unsure as to whether they can copy particular materials, they will turn to Steve Barkan, who will either approve the copying on his own or will in turn confer with the other members Faculty Ad Hoc Copyright Compliance Committee. The copyshop staff is not required to copy materials that they reasonably believe may not be copied unless and until Steve Barkan or the Committee have given their approval.
If the copying does require permission, the time needed to photocopy materials could be increased significantly, so it is important to attend to getting needed permissions well ahead of time.
It is not possible to give a comprehensive guide as to when you may include materials in a coursepack or handout without permission, as the issue is (like many areas of law) complex and dependent upon a number of factors that are dictated by context. Nonetheless, here are a few examples of materials that you may include in your coursepack or hand out in class without permission. As noted above, the general rule is that you can use materials which are in the public domain, materials for which some kind of blanket educational-use privilege has been granted by the owner, or materials falling within the fair use privilege. Remember, just because something is out of print does not mean it is in the public domain.
A. U.S. Government works, because they are in the public domain by explicit command of the copyright statute. This includes caselaw (without West headnotes), statutes, administrative regulations, Congressional reports and the like.
B. State caselaw and statutes and local government ordinances, which are in the public domain as a matter of public policy, confirmed by judicial decisions. Although theoretically, state government materials are copyrightable, most state materials that a law professor would use, such as caselaw (again, without headnotes), statutes, administrative regulations and the like, can be copied freely for coursepack purposes.
C. Works published before 1923, because they are in the public domain. The United States copyright for works published before 1923 has expired, and these works may thus be freely copied.
D. Articles or other materials covered by blanket permissions (including many law journals), which can be copied because permission has been given. Some law reviews, including our own Wisconsin Law Review, have a license that grants permission to copy any of their copyrighted works for academic purposes, so long as the person seeking permission satisfies certain conditions. This license can often be found on the "copyright page" of the work and/or on the publisher's website.
E. Excerpts from copyrighted materials (including books, journal articles, etc.), because the copying of the materials would be "fair use." Section 107 of the copyright law states that fair use should be determined by considering four factors:
1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit 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 of the use upon the potential market for or value of the copyrighted work.
Obviously, clear guidelines are difficult to create, and fair use must be determined on a case by case basis. Selected charts, graphs, and illustrations probably can be duplicated without seeking permission. A one-semester use of a single article from a journal or periodical probably would be fair use, but permission would be required to use that article for more than one semester.
It should be noted, however, that copyright lawyers differ greatly on how much of a work can be copied within the limits of fair use. Some argue that the limit should be 1000 words or 10% of a work, whichever is less. For example, the Sixth Circuit has held that including 17 pages (approximately 8000 words) from a 321-page history book in a coursepack required the publisher's permission.
Materials submitted for copying under fair use should include the name of the author(s); the titles of the work and the larger work from which it is taken; the pages copied; the fact that the work is copyrighted and the name of the copyright owner; the publisher; and the year of publication.
If you decide to photocopy materials that require you to obtain permission, the first thing you need to do is determine who the copyright owner is. Most published books will have a copyright notice on page (ii) or thereabouts. Some articles will have a copyright notice in the starred footnote (or equivalent). If there is no copyright notice on an article, you should presume that the author (not the publisher) is the copyright holder. Ordinarily, this means that you will need to get permission from the author, not the publisher, although the publisher may have the right to grant permissions. If, for example, you want to include excerpts from materials written by a colleague at another school, a simple e-mail to her or him will ordinarily suffice. If you cannot easily locate the author, you can contact the publisher (e.g., the law review).
Many publishers (including most law reviews) include on their websites a procedure for requesting permission for copying those works for which they own the copyright. Some use the Copyright Clearance Center, found online at http://www.copyright.com, which is a central clearinghouse for copyright permissions. (But you should realize that the CCC has an interest in collecting money, and in not characterizing uses as "fair." As a result, before you go to the CCC, please check with Barkan, Kidwell or Desai.) For others, you need to contact the publisher directly. Whatever system they use, however, the vast majority of reputable publishers now permit requests to be done online, via e-mail, or directly on a website. Again, some law reviews have a license that grants permission to copy any of their copyrighted works for academic purposes, as long as the person seeking permission satisfies certain conditions. Check the "copyright page" of the work and/or on the publisher's website.
Please note that some publishers will charge a royalty for granting permission, while others will not. If the publisher requires the payment of a royalty as a condition to granting permission, the cost of the royalty will be incorporated into the price of the materials charged to students. Since some materials may have effective substitutes, you may of course factor in a publisher's desire for a royalty into your decision as to which materials to use.
When requesting permission, an e-mail or letter to the copyright holder similar to the following should suffice:
To the Permissions Department:
I would like permission to copy the following for use in a coursepack for use in my class in this and future semesters:
Author: John Kidwell
Title: Ruminations on Teaching the Statute of Frauds
Material to be duplicated: Entire article
Number of copies: Approximately 100
Distribution: The material will be distributed to students in my classes, and they will pay only the cost of the photocopying
Type of reprint: Photocopy
Use: As supplementary teaching material
The Law Library makes course readings available to students through both a paper reserve system and an electronic reserve system (e-reserves). Placing copies of materials on reserve in the library generally is considered to be fair use, so long as the number of copies is limited and the proportionality standard is met. The e-reserves system, into which copies of documents are scanned, also provides an alternative method for distributing course readings to students. Because the e-reserve system posts one copy of a document, considers fair use factors, and limits access to students actually enrolled in a class, access through the system also is generally considered to be fair use under the University's copyright policies.
Postings to course Web pages also must comply with the copyright law. We would urge you to review the guidelines described in this memo before posting materials to your course Web page.
If you have questions about any of this, please contact any of us on the Ad Hoc Copyright Compliance Committee (Steve Barkan, Anuj Desai, John Kidwell and Eric Giefer).