School Libraries and Copyright

"The distinction between 'fair use' and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.
The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: 'quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.'"
http://www.copyright.gov/fls/fl102.html

In my years as a high school librarian and educator, I have observed an increasing number of school-related situations in which copyright rules seem to be violated in the name of "fair use". "Fair use" is often interpreted as being "for any purpose related to school."
Although a College of DuPage teleconference on libraries and copyright issues, presented as part of an ongoing training program, stressed that copyright laws are generally less strict than perceived, in my experience, teachers and students rarely consider the issue of copyright or how it applies to print and video materials like articles, chapters, photographs, video programs, etc. As long as the material is being used for "educational purposes", many teachers seem to think copyright does not apply. Since teachers typically model behavior and share attitudes, student are either completely unaware, or disregard, issues related to copyright and copyright violation.
For example, if a book is difficult to obtain or no longer in print, teachers believe it is O.K. to copy the entire book-- even to make several copies of books or other print material for an entire class. "Fair use" includes limits on the amount of material that can be copied from a given source, and the length of time that the copy can be retained.

It is interesting that there is not an objective definition of what constitutes "fair"--
"The Copyright Office can neither determine if a certain use may be considered 'fair' nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney." (ibid.)

The ALCTS (Association for Library Collections and Technical Services-- a division of ALA)

and ALA's
"Copyright: Fair Use Legislation"
provide resources and links to legislative decisions in order to clarify copyright issues.
Carrie Russell has been the ALA copyright specialist in ALA’s Washington, D.C., Office for Information Technology Policy (OITP) since 1999. “The OITP promotes policies and programs that help ensure the public’s right to a free and open information society.” Carrie "is the author of 'Complete Copyright: An Everyday Guide For Librarians' and also pens a copyright advice column, 'Carrie On Copyright,' for School Library Journal, where she answers selected questions from readers. She’s also been teaching an online seminar for ACRL, 'Current Copyright Issues Facing Academic Libraries.'

In response to the following scenario:
"I would like to include several pages from a worktext in a study guide and appendix that I am working on with several teachers. The worktext is no longer in print. The original publisher was bought out and the new publisher does not carry the worktext. Am I allowed to copy four to five pages of this worktext to include in our appendix? It will be copied by teachers throughout the state to be used with students. The study guide will be free of charge to anyone who would like to download it from the Arkansas Department of Education's Web site."
Ms. Russell wrote:
"The worktext, although out-of-print and not available for sale, is probably still protected by copyright. Remember, the current term of copyright is life of the author plus 70 years. Corporate works are protected for 120 years from the date of first publication. If you reproduce pages from a copyrighted work and your use is not a 'fair use,' you are infringing the right of reproduction.

The problem here is that although what Cheryl wants to do would have no effect on the market for the work (Cheryl cannot purchase copies of the work), a worktext is by nature a 'consumable' work-that is, copies are meant to be purchased for each student who takes the class. The law is clear that consumable works may not be copied and handed out. Moreover, the pages would be posted on the Arkansas Department of Education's Web site. Since anyone could copy the pages, the posting of the work infringes on the copyright holder's right to distribute the work.

What in the world can Cheryl do? She has already tried to buy copies and they are unavailable. She can contact the current publisher and ask if he holds the copyright. If so, ask for permission to copy and post the necessary pages. Hopefully, the publisher will say, 'Sure, go ahead.' Get your agreement with the publisher in writing. Warning: the publisher might not hold the copyright! If so, ask who does and begin your hunt for the real copyright holder."
http://www.libraryjournal.com/article/CA83393.html

Clearly, dilemmas related to teachers' use of copies for school-related activities are common. Clear guidelines for using resources that are protected by copyright should be posted and followed by schools and school libraries.