portal: Libraries and the Academy 1.1 (2001) 47-57
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When is a Use a Fair Use? University Liability for Educational Copying
Samuel E. Trosow
Ideally, advances in information technology could be used to improve access to information resources and promote the discovery of new knowledge, to improve educational opportunities, or simply to enhance the free flow of information essential to an informed citizenry. But in the new economy, these salutary outcomes are often forced to take a back seat to the proprietary interests of an steadily shrinking handful of multinational corporations whose overriding interest, unfortunately for public policy, is the extraction of profit from information resources.
A striking example concerns the distribution of educational reading materials in the higher education environment. Recently, many professors have found that either the nature of their specific course or the changing nature of the field makes it difficult to assign readings based solely on traditional textbook purchases. As a result, the use of course-specific anthologies or readers has become popular, and with advances in photocopying technology, has become increasingly feasible. At the same time, the owners of the content of educational materials--the copyright holders--are becoming increasingly concerned that this practice threatens their revenue streams. They take the position that the reproduction of portions of their copyrighted works into readers or coursepacks constitutes an infringement of their copyrights, specifically their exclusive rights to make copies of their works. 1
While there is no precise way of measuring the number of disputes that have arisen between publishers and educational institutions or copy shops under these circumstances, two such cases have made their way into the published decisions of the United States federal courts. Basic Books, Inc. v. Kinko's Graphics Corp., and Princeton University Press v. Michigan Document Services, Inc. have important similarities, most significantly that both infringing defendants were private, for-profit, commercial entities. 2 But it is important to note that these cases have had substantial effects on the copying practices of noncommercial activities such as university copy centers, and even [End Page 47] individual libraries. The purpose of this article is to consider a hypothetical infringement action against such noncommercial copiers, and suggest some measures an educational institution might adopt in order to protect its interest in encouraging the broadest possible dissemination of information resources.
An Infringement Action Against a Noncommercial Entity
Both the Kinko's and Michigan Document Services cases involved commercial, for-profit copiers. There has been no published decision with a similar situation where the alleged infringer is a noncommercial entity such as a university affiliated copy center, a library, or the professors or students themselves. For purposes of applying existing authority, the fact situation from the Princeton University Press v. Michigan Document Services, Inc. case will be adapted with the following changes:
- The copy center is owned and operated by the university and is a bona fide educational/non-profit entity. Copies of the coursepack are sold in the student union bookstore for the cost of reproduction, including copying and binding. No additional fees are added.
- A master copy of the coursepack is available at the reserve desk of the university library for individual copying by students who do not wish to purchase the entire reader. Many students utilize this option.
- The university has been named as the defendant in a suit that alleges infringement on the part of university copy shop, the library, the professors assigning the works and the students making copies in the library. 3
- The university admits to the copying, but asserts the defense of fair use under Section 107 of the Copyright Act.
The relevant statutory authorities governing our hypothetical case consist of the Copyright Clause of the U.S. Constitution, and Sections 106 and 107 of the Copyright Act. 4 Section 106 gives the owner of a copyright the right to prevent others from making copies without permission. Section 107 limits this exclusive right for certain purposes considered fair use, including teaching, scholarship, and research. Four factors are used to determine...