About Chemical Innovation - Subscription Information
March 2001
Vol. 31, No. 3, pp 46–47.
Legal Insights

Table of Contents

Eric S. Slater

Guidelines and advice in navigating fair use

The concept of fair use is gray—slippery at best. It is likely one of the most misunderstood and misapplied aspects of copyright law, and it can get you into a world of trouble if your use is not deemed “fair”. The ACS Copyright Office receives many questions about fair use, and this is a good opportunity to discuss the basics.

Fair use has been defined as the privilege of using copyrighted material in a reasonable manner without having to secure the copyright owner’s consent (1). This begs the question, “What is a reasonable amount?” This can vary among copyright owners and is viewed on a case-by-case basis. Generally, no rule of thumb exists; however, 200 words or 10%, which ever is less, might be considered fair use (2). Bear in mind that this is not written in stone, because other factors must be considered.

Section 107 of the U.S. Copyright Act of 1976 (3) lists four factors that must be addressed for a court to determine that a party’s use of a work falls within the fair use definition:

  • the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  • the nature of the copyrighted work;
  • the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  • the effect of the use upon the potential market for or value of the copyrighted work.

The statute does not define fair use in any concrete fashion, thus leaving it open to interpretation. I won’t discuss how the four factors above are defined, because it varies from case to case and even from court to court. The University of Texas’s Web site provides some guidance as to how to interpret each factor on the basis of what is being written and how material is being used (4). The information presented is highly detailed and can be applied to copyright in a general sense.

The U.S. Copyright Office is another excellent source for similar information, specifically Circular 1 on Copyright Basics (5). The Consortium for Educational Technology in University Systems, consisting of the State University of New York, the California State University System, and the City University of New York maintains a helpful Web site for higher education purposes (6). Authors can get into trouble by trying to ascertain for themselves whether their use of a work falls within the definition. Consultation with an attorney is recommended, but it can be expensive.

The gray area
Section 107 lists some examples of uses that might be deemed fair use, including “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” (1).

That language is where the “gray area” rears its ugly head. The statute’s definition of fair use is general and difficult to interpret. In the chemistry field, any of the examples in Section 107 can potentially be invoked when attempting to claim fair use. The ACS’s Learning Module: What Chemists Need To Know about Copyright states that only the courts can determine whether a particular use is fair or not (7). When in doubt, it is always best to request permission from the copyright owner. Sometimes, however, there may not be enough time to do so, especially in teaching. A hot topic may emerge in midsemester after permissions have already been obtained for “coursepacks”. In this scenario, a one-time use is generally permissible as long as the photocopies are handed out to students individually (not in coursepacks), and it can be shown that sufficient time did not exist to get permission (an “emergency” situation).

Because the fair use doctrine was codified before the “digital age”, it does not contain language discussing articles posted on password-protected Web sites. Ostensibly, this pertains to sites to be used by students enrolled in a class—in these cases, permission must always be obtained. People wanting to use materials copyrighted by ACS should indicate when they need the permission. The ACS Copyright Office prides itself on quick turnaround in addressing rights and permissions and can process rush requests as long as it knows that a rapid turnaround is required.

How have courts ruled on fair use cases? Photocopying is one of the most common applications of fair use in university and corporate settings. Photocopying copyrighted material without the permission of the copyright holder is illegal, unless the copying can be considered fair use (2). The U.S. District Court for the Southern District of New York in Basic Books, Inc. v. Kinko’s Graphics Corp. held that Kinko’s infringed copyrights when it photocopied book chapters for sale to students as coursepacks (8). Permission was not obtained from the copyright owners to reproduce the material.

Regarding the photocopying of articles from scientific journals, the same court ruled on this issue in a 1992 decision, American Geophysical Union v. Texaco (9). The court held that a company making single copies from journals for use by its employees does not meet the standards for fair use under Section 107. This decision was affirmed in 1994 by the U.S. Court of Appeals for the Second Circuit (10). In a case resembling Kinko’s, the Sixth Circuit Court of Appeals in 1996 similarly ruled in Princeton University Press v. Michigan Document Services (11). The court held that a copy shop’s selling of coursepacks to students without obtaining permission from the copyright owners was not fair use. The copy shop and all of the defendants in the above cases were thus held to be infringing on the copyrights.

Alternatives to fair use
Given the above information, I know you’re asking, “How can I legitimately use the fair use doctrine?” The short answer is “don’t”. Chances are you’re going to be in doubt. The ACS Learning Module states that when you’re in doubt, it is prudent to request information from the publisher (7). The Learning Module indicates that, generally speaking, for private, scholarly research purposes, students (and others conducting research) may make one photocopy each of a journal article, book chapter, and so forth, but not a copy of an entire work (e.g., a journal issue, a magazine issue, or a book). There are antipiracy laws to consider, but I will not discuss these laws here.

Write to ACS for permission to copy ACS publications—don’t assume fair use applies. When making copies of an article for a group (e.g., a class), follow guidelines given by the copyright holder. ACS has written guidelines entitled ACS Guidelines for Classroom Use (12). Legislative guidelines that provide overall guidance are available free via the U.S. Copyright Office’s Web site (13). The Association of American Publishers (AAP) also offers a set of classroom guidelines that can be accessed at its Web site (14). The AAP guidelines are excerpted from the legislative history of the 1976 U.S. Copyright Act, and they represent the minimum standards for educational fair use under Section 107.

In this article, I have provided some background, guidance, and advice on how to deal with fair use and where to turn for information. Fair use is the misunderstood child of copyright, and the advice of the ACS Copyright Office is to not rely on fair use or use it as a crutch. Be aware that no circumstances exist under which an unauthorized resale of copyrighted material will be protected under fair use. It is always best to obtain permission from the copyright owner. Not doing so can potentially lead to legal action, and in the worst case scenario, liability in the form of hefty fines (up to $100,000 for each separate act of willful infringement). The U.S. Copyright Office states the following:

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 be safely taken without permission. Acknowledging the source of copyrighted material does not substitute for obtaining permission. . . . The safest course is always to get permission from the copyright owner before using copyrighted material. . . . When it is impracticable to obtain permission, use of the copyrighted material should be avoided. (15)

Please don’t hesitate to contact the ACS Copyright Office with further questions on fair use or any aspect of copyright law.

Acknowledgments
Thanks are extended to Arleen Courtney, ACS assistant copyright administrator; Barbara Polansky, former ACS copyright administrator; and William Cook, director of finance for the ACS Publications Division, for their input to this article.

References

  1. Rinzler, Carol E. Publisher’s Weekly 1983, 223 (14), 26–28.
  2. Polansky, B. F. The ACS Style Guide, 2nd ed.; Dodd, J. S., Ed.; American Chemical Society: Washington, DC, 1997; p 347.
  3. Copyrights. U.S. Code, Section 107, Title 17, 1994.
  4. The University of Texas System, Office of General Counsel. Fair Use of Copyrighted Materials. www.utsystem.edu/ogc/intellectualproperty/copypol2.htm (accessed Dec 2000).
  5. U.S. Copyright Office Home Page. Copyright Basics; www.loc.gov/copyright/circs/circ1.html (accessed Dec 2000).
  6. Consortium for Educational Technology in University Systems. Fair Use: Overview and Meaning for Higher Education; www.cetus.org/fair5.html (accessed Dec 2000).
  7. ACS Publications. Learning Module: What Chemists Need To Know about Copyright. http://pubs.acs.org/copyright/learning_module/module.html (accessed Dec 2000).
  8. Basic Books, Inc. v. Kinko’s Graphics Corp., F. Supp. 1522 (S.D.N.Y. 1991).
  9. American Geophysical Union v. Texaco, 802 F. Supp. 1 (S.D.N.Y. 1992).
  10. American Geophysical Union v. Texaco, 37 F.3d 881 (2d Cir., 1994). Reprinted as amended American Geophysical Union v. Texaco, 60 F.3d 913 (2d Cir., 1994).
  11. Princeton University Press v. Michigan Document Services, 99 F.3d 1381 (6th Cir., 1996) (en banc).
  12. American Chemical Society. ACS Guidelines for Classroom Use. http://pubs.acs.org/copyright/learning_module/disclaimer.html (accessed Dec 2000).
  13. U.S. Copyright Office. Reproductions of Copyrighted Works by Educators and Librarians; Circular 21; http://lcweb.loc.gov/copyright/circs/circ21.pdf (accessed Dec 2000).
  14. Association of American Publishers. Guidelines for Classroom Copying; http://publishers.org/
  15. U.S. Copyright Office. FL 102, In Answer to Your Query, Fair Use. www.loc.gov/


Eric S. Slater is the copyright administrator for the ACS Publications Division (1155 16th St., NW, Washington, DC 20036; 202-872-4367; copyright@acs.org).

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