Journal of Intellectual Property Law, Vol. 5, No. 1 (Fall 1997), pp. 243-305

Abstract

The Regents Guide to Copyright and Educational Fair Use, adopted by the Regents of the University System of Georgia, is the most comprehensive statement on copyright and educational fair use ever adopted by a major university system. The purpose of this comment is to provide a brief background for readers and users of the document.

The Regents Copyright Committee, appointed by Dr. James Muyskens, Senior Vice Chancellor for Academic Affairs, University System of Georgia, continues in existence and has eight members, who represent a cross-section of the university community, and include administrators (two of whom are lawyers), faculty (two of whom are lawyers), and librarians. The Chair is Dr. William Gray Potter, University Librarian at the University of Georgia. All members of the Committee have had first hand experience with problems applying the educational fair use doctrine.

In preparing the Guide, the Committee operated as a committee of the whole and all members share the responsibility and deserve the credit -- or blame, as the case may be -- for the final product. All positions in the Guide were discussed, debated, and approved by the members, in all cases by a majority, and in most instances by consensus. All members of the committee participated, in varying degrees, in the drafting (and redrafting) process.

A study of copyright law made apparent major differences about the proper interpretation of the fair use section of the copyright statute, 17 U.S.C. § 107 (1994). Copyright notices, for example, commonly provide that no one may copy any portion of the book without the written consent of the publisher. Section 107, however, says that “the fair use of a copyrighted work, including such use by reproduction in copies ... is not an infringement of copyright.” More important, for purposes of educational fair use, the section lists use for “teaching (including multiple copies for classroom use), scholarship, or research” as exemplars of fair use. Given this disparity between the provisions of the statute and the language of many copyright notices, the Committee had no choice but to reason its way through the logic of educational fair use in light of the copyright clause of the U.S. Constitution, the copyright statute, and U.S. Supreme Court decisions.

Although there is little identification of educational fair use as such in the cases or literature, Congress gave an unusual amount of attention to it. Thus, four provisions of the Copyright Act are directed to educational fair use:

- teaching, research, and scholarship as exemplars of fair use, § 107; - a non-profit educational purpose as one of the fair use factors, § 107(1); - the subordination of the limitations on library photocopying to the right of fair use § 108(f)(4); and - the limitation of the liability of employees of non-profit educational institutions and their employees for good faith use, even though the use turns out to be infringing, § 504.

These statutory provisions indicate the importance Congress attached to educational fair use, and this manifestation of congressional concern was a factor in the consideration of the “Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions.” Contained in the House Report on the 1976 Copyright Act, pages 68-70, the Agreement on Guidelines has been widely cited by publishers as having the effect of replacing the right of educational fair use under section 107. This view of the Agreement, however, is inconsistent with Congress' special treatment of educational use as well as the language in the introduction to the Agreement. That language clearly says that “the following statement of guidelines is not intended to limit the types of copying permitted under the standards of fair use under judicial decision and which are stated in Section 107.”

In addition to this language, there is the fact that Congress did not enact the Agreement on Classroom Guidelines, and whatever its legal status, it seems clear that an agreement between private parties cannot override the copyright statute that Congress did enact. The Agreement on Classroom Guidelines, then, did not prove to be very useful in seeking to provide a balanced guide to educational fair use for members of the educational community.

There are two fair use cases often cited as limiting the right of educational fair use. These cases, however, do not support this proposition. Upon analyzing them, a reader will find that the courts rendering them did not rule on educational fair use at all. The defendants in the cases were not professors or students, but commercial copyshops, and the holdings were that a commercial copyshop in making the copies -- even at the request of a professor -- makes a commercial use of the works copied and is not entitled to the fair use defense. By limiting their holding to commercial use, the courts avoided the issue of educational fair use, that is, whether a professor or student could make copies of excerpts for teaching and learning.

A basic issue facing anyone concerned with the advancement of knowledge is whether the right of educational fair use is congruent with the constitutional policies of copyright and consistent with decisions of the U.S. Supreme Court. The copyright clause of the U.S. Constitution is a limitation on, as well as a grant of, Congressional power and manifests the limitation in three policies: 1) the promotion of learning, because it so states; 2) the protection of the public domain, because copyright is available only for original works only for a limited time; and 3) public access to copyrighted materials, because the constitutional purpose of copyright is to promote learning. And since educational fair use is in the public interest, the Regent's Guide is consistent with the rulings of the U.S. Supreme Court that copyright is primarily to benefit the public and only secondarily to benefit the author (or copyright owner). My own view is that the Committee followed reason to its logical conclusion and provided a balanced view of educational fair use that will serve the cause of learning without disserving copyright owners. My observation of the Committee's deliberations convinced me that the members remained fully cognizant throughout its deliberations of the legitimacy of the economic concern of publishers, but also of the constitutional and statutory limitations on the copyright monopoly and of its responsibility to provide a guide for members of the University System community that is within the law. My impression was that the Committee members were concerned with what the law is, not what they might wish it to be. Above all, they seemed to want to avoid the fallacy that occurs when the wish becomes father to the thought.

Any disinterested reader who studies the Guide and examines the authorities relied upon will, I think, agree that teachers and students may safely rely upon it as a guide to the fair use of copyrighted materials for the classroom.