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The statements in this report with respect to each of the criteria of fair use are necessarily subject to qualifications, because they must be applied in combination with the circumstances pertaining to other criteria, and because new conditions arising in the future may alter the balance of equities. It is also important to emphasize that the singling out of some instances to discuss in the context of fair use is not intended to indicate that other activities would or would not be beyond fair use.
The purpose and nature of the use
Copyright recognized.—Section 107 makes it clear that, assuming the applicable criteria are met, fair use can extend to the reproduction of copyrighted material for purposes of classroom teaching.
Nonprofit element.—Although it is possible to imagine situations in which use by a teacher in an educational organization operated for profit (day camps, language schools, business schools, dance studios, et cetera) would constitute a fair use, the nonprofit character of the school in which the teacher works should be one factor to consider in determining fair use. Another factor would be whether any charge is made for the copies distributed.
Spontaneity.—The fair use doctrine in the case of classroom copying would apply primarily to the situation of a teacher who, acting individually and at his own volition, makes one or more copies for temporary use by himself or his pupils in the classroom. A different result is indicated where the copying was done by the educational institution, school system, or larger unit or where copying was required or suggested by the school administration, either in special instances or as part of a general plan.
Single and multiple copying.—Depending upon the nature of the work and other criteria, the fair use doctrine should differentiate between the amount of work that can be reproduced by a teacher for his own classroom use (for example, for reading or projecting a copy or for playing a tape recording), and the amount that can be reproduced for distribution to pupils. In the case of multiple copies, other factors would be whether the number reproduced was limited to the size of the class, whether circulation beyond the classroom was permitted, and whether the copies were recalled or destroyed after temporary use.
Collection and anthologies.—Spontaneous copying of an isolated extract by a teacher, which may be a fair use under appropriate circumstances, could turn into an infringement if the copies were accumulated over a period of time with other parts of the same work, or were collected with other material from various works so as to constitute an anthology.
Special uses.—There are certain classroom uses which, because of their special nature, would not be considered an infringement in the ordinary case. For example, copying of extracts by pupils as exercises in a shorthand or typing class or for foreign language study, or recordings of performances by music students for purposes of analysis and criticism, would normally be regarded as a fair use unless the copies of phonorecords were retained or duplicated.
