> Date: Tue, 4 Feb 2003 13:59:30 -0500
> From: Barbara Wall <BWALL@OUBOCES.ORG>
> Subject: copyright - book cover question
>
> Hello, all,
>
> I know I have read this, but searching the archives did not produce the
> answer Can a teacher make a photocopy of a legally owned book and put the
> copy on a bulletin board? I know I h ave seen it done, but we all know
> that does not make it legal. I am doing a sort copyright presentation in
> about an hour so if you can help!!!! Thanks so much, Barbara
>
I should probably preface my copyright comments by a statement that I am not an
attorney and am not providing legal advice.
Let's go through a series of questions:
Is the work protected by copyright? Yes.
What rights are implicated by this action? Reproduction and display
Is the use internal in a school (ie not posted on a public web site)? Yes.
Is the display in the context of face-to-face teaching activities in a classroom or
similar place devoted to education (addressing the display right under section
110)? I would argue that this is, but some may argue that a school library is s
more public place and the display is for a longer time than a single lesson. This
also raises another question of whether the copy has been
lawfully made.
§ 110. Limitations on exclusive rights: Exemption of certain performances and
displays
Notwithstanding the provisions of section 106, the following are not infringements
of copyright:
(1) performance or display of a work by instructors or pupils in the course of
face-to-face teaching activities of a nonprofit educational institution, in a
classroom or similar place devoted to instruction, unless, in the case of a motion
picture or other audiovisual work, the performance, or the display of individual
images, is given by means of a copy that was not lawfully made
under this title, and that the person responsible for the performance knew or had
reason to believe was not lawfully made;
Is this use fair use? Do the standard Fair Use of Educational Materials guidelines
expressly address this kind of copying (addressing the reproduction right under
107)? The guidelines do not specifically address this kind of copying, but
certainly the spirit of the guidelines is in accord with the proposed use. So let's
go through the fair use questions:
What is the purpose? Use is for educational purpose.
What is the nature of the work? Fictional works tend to have greater protection
than factual works. But here is the copying of the cover so this question may not
be relevant.
What is the amount and substantiality of the portion used in relation to thw work
as a whole? Not much at all and certainly not much of value in the context of a
whole book. However, it could be argued that if the cover has specifically
developed artistic elements that the cover itself should be considered a "whole."
What is the effect of the use upon the potential market for or value of the
copyrighted work? This use would likely actually benefit the potential market for
and value of the copyrighted work because it is promoting the book. It certainly
does not harm the value.
§ 107. Limitations on exclusive rights: Fair use38
Notwithstanding the provisions of sections 106 and 106A, the fair use of a
copyrighted work, including such use by reproduction in copies or phonorecords or
by any other means specified by that section, for purposes such as criticism,
comment, news reporting, teaching (including multiple copies for classroom use),
scholarship, or research, is not an infringement of copyright. In
determining whether the use made of a work in any particular case is a fair use the
factors to be considered shall include-
(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.
On balance this reproduction and display would appear to meet the fair use
standards. (But like I said, I am not giving legal advice.)
A "protection" of sorts would be a statement also posted on the board that states
something like "Materials posted on this board have been reproduced under fair use
standards. If there are questions or concerns, please contact ____." This would be
a good education for students and demonstrate good intent on the part of the
librarian to follow what are unclear standards. Also
document someplace the thinking process that has lead to a decision to post. This
also would demonstrate good intent.
I hope this helps.
Nancy
Nancy Willard, M.S., J.D.
Center for Advanced Technology in Education
University of Oregon, College of Education
E-mail: nwillard@oregon.uoregon.edu
URL: http://netizen.uoregon.edu
Responsible Netizen Institute
URL:http://responsiblenetizen.org
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