(The director of our graduate writing program recently asked me to write an explication of “fair use” of copyrighted materials.)
Much of the great literature that we want our students to read, for example, Shakespeare, Milton, Emerson, and Twain, is in the public domain — that is, not protected by copyright. Any work that was published before 1923 can legally be copied and distributed to our students without restriction. However, most of us want our students to read modern and contemporary literature as well as the classics. For work published after 1923, including new translations of traditional literature, copyright restrictions apply.
The United States Constitution gives Congress the power to secure for “Authors… the exclusive Right to their respective Writings…” and authors may assign all or part of their rights to others, including publishers and agents. The Federal statutes regarding copyright can be found in Circular 92: Copyright Law of the United States and Related Laws, contained in Tıtle 17 of The United States Code updated October 2007. The entire 311 page document can be found online: http://www.copyright.gov/title17/
As English teachers interested in exposing our students to good writing, discussing literature in our classrooms, and quoting texts in our critical and creative writing, we should pay special attention to Section 107 — the “fair use” passage — which outlines what we are allowed to do:
§ 107 · Limitations on exclusive rights: Fair use40 Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copy-righted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
As you can see, we’re on safe ground if we’re quoting a short passage in a review or critical article, as well as using a quotation as an epigraph to a poem or story; and we are also within our rights when, as part of our classroom teaching, we photocopy or post on a website a short piece which is part of a copyrighted text, for example a single poem or page from a longer text.
However, it is equally clear that there are limitations to fair use. Notice that the limiting principles include (3) the amount and substantiality of the portion used in relation to the copy-righted work as a whole. In other words, if we were to reproduce without permission a significant portion of a copyrighted text, for example an entire short story in a book-length collection of ten stories, then we would be violating copyright. Also notice (4) the effect of the use upon the potential market for or value of the copyrighted work. In other words, if we are reproducing copyrighted material as a substitute for students buying the book, then we are in violation of copyright. Also prohibited would be putting together an anthology of copyrighted material over the course of a semester — for example, handing out a poem each week to students over the course of a semester in lieu of assigning readings in a published textbook.
Violation of copyright is a serious offense carrying severe civil and criminal penalties, including fines and up to 10 years imprisonment (see Appendix G of Title 18). Although it is hard to imagine the FBI rounding up English teachers en masse for over-use of their department copiers, similar infringements, such as trafficking in bootleg CDs, counterfeiting brand-name merchandise, and illegally downloading music and films from the internet – all of which are covered under Title 17 — have been successfully prosecuted in recent years. Thousands of parents of Napster-using teenagers were shocked a few years ago to discover they were being sued for tens of thousands of dollars by a consortium of music publishers; Microsoft and Disney have lobbied the Federal government to include enforcement of intellectual property issues in trade negotiations with China. Copyright infringement on the internet has become so common that many companies and universities have set up websites to streamline the processing of claims against them. The pattern is clear: corporate America and the Federal government take intellectual property issues very seriously.
Significantly, the owner of the copy machine can be held liable in addition to the person using it. So, not only is the individual teacher subject to civil suits and criminal prosecution, but the university (or the local Kinko’s) is liable as well.
Fearing lawsuits from publishers and damage to their reputations, many universities, including Harvard and the University of North Carolina at Charlotte, strictly limit instructors’ use of copyrighted material. If the instructor wishes to use text taken from a published source, he or she must submit a “course packet” to the officially recognized printer (usually the campus bookstore or a local copy shop) who applies for permission to the copyright holder, negotiates a fee, reproduces the text, and sells copies of the course packet to students. The advantage of this system is that the instructor can customize the course materials while protecting the copyright holders’ intellectual property. The disadvantage, of course, is that students are required to pay for shoddily printed, sometimes unreadable, texts which cost as much or more than a published book.
Besides the course packet strategy, what legally sanctioned options do English teachers have to bring poems, stories, and essays to students?
- We can order books through the campus bookstore and require or suggest that the students buy them;
- We can place books or magazines on reserve in the university library — not only paper texts but also legal digital versions of texts sent from publishers;
- We can use email, Blackboard and Facebook to provide students with hyperlinks to whole articles, either on public sites like the NY Times or via the many full text databases that our academic libraries now provide;
- We can read the literature out loud to the students;
- We can reproduce short passages and distribute them to our students via the internet or printed copies;
- We can request permission from publishers to reproduce longer passages.
Copyright laws exist to protect authors from unfair use of their work, and authors and publishers are entitled to compensation for their efforts. As writers and teachers, we have an interest in respecting those legal rights while setting a good example for our students.
Michael Simms is the founder and editor-in-chief of Autumn House Press, as well as a lecturer in the Creative Writing MFA program at Chatham University. The article above is for general information purposes only and is not intended as legal advice. Peter Oresick contributed to this article.