Up to now...
Last month in A Trainer's Guide to Copyright - Pt. 1 (web link below), we looked at guiding principles for a trainer's use of copyrighted materials under the "fair use" exception.
This month we'll address:
- Whether government agencies have any special rights to use copyrighted material and
- How courts have applied the fair use doctrine in situations law enforcement trainers might find themselves in.
DISLAIMER: The opinions expressed in this article are NOT intended nor should they be taken as legal advice. They are for discussion purposes only. Consult a qualified attorney for specific questions. (How's that for lawyer speak?)
Use of copyrighted material by a government agency.
Last month we learned that whether or not a trainer's use of copyrighted material falls within the "fair use" exception depends on a balancing of four factors:
- The purpose of the use;
- The nature of the work used;
- The amount used, and;
- The effect of the use on the market for the original.
Under the first of these factors, nonprofit educational uses are favored over commercial uses. However, a law enforcement agency is neither a nonprofit educational institution nor a business. It's part of government.
The U.S. Department of Justice, Office of Legal Counsel, has stated in an opinion (web link below), that "while government reproduction of copyrighted material for governmental use would in many contexts be non-infringing because it would be a 'fair use' under 17 USC § 107, there is no 'per se' rule under which such government reproduction of copyrighted material invariably qualifies as a fair use." (Emphasis added.)
Moreover, Congress expressly provided that a work protected by the Copyright Laws can be infringed by the United States government (28 USC § 1498(b)). The same would hold true for state and local government.
In one of the rare reported cases that addressed governmental photocopying and found it fair use, the Supreme Court in Williams & Wilkins Co. v. United States, 420 U.S. 376 (1975), noted, amongst other things:
- The photocopying was a limited portion of a larger work;
- The copies were not sold;
- Such photocopying had long been accepted across the nation;
- The plaintiff was unable to show economic detriment;
- Medical science would be seriously hurt by a finding of infringement; and
- The law in many foreign countries was that such practice was not infringing.
The Court's consideration of the detriment to medical science seems rooted in copyright's very purpose, '(t)o promote the Progress of Science and useful Arts.' Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994). Thus, use of copyrighted materials in training related to the sciences involved in law enforcement may be viewed more favorably than other training topics.
More court cases. (Web links to full opinions below.)
What if I want to include copies of parts of published books or magazine or journal articles in my handouts or training materials?
In Princeton University Press v. Michigan Document Services, Inc., 99 F. 3d 1381 (6th Cir. 1996), a private copy shop photocopied parts of published books that University professors had selected for their classes. The print shop then sold them as "coursepacks" to university students.
In finding copyright infringement, the court placed the most emphasis on the fourth factor - the effect on the market. Licensing or potential licensing opportunities existed for all of the copied material, which weighed heavily against fair use. The court additionally noted that more than 5% of each book was copied.
Likewise, in Basic Books, Inc. v. Kinko's Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991) - another "coursepacks" case finding infringement, the court noted that copying from 5% to 25% of the original book was excessive.