Faculty members in the higher education community are increasingly being identified as actual and potential violators of the Copyright Act of 1976 (P.L. 94-553). Whether involved in classroom teaching, research, publishing, or other scholarly endeavors, knowledge of the copyright law and its implications in these areas is essential for individuals involved in nursing education
Article I, Section 8, Clause 8 of the United States Constitution states "The Congress shall have the power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Rights to their respective Writings and Discoveries." This is the clause which gives the United States federal government the authority to enact legislation regarding copyright. Inherent within this clause is the conflict that copyright legislation attempts to mediate. On one side is the public interest in promoting science and arts; on the other is the rights of the creators who through their works provide progress in the sciences and arts. The need to protect the rights of the creator is seen as a way to ensure that they will continue to promote progress. The copyright legislation is an attempt to balance the need for making new information available to the public and yet allow the creators of the new information to receive something in return for their labors. Although not specifically stated, the financial protection is the aspect that has most recently become a major concern. However, the copyright laws have predominantly been interpreted as having the primary responsibility of protecting the works from reproduction and still promoting the sciences and arts. Financial remunerations to the creator have been a secondary consideration.
Section 102 of the Copyright Act of 1976 includes the definition of the types of works which are protected under the law as well as language which clarifies the fact that what is copyrightable is forms of expression, and that ideas, concepts, theories, discoveries, etc. in and of themselves are not copyrightable. Theories, principles, and ideas of this nature belong to the public. The way in which an individual expresses the theory is what can be copyrighted. The law clearly differentiates between expression and idea.
Copyright can be defined today as protection for authors against unauthorized copying of their works for a specified length of time. The Copyright Act of 1976 provides for protection that begins as soon as the work is created and is effective until 50 years after the death of the last living author. Anonymous and pseudonymous works and works made for hire are protected for 75 years from publication or 100 years from creation whichever is shortest.
Since most materials used in nursing education hold a copyright, the technical requirements of copyright notice and registration also have a potential impact on nursing education. The moment one finishes creating a work it has copyright protection. In order to maintain copyright protection, the concept of publication must be understood. Publication is defined as offering copies to the public. It does not have to be sold to the public, nor does it have to be offered to a large number of individuals. So, a faculty member who distributes copies of an original essay to a class of students is considered to have published that essay. For this faculty member to protect his or her copyright, it would be necessary to include notice of the copyright on the essay.
The work must meet three fu nd am entai concepts to be protected by copyright. These are fixation, originality, and expression (Strong, 1981). The concept of expression was discussed earlier. Fixation requires that the work be somehow embodied in a permanent way. A lecture would not meet this test unless it had been either sound recorded or videotaped. In either case it would have become fixed in a tangible way. Originality requires that the work be an original form of expression. It does not require that the work be novel, ingenious, or have any esthetic qualities.
There are works which even though they meet these three requirements still are not eligible for copyright protection. These are works which are considered to be within the public domain, or works which were created by employees of the federal government while acting within the scope of their employment. Works enter the public domain when they have had copyright protection and it has expired or has been lost for some other reason.
Two sections of the Copyright Act of 1976 have direct implications for college and university faculties. The first is Section 107 which addresses fair use and the second is Section 108 which addresses reproduction by libraries and archives.
Fair use is the right to copy without permission of the copyright holder in some instances. This concept was not part of the original 1909 Act, developed out of case law, and was included in the 1976 Act. Section 107 states:
. . . 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; 21 the nature of the copyrighted work; 3 1 the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4) the effect of the use upon the potential market for a value of the copyrighted work.
This section of the law acknowledges the doctrine of fair use but it still does not provide clear direction in the interpretation of this section. In an attempt to clarify what did and did not constitute fair use, the Ad Hoc Committee of Educational Institutions and Organizations on Copyright Law Revision was organized. This Ad Hoc Committee, in conjunction with the Authors League of America, Inc. and the Association of American Publishers, Inc. met and agreed upon guidelines for the interpretation of fair use. These guidelines appear in the House Report as part of the legislative history which the judiciary may use in interpreting the law. However, there has not been total agreement on these guidelines and the American Association of University Professors and the Association of American Law Schools went on record as being opposed to this agreement.
These guidelines, regardless of opposition, are the ones that appear to be being used by many individuals on both sides of the issue. This may be because of the lack of other guidelines published and accepted by users of copyrighted works. These guidelines allow that a single copy can be made of a chapter from a book, an article from a periodical or newspaper, a short story, short essay or short poem, whether or not from a collective work, or a chart, graph, diagram, drawing, cartoon or picture from a book, periodical, or newspaper for his or her scholarly research or use in teaching or preparation to teach a class. Multiple copies (not to exceed in any event more than one copy per pupil in a course ) may be made for classroom use or discussion as long as the copying meets the tests of brevity, spontaneity, and the cumulative effect test, and that each copy includes a notice of copyright.
Snyder (1980) discusses the entena that are provided for the brevity, spontaneity, and cumulative effect tests. The criteria for brevity may be met if the entire work is copied providing the total length is less than 2,500 words. In the case of a work over 2,500 words then 1,000 or 10% of the work, whichever is less, may be copied. Articles found in journals that would be commonly used in nursing education are frequently considerably longer than 2,500 words. Whether the courts will find these guidelines arbitrary and unreasonable remains to be seen.
Spontaneity requires that the decision to copy is made by the individual teacher and not by a higher administrator. It also requires that the decision to use the work come close to the time when it would be needed, so as to preclude getting permission from the author prior to using it. The obvious problem with this guideline is how do you determine what is considered not enough time to be able to get permission prior to using the copyrighted work.
The cumulative effect test includes that copying cannot be done more than once from a periodical volume or collective work during a class term. It also provides that no more than nine instances of multiple copying for one course can occur during one class term. The copying cannot substitute for the purchase of books, reprints, or periodicals and cannot occur with the same item by the same teacher from term to term.
The doctrine of fair use in education is one that is receiving considerable attention right now. One of the points that is frequently raised is that the guidelines from the Ad Hoc Committee clearly state that they are minimal standards and should be seen as such. It will remain for the courts to establish maximum standards.
An issue closely related to fair use in higher education is the role of libraries in reproducing copyrighted works. This area is dealt with in Section 108. This section addresses in depth the boundaries within which a library should act. By law a library is allowed to produce and distribute copies of copyrighted works but within strict guidelines.
There are three conditions which must be met for a library to reproduce a works. They are:
1) the reproduction or distribution is made without any purpose of direct or indirect commercial advantage; 2) the collections of the library or archives are ( i > open to the public, or (ii> available not only to researchers affiliated with the library or archives or with the institution of which it is a part, but also to other persons doing research in a specialized field; and 3) the reproduction or distribution of the work includes a notice of copyright.
The section also provides four clearly defined reasons which are acceptable. Three of these include preservation, reproduction, or replacement of works that cannot be obtained at a fair price. The final category is one that is most frequently encountered in nursing education. This is reproduction of articles, contributions, or small excerpts. The law limits this to one copy of no more than one article or other contribution to a collection or periodical issue and only if the copy becomes the property of the user and the library has no knowledge that the copy will be used for any purpose other than private study, scholarship, or research. As a result, many libraries have adopted a policy of not making any copies for individuals.
One area where the copyright law is becoming problematic for nursing faculties is that of the library reserve collection. Because of the tremendous technological and knowledge explosion occurring in the area of nursing theory, research, and practice, many educators are requesting that articles be placed on reserve for their students to have access to. If the library chooses to use the above guidelines in their strictest sense, then articles may be placed on reserve for only one academic term. This precludes the placing of classic articles on reserve to be used from term to term. Faculty members could also be forced to decide upon which article out of a periodical issue or volume to require for their students, since no more than one per issue could be used. This is particularly bothersome when a journal devotes an entire issue to a specific topic but only one article can be placed on reserve.
Some university and college libraries are requiring that faculty members gain written permission from publishers before they will place copyrighted materials on reserve. Although most publishers will grant permission, it is becoming common for a fee to be required. This may vary from $.50 to $2.00 per page or a flat fee per article, issue, or volume.
Another practice that has become increasingly popular is for faculty members to put together an anthology of articles that the student purchases for reproduction costs. Several recent court cases brought by publishers have found that this is in direct violation of the Copyright Act of 1976 (Palmer, 1983).
Although this paper addressed only the written works as they are protected by copyright law, the area of audio/visual works is also receiving more attention from publishers and users in the higher education community. The doctrine of fair use and guidelines for librarians were included in the Copyright Act of 1976 with the hope of clarifying the rights and responsibilities of authors, publishers, and users. It would appear from the literature in this area, the Congressional history, and the judicial history that this hope has not been realized.
A great deal of clarification still lies ahead for all parties involved. The courts are still interpreting the intent and meaning of the Copyright Act but even as they do so a defense of ignorance or confusion regarding the law has not been an acceptable defense. Until the time there is consensus on maximum as well as minimum standards, nursing educators should work in cooperation with their libraries and, if necessary, their institution's legal counsel in utilizing copyrighted works in educational situations where students are not encouraged to purchase or cannot purchase them.
- Palmer, S. (1983, January 5>. Publishers sue 9 professors. The Chronicle of Higher Education, pp. 1, 26-27.
- Snyder, F. (1980). Copyright and the library reserve room. Law Library Journal, 73. 702-714.
- Strong, W.S. (1981). The copyright book: A practical guide. Cambridge Ma.: The Massachusetts Institute of Technology Press.