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The nature of the copyrighted work
Character of the work.—The character and purpose of the work will have a lot to do with whether its reproduction for classroom purposes is fair use or infringement. For example, in determining whether a teacher could make one or more copies without permission, a news article from the daily press would be judged differently from a full orchestral score of a musical composition. In general terms it could be expected that the doctrine of fair use would be applied strictly to the classroom reproduction of entire works, such as musical compositions, dramas, and audiovisual works including motion pictures, which by their nature are intended for performance or public exhibition.
Similarly, where the copyright work is intended to be “consumable” in the course of classroom activities—workbooks, exercise, standardized tests, and answer sheets are examples—the privilege of fair use by teachers or pupils would have little if any application. Text books and other material prepared primarily for the school markets would be less susceptible to reproduction for classroom use than material prepared for general public distribution. With respect to material in newspapers and periodicals the doctrine of fair use should be liberally applied to allow copying of items of current interest to supplement and update the students’ textbooks, but this would not extend to copying from periodicals published primarily for student use.
Availability of the work.—A key, though not necessarily determinative, factor in fair use is whether or not the work is available to the potential user. If the work is “out of print” and unavailable for purchase through normal channels, the user may have more justification for reproducing it than in the ordinary case, but the existence of organizations licensed to provide photocopies of out-of-print works at reasonable cost is a factor to be considered. The applicability of the fair use doctrine to unpublished works is narrowly limited since, although the work is unavailable, this is the result of a deliberate choice on the part of the copyright owner. Under ordinary circumstances the copyright owner’s “right of first publication” would outweigh any needs of reproduction for classroom purposes.
The amount and substantiality of the material used
During the consideration of this legislation there has been considerable discussion of the difference between an “entire work” and an “excerpt”. The educators have sought a limited right for a teacher to make a single copy of an “entire” work for classroom purposes, but it seems apparent that this was not generally intended to extend beyond a “separately cognizable” or “self-contained” portion (for example a single poem, story, or article) in a collective work, and that no privilege is sought to reproduce an entire collective work (for example, an encyclopedia volume, a periodical issue) or a sizeable integrated work published as an entity (a novel, treatise, monograph, and so forth). With this limitation, and subject to the other revelant criteria, the requested privilege of making a single copy appears appropriately to be within the scope of fair use.
The educators also sought statutory authority for the privilege of making “a reasonable number of copies or phonorecords for excerpts or quotations * * *, provided such excerpts or quotations are not sub-
