Can I Make Copies of That? A Summary of Where Copyright Stands for Higher Education Institutions

ArentFox Schiff

Arent Fox

College and university staff and college store operators routinely grapple with how to enable students to use copyrighted material in the most economical and efficient way. Copyright protections have not made this easy, with sometimes complex considerations for different licenses and exceptions.

Questions abound in particular about “fair use” and “Creative Commons” rights—Can we just make a copy? What if it includes only a few pages? What if we charge for printing? What do the different types of Creative Commons licenses mean? This article provides a summary of where copyright considerations stand for colleges and universities.

A. Copyright applies to most written, educational materials.

Copyright law protects “original works of authorship,” including literary, dramatic, musical, and artistic works. A copyright exists from the moment a work is created, and protects certain activities, including: the right to reproduce the work, prepare derivative works, sell or transfer ownership in the work, perform or display the work publicly, or digitally transmit the work.

Copying excerpts from a novel to provide to students, including a portion of a book in a coursepack, copying an e-book, or distributing a PDF of an article all implicate copyright protections applicable to the original work. The default rule is that the work needs to be purchased or licensed, in the case of some articles, e-books, and other works. This can create a financial burden and be time-consuming — even sometimes unfruitful if the owner of the work either cannot be found or refuses to license the work.

There are three popular tools that can apply to avoid purchasing a work or a license. First, works that are in the “public domain” typically may be freely used; this includes works for which the copyright has expired because it has outlived the life of the creator plus seventy years. Second, the “fair use” exception to copyright often can apply in the educational setting. And, third, the Creative Commons licensing system is becoming a more common tool used by authors of academic works. This article covers the latter two of these options.

B. The fair use exception requires thorough evaluation of the purpose and scope of the copy or derivative work.

Fair use is an express exception to copyright law and is set forth in 17 U.S.C. § 107; fair use of a work does not infringe any copyright. Fair use exists as a matter of public policy, to encourage reporting, commentary, criticism, teaching (including copies for classroom use), scholarship, and research.

Under the Copyright Act, four factors determine whether a use of a work is a “fair use,” including: (1) the purpose of the use, (2) the nature of the use, (3) the amount of substantiality of the portion used, and (4) the effect of the use on the potential market. 17 U.S.C. § 107. The factors may or may not have equal weight, depending on the particular facts and circumstances—application of the factors is therefore fraught with confusion.

As a result of long-running litigation involving schools’ use of copyrighted material,[1] judicial decisions have provided some guidance for colleges and universities to implement the statutory factors to properly invoke the fair use exception. In general, the fair use factors are understood as follows:

Purpose of the use (Factor 1): Non-profit educational uses are typically favored as fair uses, as are criticisms, comments, news reports, teachings, scholarships, research, and uses that are transformative (i.e., add something new to the work).

Nature of the copyrighted work (Factor 2): Creative works (fiction, art, music, poetry, and feature films) tend to be more protected than non-fiction and, therefore, the creativity of the underlying work weighs against a finding of fair use.

Amount of substantiality of the portion (Factor 3): Generally, the more of the work used, the less likely the use is a fair use. Use of the entire work may be considered acceptable, though, if the entire work is needed to achieve the purpose of the use, such as a critical comment or parody.

Effect of use on potential market for or value of the use (Factor 4): If the use could have been purchased or easily licensed, that weighs against a finding of fair use. Certain types of uses may have varying market effects. For example, photocopies may have no adverse market effects, while reproductions of software, music, and videos may have larger market consequences.

Federal courts (specifically, in the Cambridge University Press line of cases in the 11th Circuit Court of Appeals) have explained that the four statutory factors should not be applied mechanically or weighed in isolation, but rather should be considered collectively in light of the purposes of copyright and the facts of each case. Regarding Factor 1, educational uses are more likely to be considered fair. For Factor 2, uses that communicate the bare facts needed to communicate the information, without evaluative, analytical, or subjectively descriptive material are generally more likely to be considered fair. With respect to Factor 3, no numeric benchmark (i.e., percentage of the entire work used) may be employed to determine whether a use is fair—a reasonable judgement is necessary as to the proportion of the work. Finally, Factor 4 may be afforded more weight where the work is used for the very purpose for which it was marketed and therefore the threat of market substitution is particularly severe, for example, where unlicensed excerpts from books are made electronically to students even though there exists an established system for licensing those excerpts for a fee.

Based on this and other guidance from courts, some colleges and universities have developed structured procedures to invoke fair use.

C. Creative Commons licenses offer a systematized, clear set of parameters to follow.

Creative Commons is a structured system of public licenses that also can be used to manage copyrighted material. A public license is a license granted by a copyright holder to all members of the general public that permits certain rights that would otherwise be barred by copyright law. There are several reasons why a creator would opt for a public license. For example, authors might seek to expand public access to educational materials, contribute to a global intellectual database, or encourage dissemination of their works to build a reputation and spread their ideas, all while maintaining in control of the copyright.

Depending on the type of license selected by the author, a Creative Commons license allows content to be copied, distributed, edited, remixed and/or built upon, even commercially, in certain instances.

Creative Commons is an attractive resource for educators because its materials are easy to access and search, and can be used with a clear understanding of the permitted uses and restrictions. All Creative Commons-licensed works may be used in any format or medium chosen by the user, meaning that digital works can be printed and shared and vice versa, as long as the user does not violate the other terms of the license.

There are six Creative Commons license types. All six require attribution, meaning that the original creator must be credited, and five impose one or more of the following additional restrictions: share-alike, non-derivative works, or non-commercial use:

  1. Attribution (a “CC BY” license): requires attribution only, meaning that users have no other restrictions.
  2. Share-Alike (a “CC BY-SA” license): allows those who use the material to license new creations only under the same terms. All new works will carry the same license, so any derivatives will also allow commercial use. For example, Wikipedia uses this license, enabling the public to edit, add, and remove content.
  3. No-Derivative use (a “CC BY-ND” license): prohibits the sharing of adapted (remixed, tweaked, or built upon) forms of a work. For example, Beehance, a community for designers and other creatives to be seen, enables creators to use this license, precluding modifications of existing designs.
  4. Non-Commercial use (a “CC BY-NC” license): precludes commercial uses of a work. This allows others to remix, tweak, and build upon the work non-commercially, and although their new works must also acknowledge the original creator, they don’t have to license their derivative works on the same terms. For example, the Brooklyn Museum in New York uses this license for its online image collection, preventing commercial uses of the images.
  5. A combination Share-Alike/Non-Commercial use (a “CC BY-NC-SA” license).
  6. A combination Non-Commercial/No-Derivative use (a “CC BY-NC-ND” license).

The creator selects which of the licenses it desires to use, and the information about the applicable license is then made readily apparent, usually in the “info” section about the work.

Before using a Creative Commons-licensed work, colleges and universities must first consider the intended use. For instance, if the desire is to build on or alter the work, then a non-derivative use license would not work. Similarly, if the objectives is to re-license a work under terms that are different from the original license, then a share-alike license would not work.

Before using a Creative CC BY-NC work, colleges and universities also should confirm whether their use is in fact non-commercial. The Creative Commons FAQ section defines “noncommercial” as “not primarily intended for or directed towards commercial advantage or monetary compensation.” Uncertainty has arisen in particular about whether paying for, or charging money for, the printing of CC BY-NC material violates the license. The Second Circuit resolved this issue last year in its decision in Great Minds v. Fedex Office and Print Servs., Inc., holding that there was no violation of a non-commercial license when a for-profit printer was paid to print material for a school district’s classroom (non-commercial) use. The appeals court held that, in that instance, the printer (FedEx) was acting as an agent of the licensee (the school district) to print the material for school use, and was not engaging in its own commercial use—the act of printing for a non-commercial user meant the license was not violated. That decision supports the proposition that licensees or their agents may obtain some profit from the printing, copying, or other reproduction of licensed material to further the underlying and primary non-commercial use.

D. Conclusion

Educational institutions should be mindful of these ways in which copyrighted materials can be used. Fair use and public licenses offer economical and virtually effortless options to create and manage creative works. And recent case law and clarifications of the Creative Commons licensing system facilitate more readily applied solutions for colleges and universities.

[1] See Cambridge Univ. Press v. Becker, 863 F. Supp. 2d 1190 (N.D. Ga. 2012), rev'd sub nom. Cambridge Univ. Press v. Patton, 769 F.3d 1232 (11th Cir. 2014); Cambridge Univ. Press v. Patton, 769 F.3d 1232 (11th Cir. 2014); and Cambridge Univ. Press v. Albert, 906 F.3d 1290 (11th Cir. 2018).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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