Department of Law
State of Georgia
UNOFFICIAL OPINION


Honorable Louise McBee
State Representative, District 88
Legislative Office Building, Room 509
Atlanta, GA  30334


Honorable Tom Campbell
State Representative, District 42
Legislative Office Building, Room 401
Atlanta, Georgia 30334


                    Re:  The Scope of the Fair Use Doctrine, 17
                         USC §107, for making copies for
                         classroom use, for teachers who make
                         copies for research and scholarship, and
                         the potential liability of teachers,
                         librarians and employees of non-profit
                         institutions for exceeding the
                         parameters of fair use. 


Dear Representative McBee and Representative Campbell:


This responds to your separate requests for an unofficial opinion
concerning the scope of the Fair Use Doctrine as applicable to
the educational environment of Georgia's schools, colleges and
universities.  Specifically, you have requested my opinion
whether teachers may prepare and have reproduced excerpts from
copyrighted works in the form of "course packs" for teaching
purposes, and whether teachers may reproduce copyrighted material
for personal scholarship and research without infringing a
copyright.  Finally, you have requested my opinion concerning the
potential liability of teachers, librarians, and employees of
non-profit educational institutions where reproductions of
copyrighted material have been made in the good faith belief that
the copyright was fair use, but the copying is determined to be
an infringement.  I will respond to these issues seriatim.



I.   Multiple Copies of Excerpts from Copyrighted Works for
     Classroom Teaching Made by or at the Request of a Teacher is
     Fair Use.


At the outset, it is important to understand that a basic policy
of copyright law is that a copyright is primarily a mechanism for
serving the public interest in the education of the citizenry and
the exchange of ideas. See U.S. Const., Art. I, § 8, cl. 8.  See
also Sony Corp. v. Universal City Studios, 464 U.S. 417, 429
(1985) (The monopoly of copyright is limited and "is a means by
which an important public service may be achieved.")  The
limitations of the grant are embodied, at least in part, in the
judicially created fair use doctrine, which was codified for the
first time in the 1976 Copyright Act, 17 USC § 107 (hereinafter
section 107), as follows:


             Notwithstanding the provisions of section
          106, the fair use of a copyrighted work,
          including such use by reproduction in copies
          or phonorecords or 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 nonprofit
               educational purposes;


          (2)  the nature of the copyrighted work;


          (3)  the amount and substantiality of the
               portion used in relation to the
               copyrighted work as a whole; and


          (4)  the effect of the use upon the potential
               market for or value of the copyrighted
               work. The fact that a work is
               unpublished shall not itself bar a
               finding of fair use if such finding is
               made upon consideration of all the above
               factors.


(Emphasis added.)   


     A.   Section 107 and its Application.

The application of section 107 requires an analysis of its two
paragraphs. The introductory paragraph states that fair use
includes use by copying and lists six exemplars of fair use:
criticism, comment, news reporting, teaching (including multiple
copies for classroom use), scholarship or research. It also makes
clear that fair use is not an infringement of copyright.  "[F]air
uses are affirmatively guaranteed to the public." Princeton Univ.
Press v. Michigan Document Services, No. 94-1778, ___F.3d___ (6th
Cir. Feb. 12, 1996). And it is worthy of note that the Eleventh
Circuit recently stated in dictum that fair use is a right, not
merely a defense.  Bateman v. Mnemonics, Inc., ___F.3d___, 1995
WL 757786 n. 22 (11th Cir., 1995). ("[S]ince the passage of the
1976 Act, fair use should no longer be considered an infringement
to be excused; instead, it is logical to view fair use as a
right.")


The second paragraph lists four non-exclusive factors for
determining whether a use is fair. The following is an analysis
of the four statutory factors:


     1.   [T]he purpose and character of the use, including
          whether such use is of a commercial nature or is for
          nonprofit educational purposes.


The U.S. Supreme Court has said that "[t]he enquiry here may be
guided by the examples given in the preamble of § 107 . . . ."
Campbell v. Acuff-Rose, 114 S.Ct. 1164, 1170 (1994).  Since the
preamble lists as an example "teaching (including multiple copies
for classroom use)," and since whether or not the use is "for
nonprofit educational purposes" is listed in factor 1, it is
clear that this factor favors the teacher who makes, or has
another make, copies only for classroom use.


     2.   [T]he nature of the copyrighted work.
Factor two is a recognition of the fact that there are three
types of copyrightable works: creative or predominantly original
works, 17 U.S.C. § 102(a) and compilations and derivative works.
17 U.S.C. œ 103. Thus the Supreme Court has recently ruled that
factor two "calls for recognition that some works are closer to
the core of copyright protection than others . . . ." Campbell,
114 S. Ct. at 1174. Examples are fiction (more protection) and
factual works (less protection); motion pictures (more
protection) and news broadcasts (less protection); creative works
(more protection) and compilations (less protection). Id.


     3.   [T]he amount and substantiality of the portion used in
          relation to the copyrighted work as a whole.


The amount that can be copied as a matter of fair use is a
logical function of the first two factors, the purpose of the use
and the nature of the work. Since use for the classroom is a
preferred fair use, the basic issue for teachers relates more to
the nature of the work. Clearly it is permissible to copy more
from a work that has only a compilation copyright (§ 103) than
from a work that has a creative copyright (§ 102(a)).  For private
or personal use there may be occasions when the entire work may
be copied.  Sony Corp. v. Universal City Studios, 464 U.S. 417
(1984).


It should also be noted that in determining the amount copied for
fair use purposes, it is appropriate to subtract any unoriginal
or uncopyrightable materials. This conclusion follows from three
rulings of the U.S. Supreme Court in Feist Publications v. Rural
Telephone Co., 499 U.S. 340 (1991). These rulings are:


          a.   "To qualify for copyright protection, a work must
               be original to the author." 499 U.S. at 345.
               (emphasis added) (This is because, as Feist
               repeatedly stated, originality is a constitutional
               requirement; "accordingly, copyright protection
               may extend only to those components of a work that
               are original to the author." 499 U.S. at 348.)
          b.   There is a constitutional right to use
               uncopyrightable material contained in a
               copyrighted work. 499 U.S. at 349.
          c.   To establish infringement, a copyright owner must
               prove "copying of constituent elements of the work
               that are original."  499 U.S. 361.


     4.   [T]he effect of the use upon the potential market for 
     or value of the copyrighted work.


Prior to the U.S. Supreme Court's decision in Campbell v. Acuff-Rose, supra,
lower courts deemed this to be the most important of
the four factors. The Supreme Court in Campbell made clear,
however, that it is only one of four factors to be considered,
and it is to receive no greater weight than the others.  The
application of this factor in the context of your request
requires consideration of these points:  1) the user is a
student; 2) the determination of fair use requires a case by case
analysis (a point that the four factors make obvious),  Harper &
Row v. Nation Enterprises, 471 U.S. 589 (1985); 3) the student
would not normally be considered a potential purchaser of the
work absent his enrollment in the course; and 4) since the
student uses the excerpts as a member of the class, the use
probably has very little, if any, effect on the market or
potential market for the work.


     5.   Other Relevant Factors

The four factors are not exclusive and other relevant factors may
be considered. Such factors include whether or not the work is
available. The work may be unavailable, for example, because it
is out of print or because of excessive price. Under 17 U.S.C.
§ 108, Limitation on exclusive rights:  Reproduction by libraries
and archives, the rights of reproduction apply to the entire work
if it is determined "on the basis of reasonable investigation,
that a copy or phonorecord of the copyrighted work cannot be
obtained at a fair price . . . ." 17 U.S.C. § 108(e) (emphasis
added).  One hard and fast rule for the teacher who wishes to
make copies for the classroom, however, is this: There should be
no copying of an entire work to substitute for its purchase by
class members.   


It is important to note that the Court of Appeals for the Sixth
Circuit has recently held that teachers may have others make
copies for classroom use. Said the court: 


          We hold that the Copyright Act does not prohibit
          professors and students who may make copies themselves
          from using the photoreproduction services of a third
          party in order to obtain those same copies at less
          cost.


Princeton Univ. Press v. Michigan Document Services, No. 94-1778,
---F.3d---(6th Cir. Feb. 12, 1996)

II.  Teachers May Reproduce Copies of Copyrighted Materials for 
     Scholarship and Research Purposes.


Section 107 makes clear that teachers may make personal copies
for scholarship and research purposes. Thus, scholarship and
research are two of the six exemplars of fair use and may be 
considered preferred fair uses. While the four factors are to be
applied to copying for this purpose, the first factor -- "the
purpose and character of the use, including whether such use is
of a commercial nature or is for nonprofit educational purposes"
-- supports the conclusion that this is a preferred fair use. 


It should be noted also that the Court of Appeals for the Second
Circuit in holding a for-profit corporation liable because its
research scientists made copies of articles from learned journals
for research purposes made it clear that the holding was not
applicable to research carried on by non-profit institutions.
American Geophysical Union v. Texaco, 60 F.3d 913, 916 (2d Cir.
1994, as amended, July 17, 1995) ("We do not deal with the
question of copying by an individual, for personal use in 
research or otherwise (not for resale), . . . our opinion does
not decide the case that would arise if . . . a professor or an
independent scientist engaged in copying and creating files for
independent research, . . . .")
  
III. Teachers, Librarians and Other Employees of Non-Profit
     Institutions are Entitled to a Good Faith Fair Use Defense.


There is always the possibility that in copying copyrighted
materials one may exceed the limits of fair use and thus infringe
the copyright of the copied work. Congress recognized this danger
and provided special protection for teachers, librarians, and
other employees of non-profit institutions in the form of a good
faith defense. If such a person believes in good faith that the
copying is a fair use, neither the copier nor his or her
institution is liable for statutory damages. The Copyright Act
provides:


          The court shall remit statutory damages in any case
          where an infringer believed and had reasonable grounds
          for believing that his or her use of the copyrighted
          work was a fair use under section 107, if the infringer
          was: (i) an employee or agent of a nonprofit
          educational institution, library, or archives acting
          within the scope of his or her employment who, or such
          institution, library, or archives itself, which
          infringed by reproducing the work in copies or
          phonorecords; . . . .


 1 U.S.C. § 504(c)(2).


Since statutory damages may range from $500 to $10,000 and in the
case of willful infringement up to $100,000, 17 U.S.C. § 504(c),
the good faith defense is meaningful protection for teachers and
non-profit institutions. Therefore, it is appropriate to discuss
briefly the factors of good faith.


First, the individual teacher (or librarian) must exercise good
faith in determining whether the copying is fair use. The
following factors should prove helpful in this endeavor.


     1.   The Classroom Guidelines

The House Report on the 1976 Copyright Act contains classroom
guidelines on copying for classroom use. These guidelines are
specific in nature and it is important to understand that they
are best viewed as safe harbor provisions. Thus, as the Court of
Appeals for the Sixth Circuit has said: 


          Congress could easily have enacted the Classroom
          Guidelines into law by including the Guidelines in the
          language of section 107; it chose instead to establish
          four broad factors to be considered in a case-by-case
          analysis of all alleged fair uses, even classroom uses,
          of copyrighted materials. We are bound by Congress'
          decision . . . . [W]e may not permit the statutory text
          enacted by both Houses of Congress 'to be expanded or
          contracted by the statements of individual legislators
          or committees during the course of the enactment
          process.' [citation omitted] 


Princeton Univ. Press v. Michigan Document Services, No. 94-1778,
___F.3d___(6th Cir. Feb. 12, 1996).


Thus if a teacher does not exceed the guidelines, there is no
issue of infringement, no question of fair use and good faith
exists as a matter of law. H. Abrams, 2 The Law of Copyright, 
§ 15.06[A][4].  If, however, the copying exceeds the guidelines,
the teacher or librarian must rely on fair use for the right to
copy the material. 


     2.   The Constitutional Right to Use Uncopyrightable
          Materials in a Copyrighted Work


As noted above, the Supreme Court in Feist held that there is a
constitutional right to use uncopyrightable material in a
copyrighted work. For example, a copyrighted text of historical
documents may include the Declaration of Independence, the
Articles of Confederation, and the U.S. Constitution. None of
these documents can be protected by copyright. It should be noted
also that U.S. Government works are not subject to copyright, 17
U.S.C. § 105, that facts are not subject to copyright, 17 U.S.C.
§ 102(b), and that law is not subject to copyright. Wheaton v.
Peters, 33 U.S. (8 pet.) 531 (1834).


     3.   The Subtraction of Uncopyrightable Material

The above rules, as does the earlier discussion as to amount
used, make it clear that in determining the amount copied for
fair use purposes, it is appropriate to subtract uncopyrightable
material from the portion that is copied.


Teachers should always act in good faith in copying excerpts for
classroom use; and his or her conduct in copying must be such
that an objective observer would conclude that the teacher acted
in good faith. Therefore, it would be appropriate for teachers to
comply with the following factors:


     1.   Limit the size of the excerpt copied to pedagogical
          needs.


     2.   Limit the sale of the copies to members of the class.


     3.   Limit the student's cost to the cost of reproducing the
          materials.
     


In summary, notwithstanding broad copyright notices that may
purport to prohibit any copying without written permission,
copying for classroom use is a legitimate activity and a legal
right under the fair use doctrine of 17 U.S.C. § 107. Moreover,
where a teacher or librarian or other employee of a non-profit
institution infringes a copyright with a good faith belief that
the copying was a fair use, the Copyright Act requires courts to
remit statutory damages if there is an infringement action.


Issued this 14th day of February, 1996.
                    


                                   Michael J. Bowers         
                                   Attorney General


Prepared by:
Michael E. Hobbs
Counsel to the Attorney General


and


L. Ray Patterson
Special Assistant Attorney General