From the Noteworthy column in the April 1990 Perspectives

Copyright II: Research and Educational Photocopying

Michael Les Benedict, April 1990

Despite its obvious connection to teaching and scholarship, American academicians have remained blissfully ignorant of our copyright law. Most know little more than the fact that authors have some right to control the publication of their work, generally transferred to their publishers. As a result we have for a long time made use of copyrighted materials in teaching and research without much understanding of what is permitted and what is not, and with little sense that there may be legal repercussions for what we do. However, cumulative technological changes have made publishers more and more alarmed about what they perceive to be abuses by scholars and others; they are slowly beginning to attack practices which educators take for granted and which have been deeply imbedded in funding and other decisions in higher education. Educators should expect an increasing number of challenges in the future, designed to define and police educational use of copyrighted material in ways that may seriously disrupt current practice.

The copyright clause (Article I, section 8) of the United States Constitution authorizes Congress "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." The wording clearly indicates that the framers believed that the promise of financial reward would encourage artistic, scholarly, and scientific activity, but at the same time it suggests that the framers' primary concern was to promote the discovery and dissemination of knowledge rather than to protect the property rights of authors and inventors.

Congress passed the first copyright statute in 1790. It has revised the copyright system four times, most recently in 1976. Under the present law, works copyrighted before 1978 are entitled to protection for twenty-eight years following the initial copyright date, with a renewal possible for another forty-seven years. Works created after 1978 are protected until fifty years after the death of the creator, while unpublished works, which had never before been covered by statute, are protected until fifty years after the death of the creator or 2003, which ever comes later. Upon the expiration of copyright, works enter the public domain and can be freely used by anyone.

Copyright is an exclusive right to control the distribution of a creation for a period defined by statute and subject to statutory limitations and requirements. The copyright is limited to the literary or artistic expression in a work, and some other matters like organization, and not to facts or ideas or interpretations. The purchaser of a work acquires only the right to the physical copy, not the right to reproduce or republish even a part of it. With the exception of copyrights in unpublished work, authors generally transfer the copyright to publishers in exchange for payments and royalties. (The custom varies for creators in other media.)

If strictly construed, the exclusive rights secured by copyright statutes would mean that there are hardly any ways in which one can distribute copyrighted material without the permission of the copyright holder. But the courts carved out an important exception to the rule. Since the primary purpose of copyright was to promote knowledge, scholars, critics, and others could make limited, "fair use" of a work for purposes of education, criticism, research, news reporting, and other socially useful purposes. Whether a particular use was fair depended on a variety of factors, several of which were codified in the law of 1976: the purpose of the use, the nature of the copyrighted work, the proportion and substantiality of the copyrighted work used, and the effect on the potential market of the original.

Fair use traditionally referred to the use of an author's works by a second author. The courts did not consider it an infringement of copyright to lend a book or to copy from one's personal volume. These were personal uses, exempt from copyright restrictions. But the development of lending libraries and photoduplication complicated matters. Lending and copying now went beyond personal use, but it did not seem appropriate to bar such practices entirely, and analysts began to assess them in terms of fair use. Legal analysts ceased to distinguish between "personal use" and "fair use." Despite recent efforts to revive the distinction, most personal uses are now considered to be a variety of fair use and must be justified according to the same criteria as other fair uses.

Publishers do not seem to have challenged the establishment and practices of lending libraries during the nineteenth and early twentieth centuries. But by the 1930s primitive forms of photoreproduction had been invented, and the desire of libraries to use the new technology to serve researchers raised publishers' concerns and legal problems. In 1933 the Library of Congress and the Registrar of Copyrights opined that a library would infringe copyright if it made photocopies of a work for its patrons.

To deal with the problem the Social Science Research Council and the American Council of Learned Societies created a joint committee that in 1935 negotiated a "Gentleman's Agreement" with the National Association of Booksellers. The agreement specified that libraries could make a single photocopy of a part of a book or periodical for a scholar, if the library earned no profit from the transaction and if the scholar stated in writing that the copy was for personal use and that he or she accepted responsibility for any infringement.

However, the agreement could not contain the changes inaugurated by the technological revolution in reprography. Entrepeneurs established businesses to photocopy materials for customers; photocopying equipment spread to businesses and organizations that freely made multiple copies of copyrighted materials for internal use; libraries more and more frequently supplied each other with photocopies of material requested through interlibrary loan; research institutions began to circulate photocopies of material to any researcher requesting them. College and university teachers had their libraries make photocopies of portions of books and articles and place them on reserve for students' use. By the 1970s many teachers customarily reproduced extracts from various copyrighted sources in "readers" that students were required to purchase, often from profit-making copy centers.

Librarians, educators, and researchers who were aware of the legal problem such activities posed justified them as boons to teaching and scholarship, and thus fair use. Librarians issued formal guidelines reflecting this conviction and endorsing wide-ranging use of reprographic technology. In an age that devalued property rights, it was natural to give priority to standards that promoted learning and research. But publishers and many authors were dismayed at developments. For the first time people were claiming a right not to make fair use of copyrighted material in a second work, but to use the original work itself. Moreover, they complained, librarians, educators, and others were making the purpose of the use the sole criterion of whether it was fair, ignoring the other criteria.

Publishers and authors were convinced that their rights were being infringed on a massive scale. There had been a tremendous expansion in education and scholarship since the 1950s, and they wished to cash in as providers of services to the education industry. Moreover, present practice was squeezing many of the specialized providers even as education and research were booming. Small scientific and scholarly journals saw their subscription lists stagnate or shrink as potential subscribers relied on libraries, which freely made photocopies for researchers and students from their single subscriptions. Worse, research centers such as the National Library of Medicine created massive distribution systems, mailing photocopies of scientific articles around the nation; librarians discussed the creation of central research libraries, which would centralize holdings, photocopying and lending materials to member institutions. As costs increased faster than subscription lists, the smaller journals raised their prices, which only encouraged libraries to cut back subscriptions and turn with even more interest to proposals to reduce and centralize holdings. Small presses specializing in scholarly and scientific publishing faced the same problem.

In the 1950s and 1960s recording companies, film studios, television producers, facing similar problems due to the development of reproductive technology, joined publishers and authors in efforts to persuade Congress to revise the copyright law. Extremists argued that any copying of a work without the copyright owner's permission infringed upon the owner's rights. Mechanical reproduction of a work amounted to publication, and libraries and others engaged in it were usurping the place of publishers in contravention of the law. Deeply committed to the protection of property rights, they insisted that no matter how valuable new technology might be to libraries and educators, those benefits could not come at the expense of what authors and publishers had a right to secure. "[T]he author and publisher are entitled to decide in what circumstance they can afford to authorize such duplication—and to be paid for [it]...," they insisted (Irwin Karp, "Interests of Authors and Users," in Reprography and Copyright Law, 1964). Others urged the creation of a compulsory licensing system, whereby authors and publishers would receive fees for the copies made. In essence, authors and publishers demanded a share of the savings attending the development of reprographic technology. Of course, this would reduce the benefit to the rest of society, but this was an appropriate incident of an economic system that recognized property rights. "[U]nder a system of private property, there is bound to be some inefficiency," authors and publishers observed. They did not doubt that "those who did not create and do not own particular property can find more effective means of using it than the owner himself. But we live under a political-economic system based on the concept that . . . things run best by allowing the creator of property to control its use." For decades, Congress was unable to reconcile the opposing positions. The private interests—publishers, authors, film and record producers, educators, librarians, manufacturers of duplicating equipment, and others—fought each other to a standstill. It was unclear where the public interest lay, whether it would be better served by strictly protecting copyright or by a generous interpretation of fair use.

Publishers' efforts to protect their interests in court tended to fail as well. Since the New Deal, the courts had become ever less inclined to protect property rights. Consequently judges began to stress that the primary purpose of copyright was to promote the dissemination of knowledge, not to protect the economic interests of authors and publishers. Strict enforcement of copyrights would inhibit the dissemination of knowledge, they concluded; broad rights of fair use promoted it. As society become ever more rights-conscious, many legal analysts also discerned a conflict between copyright and the First Amendment, which guaranteed freedom of the press. More and more, copyright seemed to be regarded as a necessary evil to be mitigated by a generous interpretation of what constituted fair use.

This trend culminated in the case of Williams & Wilkins Co. v. United States, decided in the Court of Claims in 1973. Williams & Wilkins, which published a number of small-circulation medical journals, sued the National Institute of Health and the National Library of Medicine, both federal agencies, for making photocopies for their own personnel and especially for systematically providing photocopies through interlibrary loan to any library requesting them. Major publishers' and authors' associations; educational associations; professional, scholarly, and library associations; and medical schools weighed in on either side. The decision of the claims commissioner favored the publishers, bringing into question photocopying practices throughout the nation and significantly strengthening the bargaining position of publishers and authors. But the full Court of Claims reversed the commissioner in a four to three decision. The Court was unwilling to inflict the damage on medical science attendant on upholding the commissioner; that required a legislative, not a judicial decision. But by preserving the status quo, the court also ratified the dramatic changes photoduplication had wrought. As the dissenters pointed out, the court had sanctioned "wholesale, machine copying, and distribution of copyrighted material ... on a scale so vast that it dwarfs the output of many small publishing companies."

The publishers appealed to the Supreme Court for the final showdown, but to their dismay, the justices divided equally and issued no opinion, thus allowing the Court of Claims' decision to stand but not settling the issue. At last the sobered combatants were willing to work with Congress to fashion a compromise.

The result was embodied in sections 107 and 108 of the Copyright Revision Act of 1976. Section 108 mostly reflected the views of librarians, allowing them to make individual photocopies of parts of books or periodical volumes, as long as they were for personal research use. But publishers succeeded in securing a provision reversing the most damaging element of Williams & Wilkins. It barred the systematic reproduction of material in such aggregate quantities that they substituted for subscriptions or purchase.

Section 107 for the first time codified the doctrine of fair use "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research...," if the traditional criteria were met. In an effort to settle the bitter dispute over classroom photocopying, publishers' and authors' representatives met with an ad hoc committee of educational institutions and organizations and hammered out an "Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions." The agreement set out "the minimum and not the maximum standards of educational fair use under Section 107" (House Report No. 1476, 1976). The agreement strictly limited the circumstances under which teachers might provide photocopied material to their students. The excerpts had to be brief and decided upon by the individual teacher spontaneously, without time to secure permission from the copyright owner. Nor could the copying be repeated from term to term. In general, the agreement precluded the sort of classroom photocopying that had become customary on college campuses. The AAUP and the Association of American Law Schools protested that the viewpoint of higher education had not been adequately represented on the ad hoc committee. But although it carefully noted that the Guidelines constituted only the minimum scope of fair use, Congress included the agreement in the formal report accompanying the new law.

The conservative environment of the past decade has encouraged publishers to hope that the trend of the law might be reversed and the scope of fair use narrowed. There has been a noticeable shift in the tone of law-review analysis. While many analysts still defend broad definitions of fair use, many more conservative commentaries are appearing than hitherto. Like conservatives in general, conservative legal analysts believe that society benefits most when entrepreneurs are free to enjoy the profits of their enterprise. The framers enshrined that principle in the Constitution's copyright clause, they insist. Thus copyright itself is the mechanism the framers chose to promote the dissemination of knowledge and the arts; there is no need to augment it with broad provisions for fair use. On the contrary, they argue, fair use reduces the incentive to create by depriving creators of benefits. The clear implication is that the doctrine of fair use is inconsistent with the copyright scheme envisioned by the Constitution and therefore should be narrowly construed.

This perception is reinforced by the growing influence of the "law-and-economics" school of legal analysis, whose practitioners seek precision by analyzing the costs and benefits of all legal rules in economic terms. From this perspective, any social policy that interferes with free-market property rights redistributes wealth from one part of the community to another. As analyst David J. Hayes, in his article "Classroom 'Fair Use': A Reevaluation," in Bulletin of the Copyright Society of the U.S.A., December 1978, explains, no matter how worthy the goal, "the costs of education should not be borne by copyright owners." There are indications that the courts are becoming receptive to the conservative view. Four of the nine justices of the Supreme Court, perceiving fair use to be "a form of subsidy ... at the first author's expense ... for the public good," favored requiring some form of payment to film studios, and perhaps even an injunction against the sale of videotape recorders, when viewers copied movies in order to watch them at a more convenient time (Sony Corp. of America v. Universal City Studios, 1984). The Harper & Row v. Nation case and recent decisions of the Second Circuit Court of Appeals suggest a similar sensibility.

Charging that libraries are not abiding by the provisions of Section 108 of the new copyright law, authors' and publishers' representatives have been pressing Congress to narrow its exemptions or establish a system of compulsory licensing. Anticipating any changes, publishers have established the Copyright Clearance Center (CCC) in an effort to persuade users to pay royalties or obtain licenses for uses that publishers argue go beyond fair use or 108 exemptions. However, few educational institutions or libraries have been willing to deal with the CCC, insisting that their photocopy practices conform to the fair-use and library-photocopying provisions of the law. So far unable to restrain library photocopying for researchers, the CCC is preparing a major drive to secure university participation in the area of classroom photocopying.

To discourage resistance, publishers are working to establish their narrow view of fair-use photocopying in law. Despite Congress' declaration that the Guidelines for Classroom Copying constituted only a minimum standard of fair use, publishers have insisted that its restrictive provisions establish binding limitations. Several analyses have since treated the Guidelines as authoritative, as has at least one court case and the standard legal treatise Nimmer on Copyright, 1984.

Since 1980 publishers have brought a series of cases against copy centers, universities, and university professors. The purpose of each seems to have been to persuade the defendants to make out-of-court settlements recognizing the Guidelines as setting binding limits to classroom copying. Tempted by the publishers' willingness to forego damages, in every case the defendants agreed rather than bear the costs of litigation. In the most important settlement, New York University agreed to embody the Guidelines in formal regulations governing photocopying for its classes. The American Association of Publishers (AAP) promptly circulated the NYU policy to university administrators, urging the adoption of similar rules and warning that the AAP would be "actively pursuing...copyright compliance by the university community as a whole." At present the publishers are pressing a case against Kinko's Graphic Corp., designed to force a similar outcome. It is possible that publishers will be able to force their views upon the academic community by intimidating the copy centers. In the past year the AAP and the National Association of College Bookstores have also mailed a pamphlet to thousands of college teachers, Questions and Answers on Copyright for the Campus Community, 1989. The answers draw attention to the Guidelines and offer other advice based on the publishers' conservative interpretations of fair use.

Although librarians remain strongly opposed to the publishers' offensive and professors can be expected to resist, the publishers hope that university administrations and their legal counsel will be more amenable to persuasion. Some universities, anxious to avoid lawsuits, have issued guidelines embodying the publishers' views. Others are watching the course of events. The publishers' ultimate goal is probably to force universities to enter licensing agreements with the CCC. The CCC has recently spun off the Association for Copyright Enforcement to bring copyright litigation on a broad scale. It is presently engaged in an immense infringement action against Texaco Corporation. Should it win, it will almost certainly turn its attention to the education community.

Until the photocopying issue is settled, teachers cannot be certain of how to proceed to make photocopied material available to their students. The safest course is to ask permission of publishers when working up a body of readings in advance of a course, accepting the substantial inconvenience. Many will grant limited permissions for free. About half will ask for small payments which can be added to the cost of a reader. Although publishers and many copyright lawyers might disagree, a refusal of permission or an unreasonable demand for payment may very well justify a teacher to make use of the material, since availability at a fair price is a key element of fair use. The same is true of a publisher's failure to respond, although again many lawyers would disagree.

However, it is by no means incumbent upon teachers to follow the restrictive Guidelines. If unwilling to seek permissions, teachers should avoid using excerpts from materials intended for students, such as textbooks or anthologies of supplementary readings. Excerpts from other materials should be brief. They should be directly related to an educational purpose; they should not merely be entertaining. One can be freer with excerpts from materials that are out of print than in print. The same is true of material available only in expensive, hardcover editions rather than cheap paperbacks. Remember that material published before 1962 very well may be in the public domain; one can check with the Copyright Office of the Library of Congress. Government documents are not subject to copyright at all. But even if the originals are in the public domain, do not photocopy abridgements of material from anthologies; the effort that went into the abridgement may be protected, as will be any introductory material. Finally, do not charge students anything beyond the cost of photocopying itself; if possible, use a non-profit copying center rather than a profit-making one.

Even if the publishers' view of classroom photocopying is ultimately accepted, educators are not subject to statutory damages, which can be substantial, as long as they had reason to believe they were making fair use of the copyrighted material. Teachers should consult copyright handbooks in their libraries and follow the more liberal of them in good faith. This will insulate them from damages until the classroom fair use question is settled.

—Michael Les Benedict is a professor of history in the Department of History at The Ohio State University. Professor Benedict is parliamentarian for the AHA and has published extensively on American constitutional and political history.

Editor's Note: The AHA is grateful to Professor Benedict for giving our members the benefit of his knowledge and experience. Neither he nor we, however, can vouch for his advice as being absolutely defensible in the Courts. Dickens' Mr. Bumble may be the ultimate authority on matters legal. The citations within these two articles were simplified to conform with Perspectives editorial guidelines. A copy of the original citations may be obtained by sending a self-addressed, stamped envelope to M. Les Benedict, Department of History, Ohio State University, 106 Dulles Hall, 230 West 17th Ave., Columbus, OH 43210-1367.