An explanation of why the law requires people to obtain permission and pay fees for photocopying:

Copyright exists to foster and induce the creation of all forms of intellectual property, including books.  The copyright law does so by providing fair returns to creators and copyright owners.  To the extent that any organization unlawfully makes and sells (portions of) copyrighted works without permission, authors and publishers are deprived of revenues in the very market for which they have written and published.  This could severely reduce the incentive to write and publish books and, in the long run, harm education because investments of time and money in new books will not be made if others copy such books without compensation to the copyright owners.

For classroom, research and library reserve use:

I.  The Copyright Act and Photocopying

Faculty and staff of Dakota College at Bottineau may, on occasion, use photocopied materials to supplement research and teaching.   In many cases, this practice can facilitate the development and transmission of information.  However, the photocopying of copyrighted materials is a right granted under the copyright law's doctrine of "fair use" which must not be abused. 

The Copyright Act (U.S. Constitution, Art. I, Sec. 8. The Copyright statute, 17 U.S.C. 101 et seq.) defines the rights of a copyright holder and how they may be enforced against the infringer.  Included within the Copyright Act is the "fair use" doctrine that allows, under certain conditions, the copying of copyrighted materials.  While the Act lists general factors under the heading of "fair use," it provides little in the way of specific directions for what constitutes fair use.  The law states:

17 U.S.C. 107 Limitations on exclusive rights: Fair use

Notwithstanding the provisions of section 106, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use,) scholarship, or research, is not an infringement of copyright.  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 non-profit educational purposes;
2. The nature of the copyrighted work;
3. The amount and substantiality of the portion of the work used in relation to the copyrighted work as a whole; and
4. The effect of the use in question upon the potential market for or value of the copyrighted work.

The purpose of this document is to make faculty, staff and students of this institution aware of when the photocopying of copyrighted materials is, in our opinion, permitted under the fair use doctrine.  Some common examples have been included to illustrate what we believe to be the reach and limits of fair use.

Copyright law applies to all forms of photocopying:  commercial-copying centers, institutional or departmental copying facilities, or self-service machines.   Faculty and staff members must determine for themselves which works will be photocopied.  Dakota College at Bottineau does not condone a policy of photocopying instead of purchasing copyrighted works where such photocopying would constitute an infringement under the Copyright law, but does encourage faculty and staff members to exercise good judgment in serving the best interests of students in an efficient manner.  This institution and its faculty and staff will make a conscientious effort to comply with these guidelines.

Instructions for securing permission to photocopy copyrighted works when such copying is beyond the limits of fair use appear on page 5 of this document.  It is the policy of Dakota College at Bottineau that the user (faculty, or staff member) secure such permission whenever it is legally necessary.

When in doubt, request permission!

Guidelines for making multiple copies without permission contain the following prohibitions:

• Unauthorized copying may not be used to create, replace or substitute for anthologies, compilations or collective works, whether or not such unauthorized copies are collected and bound together or are provided separately.
• Unauthorized copies may not be made of "consumable" works, including workbooks, exercises, standardized tests, test booklets, answer sheets and the like.
• Unauthorized copying may not substitute for the purchase of books, publisher's reprints or periodicals.
• Unauthorized copying may not be directed by higher authority, such as a dean or head of a department.
• The same teacher cannot copy the same item without permission from term to term.
• No charge shall be made to the student beyond the actual cost of the photocopying.

Guidelines that indicate multiple copying is allowed in the following situations:

• When an individual teacher is "inspired" to use a work, and the inspiration and decision to use it and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission.
• If the following limitations with regard to the amount of copying of a work are applied:
  • If a complete article, story or essay is copied, and the work copied is less than approximately 2,500 words.  (There are particular rules for certain special works which consist of less than 2,500 words.  For a full text of the guidelines, see Appendix A of this policy)
  • If a prose work is excerpted and copied, and the excerpt copied is no longer than approximately 1,000 words or 10% of the work, whichever is shorter.
  • If a chart, graph, diagram, drawing, cartoon or picture is copied, and not more than one such illustration is copied per book or per periodical issue.
  • If a short poem is copied, and the poem is less than 250 words and printed on not more than two pages; or if an excerpt from a longer poem is copied, and the excerpt is not longer than 250 words.
• The copying is for only one course in the school in which the copies are made.
• No more than one short poem, article, story or essay or two excerpts are copied from works by the same author.  In addition, no more than three works or excerpts may be copied from the same collective work or periodical volume during one class term.  (These guideline limitations of Paragraph D do not apply to current news periodicals, newspapers, and current news sections of other periodicals.)
• The original copyright notice must appear on all copies of the work. 

II. Unrestricted Photocopying

A. Uncopyrighted Published Works

Writings published before January 1, 1978, which have never been copyrighted, may be photocopied without restriction.  Copies of works protected by copyright must bear a copyright notice, which consists of the letter "c" in a circle, or the word "Copyright," or the abbreviation "Copr.", plus the year of first publication, plus the name of the copyright owner. 17 U.S.C. 401.  As to works published before January 1, 1978, in the case of a book, the notice must be placed on the title page or the reverse side of the title page.  In the case of a periodical the notice must be placed either on the title page, the first page of text, or in the masthead.  A pre-1978 failure to comply with the notice requirements resulted in the work being injected into the public domain, i.e., unprotected.  Copyright notice requirements have relaxed since 1987, so that the absence of notice on copies of a work published after January 1, 1978, does not necessarily mean the work is in the public domain 17 U.S.C.405 (a) and (c).  However, you will not be liable for damages for copyright infringement of works published after that date, if, after normal inspection, you photocopy a work on which you cannot find a copyright symbol and you have not received actual notice of the fact the work is copyrighted. 17U.S.C.405 (b).  However, a copyright owner who found out about your photocopying would have the right to prevent further distribution of the copies if, in fact, the work were copyrighted and the copies are infringing. 17 U.S.C. 405(b).

B. Published Works with Expired Copyrights

Writings with expired copyrights may be photocopied without restriction.  All copyrights prior to 1906 have expired.  17 U.S.C. 304 (b).  Copyrights granted after 1906 may have been renewed; however, the writing will probably not contain notice of the renewal.  Therefore, it should be assumed that all writings dated 1906 or later are covered by a valid copyright, unless information to the contrary is obtained from the owner or the U.S. Copyright Office.

C. Unpublished Works

Unpublished works, such as theses and dissertations, may be protected by copyright.  If such a work was created before January 1, 1978, and has not been copyrighted or published without copyright notice, the work is protected under the new Act for the life of the author plus fifty years.  17 U.S.C. 303, but in no case earlier than December 31, 2002.  If such a work is published on or before that date, the copyright will not expire before December 31, 2027.  Works created after January 1, 1978, and not published enjoy copyright protection for the life of the author plus fifty years.  17 U.S.C. 302.

E.  U.S. Government Publications

All U.S. government publications with the possible exception of some National Technical Information Service Publications less than five years old may be photocopied without restrictions, except to the extent they contain copyrighted materials from other sources.  17 U.S.C. 105.   U.S. government publications are documents prepared by an official or employee of the government in an official capacity. 17 U.S.C. 101.  Government publications include the opinions of courts in legal cases, Congressional Reports on proposed bills, testimony offered at Congressional hearings and the works of government employees in their official capacities.  Works prepared by outside authors on contract to the government may or may not be protected by copyright, depending on the specifics of the contract.  In the absence of copyright notice on such works, it would be reasonable to assume they are government works in the public domain.  It should be noted that state government works may be protected by copyright. 17 U.S.C. 105.  However, the opinions of state courts are not protected.

III. Library Reserve Uses

A. Reserve Shelves

At the request of a faculty member, a library may place on reserve excerpts from copyrighted works in its collection in accordance with guidelines similar to those government formal classroom distribution for face-to-face teaching discussed above.  Dakota College at Bottineau believes that those guidelines apply to the library reserve shelf to the extent it functions as an extension of classroom readings or reflects an individual student's right to photocopy for his personal scholastic use under the doctrine of fair use.  The library does not provide photocopying of reserve materials.  Any such materials must be provided by the instructor.

If the request calls for only one copy to be place on reserve, the library may accept an entire article, or an entire chapter from a book, or an entire poem.  Requests for multiple copies on reserve should meet the following guidelines:

1. No more than a total of nine articles or excerpts from books may be placed on reserve for a single class.  For instance, three chapters and six articles may be placed on reserve.
2. No more than one article or chapter by one author may be placed on reserve for a single class.
3. No more than three excepts or articles from a book or periodical volume may be placed on reserve for a single class.
4. Copies may be placed on reserve for only one semester.
5. Copies may be placed on reserve for only one course, but may be placed on reserve for more than one section of a single course.
6. The materials should contain a notice of copyright 17 U.S.C. 401.
7. Copies of consumable items such as workbooks, test booklets, etc. may not be placed on reserve.  Answer sheets, tests, etc. compiled by the instructor may be placed on reserve.

If materials you wish to place on reserve do not meet these guidelines, or if you are in doubt as to whether a particular instance of photocopying is in fair use, you should seek the publisher's permission.  Most publishers will be cooperative and will waive any fee for such a use.

B. Electronic Reserves

Material which will be placed in the Dakota College at Bottineau Reserve system (Eres) without obtaining copyright permission:

• Exams
• Lecture notes
• Syllabi
• Government publications
• One article from a journal issue
• One chapter from a book

When to write for copyright permission for Electronic Reserves:

• When an article from a journal or a chapter from a book is needed for more than one semester.
• When multiple articles from one journal issue are needed for electronic reserve.
• When multiple chapters of a book are needed for electronic reserve.
• When more than one article or chapter by one author is needed for a single course.
• When an out-of-print book is needed for electronic reserve.
• When more than a total of nine articles or excerpts from books is needed for a single course.

We will not place an entire book that is in print in the electronic reserve system.

IV. Permission to photocopy

A. When it is required:

• Repetitive copying:  The classroom or reserve use of photocopied materials in multiple courses or successive years will normally require advance permission from the owner of the copyright, U.S.C. 107 (3).
• Copying for profit:   Faculty should not charge students more than the actual cost of photocopying the material, 17 U.S.C. 107 (1).
• Consumable works:  The duplication of works that are consumed in the classroom, such as standardized tests, exercises, and workbooks, normally requires permission from the copyright owner, 17 U.S.C. 107 (4).
• Creation of anthologies as basic text materials for a course: Creation of a collective work or anthology by photocopying a number of copyrighted articles and excerpts to be purchased and used together as the basic text for a course will in most instances require the permission of the copyright owners.  Such photocopying is more likely to be considered as a substitute for purchase of a book and thus less likely to be deemed fair use, 17 U.S.C. 107 (4).

B. How to obtain permission:

When a use of photocopied material requires that you request permission, you should communicate complete and accurate information to the copyright owner.  The American Association of Publishers suggest that the following information be included in a permission request letter in order to expedite the process:

• Title, author, and/or editor, and edition of materials to be duplicated.
• Exact material to be used, giving amount, page numbers, chapters and, if possible, a photocopy of the material.
• Number of copies to be made.
• Use to be made of duplicated materials.
• Form of distribution (classroom, newsletter, etc.).
• Whether or not the materials is to be sold.
• Type of reprint (ditto, photography, offset, typeset).

The request should be sent, together with a self-addressed return envelope, to the permissions department of the publisher in question.  See Sample below:

Sample letter to copyright owner (publisher) requesting permission to copy:

Date

Material Permissions Department

Journal of Modern Education

323 Eighth Street

New York, NY 00223

Dear Sir or Madam:

I would like permission to copy the following for continued use in my classes in future semesters:

Journal Title: Journal of Modern Education

Copyright: Modern Education Society

Material to be duplicated:  Smith, John. “How to teach." Journal of Modern Education.  V.3, N.4, 1995, p. 232-245. (photocopy enclosed)

Number of copies: 5

Distribution: The material will be placed on reserve at Dakota College at Bottineau Library for the students in my class.

Type of reprint: Photocopy

Use:  The chapter will be used as supplementary teaching materials.

I have enclosed a self-address, stamped envelope for your convenience in replying to this request.

Sincerely,

Faculty Member

The process of granting permission requires time for the publisher to check the status of the copyright and to evaluate the nature of the request.  It is advisable, therefore, to allow enough lead time to obtain permission before the materials are needed.  In some instances, the publisher may assess a fee for the permission.  It is not inappropriate to pass this fee on to the students who receive copies of the photocopied material.

Appendix A

Agreement on guidelines for classroom copying in not-for-profit educational institutions with respect to books and periodicals:

MULTIPLE COPIES FOR CLASSROOM USE:

Multiple copies (not to exceed in any event more than one copy per pupil in a course) may be made by or for the teacher giving the course for classroom use or discussion, provided that:

• The copying meets the tests of brevity and spontaneity as defined below; and,
• Meet the cumulative effect test as defined below; and,
• Each copy includes a notice of copyright.

DEFINITIONS:

Brevity:

i.  Poetry: (a) A complete poem if less than 250 words and if printed on not more than two pages or (b) from a longer poem, an excerpt of not more than 250 words.

ii. Prose: (a) Either a complete article, story or essay of less than 2,500 words, or (b) an excerpt from any prose work of not more than 1,000 words or 10% of the work, whichever is less, but in any event a minimum of 500 words.

(Each of the numerical limits stated in "i" and "ii" above may be expanded to permit the completion of an unfinished line of a poem or of an unfinished prose paragraph.)

iii. Illustration:  One chart, graph, diagram, drawing, cartoon or picture per book or per periodical issue.

iv. "Special" works: Certain works in poetry, prose or in "poetic prose" which often combine language with illustrations and which are intended sometimes for children and at other times for a more general audience fall short of 2,500 words in their entirety.  Paragraph "i" above notwithstanding such "special works" may not be reproduced in their entirety; however, an excerpt comprising not more than two of the published pages of such special work and containing not more than 10% of the words found in the text thereof may be reproduced.

Spontaneity:

i. The copying is at the instance and inspiration of the individual teacher; and

ii. The inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission.

Cumulative Effect:

i. The copying of the material is for only one course in the school in which the copies are made.

ii. Not more than one short poem, article, story, essay or two excerpts may be copied from the same author, nor more than three from the same collective work or periodical volume during one class term.

iii. There shall not be more than nine instances of such multiple copying for one course during one class term. 

The limitations stated in "ii" and "iii" above shall not apply to current news periodicals and newspapers and current news sections of other periodicals.)

PROHIBITIONS:

Notwithstanding any of the above, the following shall be prohibited:

• Copying shall not be used to create or to replace or substitute for anthologies, compilations, or collective works.  Such replacement or substitution may occur whether copies of various works or excerpts therefrom are accumulated or are reproduced and used separately.
• There shall be no copying of or from works intended to be "consumable" in the course of study or teaching.   These include workbooks, exercises, standardized tests and test booklets and answer sheets and like consumable materials.
• Copying shall not:
  • Substitute for the purchase of books, publisher's reprints or periodicals;
  • Be directed by higher authority;
  • Be repeated with respect to the same item by the same teacher from term to term
  • No charge shall be made to the student beyond the actual cost of the photocopying.