August 18, 2004 @ 14:08pm
Circular 21 is "sort of" valid. Guidelines (that are included in Circular 21) are not the law as we know but many universities and schools use the guidelines to help them make fair use decisions. People like them because they are cut and dried. People like them because they believe they do not have the time or expertise to apply real fair use (section 107) to every photocopy request, for example.
The bad thing is that people believe that the guidelines are the law and mistakenly believe that if they stay within the guidelines, they will be protected from liability. (This is not true. One can be sued for infringement for even a very small bit of copying. The copyright holder decides who they want to sue and why. They do not look at the guidelines first).
Another bad thing is that most folks use the guidelines incorrectly - they are minimum standards, meaning you may be able to photocopy more and still be within fair use. How would you know? Probably by going back to Section 107.
I do not like a lot of the guidelines but understand how people might find them very useful.
Kenny Crews and Dwayne Buttler developed a fair use check list that I think is very good and easy to understand and apply. Go to www.iupui.edu and search for copyright - you will find the Copyright Management center site. I think the checklist and other fair use tools should be evaluated - maybe they will work for your institution.
The University of Georgia System has a great copyright policy, also available on the web. It was written by Ray Patterson who was Representative Kastenmaier's legal advisor when the Copyright Law of 1976 was written. Check that out.
Dan Donnelly at the University of Minnesota has a copyright policy completely based on the statue - not guidelines.
Also, keep in mind that the big library associations (like ALA and ARL etc) have never endorsed any more recent guideline efforts.
The House report referred to in Circular 21 also says "there is no disposition to freeze the doctrine in the statute, especially during a period of technological change." (House report no. 94-1476 at 66 (1976)).
In my mind, guidelines freeze the doctrine.
But you will have to make your own decision based on your situation and how strict or liberal you want to make your copyright materials. You can make up a brand new type of policy. Remember that the guidelines themselves are made up too (albeit from a group who probably thought long and hard while coming up with the guidelines). Also they have not yet been used by the courts to make fair use rulings. The courts look at Section 107.
I know of no educational institution that has been taken to court regarding copyright or photocopying policies.