Local Limits: Many schools have created their own copyright guidelines, but are they binding?

One of our history teachers purchased a book he’d like to share with his students. How much of the text is he allowed to copy? Also, if he copies a library book (as opposed to his own book), does that affect the amount of text he can reproduce?

Congress included a few examples of fair use in Section 107 of the copyright law, including the right to make “multiple copies for classroom use.” So as long as the book has been purchased legally, it’s fine to copy a portion of the work—no matter who owns the book. But the law says absolutely nothing about the amount of text that may be reproduced. That requires a fair-use analysis. Of course, copying a small amount of a book is more likely to be fair than copying a large amount.

Many schools have created their own copyright guidelines, which impose arbitrary limits on how much of a work may be copied. In effect, those schools are ignoring the fair-use provision and opting to use their own guidelines. Why? Schools typically do that to discourage folks from making unlimited copies of a resource and to ensure that each case is handled consistently. Since local guidelines eliminate the need to perform a fair-use analysis every time someone wants to copy a book, they’re definitely a time-saver. On the other hand, local guidelines aren’t legally binding. So if for some highly unlikely reason a school or teacher is sued for copyright infringement, the court will consider the case from a fair-use perspective.

Local copyright guidelines also tend to establish “ceilings” rather than “floors.” In other words, they focus on the maximum amount of material that may be copied rather than specifying the minimum amount of material that may be reproduced. When the Copyright Act of 1976 was being drafted, many stakeholders were concerned about the implications of fair use, which was then a completely new and unusual provision. Copyright holders worried that users would replicate too much of their works, and users worried that they might be sued for infringement if they accidentally did an incorrect fair-use analysis. In part because of these concerns, representatives from the publishing industry and writers’ guilds created the “Guidelines for Classroom Copying in Not-for-Profit Educational Institutions with Respect to Books and Periodicals.” These guidelines say, for example, that only 1,000 words or 10 percent of a book may be copied. Congress included these guidelines in the legislative history of the Copyright Act, but said that they didn’t replace fair use and should be used as guidelines to suggest minimum usage, not maximum.

Ultimately, your school needs to decide how it wants to address copyright concerns: by performing a fair-use analysis on a case-by-case basis or by establishing its own local guidelines.

We’d like to videotape our staff reading various children’s picture books and post the videos on our new Web site. From a copyright perspective, are online storytimes different than those offered in a library’s physical space?

Unfortunately, the copyright law doesn’t view digital and traditional storytimes the same way. When videos are posted on the Web, there’s always the possibility that anyone could listen to them. Rights holders would argue that by sharing their stories online, you hurt the potential market for their works—since online visitors can enjoy the stories for free rather than purchasing them. (By the way, there’s no evidence to suggest that happens.)

Let’s see how the remaining fair-use factors—the purpose of the use, the nature of the work, and the amount of the work that’s used—apply to digital storytimes. Since online storytelling is a public performance, it’s not restricted to nonprofit, educational uses. (Strike one.) Also, staffers are probably planning to read an entire book. (Strike two.) And finally, the nature of these particular works is very creative. (Strike three.) In my opinion, this kind of socially beneficial use without a profit motive should be lawful, but a strict reading of fair use says it’s not.