Re: fair use book copying

From: Ruth H. Dukelow <rhdukelo[_at_]LIBOFMICH.LIB.MI.US>
Date: Fri, 4 Mar 1994 15:31:10 -0500 (EST)

The definition of a "portion" depends on whether your photocopying falls under section 107 or 108. And even then, the Act does not provide clearcut rules!

     If your photocopying falls under section 108(d), the user is limited to "no more than one article or other contribution to a copyrighted collection or periodical issue, or to a copy or phonorecord of a small part of any other copyrighted work" subject to other requirements of the section. The Act does not include a clear definition of "a small part," as noted by the Register of Copyrights in the January 1983 Report of the Register of Copyrights, P.118:

     "a 'small part' is, obviously, smaller than the 'substantial part' 
     of a work (whose copying is governed by the more stringent regime 
     set out in section (e)), but where the boundary lies between them 
     is a proper subject for case-by-case analysis, or, ideally, for 
     agreement among the parties,  as in the voluntary guidelines 
     already agreed upon for certain interlibrary transactions, 
     off-air taping, and the copying of music."

If your copying falls under section 108(b) or (e), entire works may be copied (if all other requirements are met).

When your copying falls under section 107, the fair use guidelines (set out in H.R.Rep.No.1476, sec.107) are helpful in suggesting quantifiable limits (but as Mr. Crews points out, they are not "the law"). The guidelines (by stating number of words or 10% or "one chapter", e.g.) attempt to quantify the criterion of section 107(3) "the amount and substantiality of the portion used in relation to the copyrighted work as a whole."

Without knowing all of the facts, I cannot say for certain that your institution's practice of copying "all but one chapter" of various books infringes copyright. As as attorney, however, I would advise obtaining written permission for photocopying which goes well beyond the limits stated in section 108 or section 107 guidelines. For example, while two chapters copied from a twenty-chapter book appears to be fair use, copying nineteen chapters appears to go beyond fair use. When in doubt, it is better to ask for permission than to become a test case.

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Ruth H. Dukelow			rhdukelo[_at_]libofmich.lib.mi.us
Library of Michigan			phone: (517) 373-3617
P.O.Box 30007				fax: (517) 373-5700

Lansing, MI 48909
Disclaimer: My opinions and postings are not those of my employer.

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On Wed, 2 Mar 1994, Peter Cannell wrote:
>
> In the mean time, is there
> a short answer to how a "portion" is defined?
>
> Peter F. Cannell
> Science Editor, Smithsonian Institution University Press
> sipad002[_at_]sivm.si.edu
> voice: 202/287-3738 ext. 328 fax: 202/287-3637
Received on Fri Mar 04 1994 - 21:20:42 GMT