photocopying database articles and spontaneity

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  • Hi, an instructor I work with wanted to make photocopies of a Thomson Gale database article for a class. I contacted Thomson Gale and they said that she would need to fill out a request form and possibly wait a couple of weeks.

    However, if the article met the guidelines of brevity and spontaneity, would making and distributing photocopies be okay?

    The students are inmates in a local prison and they can't access the article online, thus the need for photocopies.

  • Hi. Copyright law is intentionally vague and it's not possible to give you a definitive yes or no. However, I believe that what your instructor wants to do is legal.

    Brevity and spontaneity come from the Classroom Guidelines which were developed by interested parties, not Congress. I believe the Guidelines contradict the law, and I don't use them.

    When possible, I use Fair Use (Title 17 Section 107) to justify my use. There are four factors to consider:
    1. Character of use (educational vs. commercial)
    2. Nature of work (factual vs. creative)
    3. Amount used (the same idea as brevity, but without the rigid %s from the guidelines)
    4. Market effect

    Your use:
    1. Clearly educational. This helps you.

    2. Don't know. Probably more factual than creative since it's Gale, but I usually assume that the work is creative and reevaluate later if necessary. So, right now, I'm assuming this hurts you.

    3. Probably hurts you. If you are using the entire article, this hurts you. If you are using the entire article, this also fails the brevity test from the guidelines. The length of the work doesn't matter, the % of the whole does.

    4. There is a lot of disagreement over market effect. I don't think anyone really knows the answer because case law is somewhat limited in this area. My personal opinion is that there is no market effect. The prisoners are not going to buy the article. I think only two realistic possibilites exist: the prisoners will either read a photocopy or the won't read it at all. So, in my view, no sale is being lost, and the market is not being affected.

    In this situation, I believe that the 1st and 4th factors outweigh the 2nd and 3rd. Therefore, I think this is fair use, and I would make the photocopies.

    We don't have a lot of people posting right now, so I don't know if you are going to get an alternative point of view or not. Therefore, I want to stress that copyright law is vague. Although I believe in my interpretation, I cannot say definitively that my interpretation is the correct one.
  • I agree with AFry that the guidelines are not law and many institutions do not use them in establishing copyrignt policy.
    If your institution does choose to follow the guidelines, since many do, then I believe your use is not a violation. I have faced this many times where they brought me the article at the last minute and needed to use it now. We made the copies or put it on reserve and worried about permission if they wanted to use it in subsequent semesters. This is the type of situation the classroom use exemption is meant to address, I believe.

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