Basic Books, Inc. V Kinko’s Graphics Corp

1. Agreement on Guidelines for Classroom
Copying in Not-for-profit Educational
Institutions
with respect to books and periodicals
Mr. Zeyar Nyunt Oo
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2. Outline
 Purpose of Guidelines
 Nature of Guidelines
 Single Copying for Teachers
 Multiple Copies for Classroom Use
 Basic Books, Inc. V Kinko’s Graphics Corp
 Conclusion
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3. Purpose
 To state the minimum standards of educational fair
use under section 107 of Copyright Act;
 To make the conditions determining the extent of
permissible copying for educational purposes may
change in the future;
 To certain types of copying permitted under guidelines
for classroom copying in not-for-profit educational
institutions may not be permissible in the future;
 To make conversely that in the future other types of
copying not permitted under these guidelines may be
permissible under revised guidelines;
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4. Nature of Guidelines
 The statement of guidelines is not intended to limit
the types of copying permitted under the standards
of fair use under judicial decision and which are
stated in Section 107 of the Copyright Revision Bill.
 There may be instances in which copying which
does not fall within the guidelines stated below may
nonetheless be permitted under the criteria of fair
use.
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5. Single Copying for Teachers
A single copy may be made of any of the
following by or for a teacher at his or her individual
request for his or her scholarly research or use in
teaching or preparation to teach a class:
A. A chapter from a book;
B. An article from a periodical or newspaper;
C. A short story, short essay or short poem, whether
or not from a collective work;
D. A chart, graph, diagram, drawing, cartoon or
picture from a book, periodical, or newspaper;
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6. 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:
A. The copying meets the tests of brevity and
spontaneity as defined below;
B. Meets the cumulative effect test as defined below
C. Each copy includes a notice of copyright.
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7. Multiple Copies for Classroom Use
Definitions
Brevity
i. Poetry : (a) a complete poem ( if < 250 words/ not
more than two pages or (b) from longer poem an
excerpt of not more than 250 words
ii. Prose : (a) either a complete article, story of essay (<
2500 words), an excerpt from any pros work of not
more than 1000 words of 10% of the work (but in
any event a minimum of 500 words
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8. Multiple Copies for Classroom Use
Definitions
Brevity
iii. Illustration: One chart, grapy, diagram, drawing,
cartoon or picture per book or per periodical issue.
iv. “Special” works: Certain works intended for children
and at other times for a more general audience fall
short of 2500 words (not more than two of the
published pages and 10 % of the words)
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9. Multiple Copies for Classroom Use
Definitions
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.
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10. Multiple Copies for Classroom Use
Definitions
Cumulative
Cumulative effect proscribes any more than ‘nine
instances of multiple copying for one course during one
class term,’ limits the copied material to one course only,
and to no more than one piece of work per author.
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11. Basic Books, Inc. V Kinko’s Graphics Corp
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12. Basic Books, Inc. V Kinko’s Graphics Corp
Key facts
Defendant Kinko’s Graphics Corp, a computerized
duplication service, obtained course reading lists from
college professors and, without permission or paying
licensing fees, photocopied excerpts from the assigned
reading materials. Kinko’s assembled the photocopied
material into low-cost ‘course packets’ to sell to students
for a profit. Plaintiffs were a group of publishers who
owned copyrights for some of the publications Kinko’s
used in its course packets. Kinko’s claimed that
duplicating copyrighted materials for course packets was
fair use.
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13. Basic Books, Inc. V Kinko’s Graphics Corp
Issue
Whether it was fair use for Kinko’s to photocopy
publishers’ copyrighted works without permission or
payment for the purpose of selling course packets to
students for profit.
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14. Basic Books, Inc. V Kinko’s Graphics
Corp
1. Purpose and nature of Fair Use
The supreme court has held that ‘ commercial use of
copyrighted material is presumptively an unfair
exploitation of the monopoly privilege that belongs
to the owner of the copyright.’
2. The Nature of the Copyright Work
The court hold that ‘the scope of fair use is greater
with respect to factual than non-factual works.’
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15. Basic Books, Inc. V Kinko’s Graphics Corp
3. The amount and substantiality of the portion used
The passages copied ranged from 14 to 110 pages,
representing 5.2% to 25% of the works. In one case
Kinko’s copied 110 pages of someone’s work and sold it
to 132 students. In almost every case, Kinko copied an
entire chapter of a plaintiff’s book. Even for an out of
print book, this amount is grossly out of line with
accepted fair use principles.
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16. Basic Books, Inc. V Kinko’s Graphics Corp
4 The effect of the use on potential markets for or
value of the copyrighted work
Kinko’s confirms that it has 200 stores nationwide,
servicing hundreds of colleges and universities which
enroll thousands of students.
This court has found that plaintiff derive a
significant part of their income from textbook sales.
Kinko’s copying unfavorably impacts upon plaintiffs’
sales of their books and collection permission fees.
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17. Basic Books, Inc. V Kinko’s Graphics Corp
Multiple copies for classroom use
The guidelines provide that a teacher may make
multiple copies of copyrighted material if the copying
meets the tests of brevity, spontaneity, and cumulative
effect and so long as each copy includes a notice of
copyright. It has already been found that Kinko’s failed
to include copyright notices on any of the works in suit.
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18. Basic Books, Inc. V Kinko’s Graphics Corp
Brevity
Kinko does not meet brevity requirement (a complete
article, story of essay (< 2500 words), an excerpt from any
pros work of not more than 1000 words of 10% of the work )
Spontaneity
Court found that the copying in suit cannot be
considered spontaneous. The anthologies were created to
last the full semester or at least for several weeks, since they
averaged 200 to 400 pages per course packet.
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19. Basic Books, Inc. V Kinko’s Graphics Corp
Cumulative
Defendants fail cumulative requirement. His packets
containing above nine instances of multiple copying
Agency
Kinko claims it acted as the agent of the educational
institutions. But Plaintiff assert that Kinko’s has not shown
that the professors exerted a sufficient level of control over
relationship, court agree with plaintiff. Even if Kinko’s could
show an agency relationship, it has not shown that its
behavior was the kind anticipated by Congress and excused
under the law.
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20. Conclusion
The following points are consideration of fair use
classroom copying;
1. Copying must be used for nonprofit.
2. Copying should not be substitute for purchase
original book.
3. Copying must comply with Guideline minimum.
4. Every copy must include notice of copyright.
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