Recent Developments

Issues that affect ministers and churches
Instructional Purposes as "Fair Use" of Copyrighted Materials
Making copies of works for this purpose does not constitute "fair use".
Key point: Making copies of copyrighted religious works for instructional purposes does not constitute permissible "fair use."

A federal court in California ruled that an instructor who made copies of copyrighted religious books and tapes for instructional purposes was guilty of copyright infringement. The court rejected the instructor's defense of "fair use." The Copyright Act permits owners of copyrighted material to engage in the "fair use" of such material. The concept of fair use is a narrow one that should not be viewed as a form of blanket authorization to duplicate copyrighted materials. In determining whether a particular use of a copyrighted work is a "fair use," four factors are considered. First, what is the purpose and character of the use? Second, what is the nature of the copyrighted work? Third, what is the "amount and substantiality" of the portion copied? That is, how much of the copyrighted work is used? The more of a copyrighted work that is copied, the less likely the copying will be considered a fair use. One thing is certain—verbatim or nearly verbatim reproductions of an entire copyrighted work will never be deemed a fair use. Fourth, what effect will the unauthorized use have upon the marketability of the copyrighted work? The court concluded that the instructor failed all four of these factors. The purpose of the copying was commercial (the copied materials were sold to students); the nature of the copyrighted works were creative and thus entitled to a higher degree of protection; the amount copied (the entire copyrighted works) was substantial; and, the impact of the copying on the copyright owner's rights was significant since the instructor's act of unauthorized copying "fulfilled the demand for the original works and [will] diminish or prejudice their potential sale." Finally, the court rejected the instructor's claim that her copying met the standards for "fair use" as set forth in the so-called "fair use guidelines" for classroom copying of educational materials. In 1975, groups of authors and publishers adopted guidelines for classroom copying in nonprofit educational institutions. The House Report on the Copyright Act of 1976 reprinted these guidelines in full, and further noted that they "are a reasonable interpretation of the minimum standards of fair use." The guidelines apply only to educational copying of literary works (books, articles, poetry, charts, etc.). Among other things, the guidelines specify that a teacher may make a single copy of a chapter from a book or an article from a periodical for use in teaching or in preparing to teach. The court observed that the instructor's copying in this case "was not restricted to one copy for her own use in teaching" and therefore was not eligible for a fair use exemption. The guidelines also permit teachers to make multiple copies of a copyrighted work for classroom use, but several restrictions apply. For example, a teacher may make multiple copies of an entire article of less than 2,500 words or an excerpt from a longer work so long as the excerpt is not more than the lesser of 1,000 words or 10 percent of the entire work. Further, the decision to use the work must be "spontaneous" in the sense that it is so close in time to the date the work is to be used that it would be unreasonable to expect a timely reply to a request for permission to reproduce it. There also are strict limitations on the number of times this exception can be used. The court concluded that this exemption did not apply: "[T]he undisputed evidence shows [that the instructor's] copying was not limited and spontaneous, but was extensive and methodical, and consisted of copying from the same author, time after time. This is clearly not within the letter or spirit of the congressional guidelines." Bridge Publications, Inc. v. Vien, 827 F. Supp. 629 (S.D. Cal. 1993).

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