A Trainer's Guide to Copyright, Pt2

Up to now...

Last month in A Trainer's Guide to Copyright - Pt. 1 (web link below), we looked at guiding principles for a trainer's use of copyrighted materials under the "fair use" exception.

This month we'll address:

Whether government agencies have any special rights to use copyrighted material and
How courts have applied the fair use doctrine in situations law enforcement trainers might find themselves in.

But first...

DISLAIMER: The opinions expressed in this article are NOT intended nor should they be taken as legal advice. They are for discussion purposes only. Consult a qualified attorney for specific questions. (How's that for lawyer speak?)

Use of copyrighted material by a government agency.

Last month we learned that whether or not a trainer's use of copyrighted material falls within the "fair use" exception depends on a balancing of four factors:

The purpose of the use;
The nature of the work used;
The amount used, and;
The effect of the use on the market for the original.

Under the first of these factors, nonprofit educational uses are favored over commercial uses. However, a law enforcement agency is neither a nonprofit educational institution nor a business. It's part of government.

The U.S. Department of Justice, Office of Legal Counsel, has stated in an opinion (web link below), that "while government reproduction of copyrighted material for governmental use would in many contexts be non-infringing because it would be a 'fair use' under 17 USC § 107, there is no 'per se' rule under which such government reproduction of copyrighted material invariably qualifies as a fair use." (Emphasis added.)

Moreover, Congress expressly provided that a work protected by the Copyright Laws can be infringed by the United States government (28 USC § 1498(b)). The same would hold true for state and local government.

In one of the rare reported cases that addressed governmental photocopying and found it fair use, the Supreme Court in Williams & Wilkins Co. v. United States, 420 U.S. 376 (1975), noted, amongst other things:

The photocopying was a limited portion of a larger work;
The copies were not sold;
Such photocopying had long been accepted across the nation;
The plaintiff was unable to show economic detriment;
Medical science would be seriously hurt by a finding of infringement; and
The law in many foreign countries was that such practice was not infringing.

The Court's consideration of the detriment to medical science seems rooted in copyright's very purpose, '(t)o promote the Progress of Science and useful Arts.' Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994). Thus, use of copyrighted materials in training related to the sciences involved in law enforcement may be viewed more favorably than other training topics.

More court cases. (Web links to full opinions below.)

What if I want to include copies of parts of published books or magazine or journal articles in my handouts or training materials?

In Princeton University Press v. Michigan Document Services, Inc., 99 F. 3d 1381 (6th Cir. 1996), a private copy shop photocopied parts of published books that University professors had selected for their classes. The print shop then sold them as "coursepacks" to university students.

In finding copyright infringement, the court placed the most emphasis on the fourth factor - the effect on the market. Licensing or potential licensing opportunities existed for all of the copied material, which weighed heavily against fair use. The court additionally noted that more than 5% of each book was copied.

Likewise, in Basic Books, Inc. v. Kinko's Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991) - another "coursepacks" case finding infringement, the court noted that copying from 5% to 25% of the original book was excessive.

In both the above cases, the courts did not address the question of whether "coursepack" production by a university or nonprofit copy shop (or governmental agency) might be fair use. Under fair use factors, a court would be more sympathetic to the production of "coursepacks" by a law enforcement agency for a purely educational purpose and for which no money was charged. This factor would likely not weigh in favor of fair use if the copying was for a law enforcement training conducted by a for-profit, commercial enterprise.

As noted, the amount of the total original work copied is a factor. Courts favor editing and using only the amount necessary for the educational purpose.

Even if the copied excerpts are lengthy, courts tend to rely more on what percentage they constitute of the entire work. In Maxtone-Graham v. Burtchaell, 803 F. 2d 1253 (2d Cir. 1986) the court found fair use by a defendant who copied long excerpts from the plaintiff's book into his own book after the plaintiff refused him permission. Acknowledging the lengthiness of the excerpts, the court nonetheless resolved that quoting 4.3% of the plaintiff's work was not excessive.

The Maxtone court also noted that while the defendant's book was published by a commercial press with the possibility of commercial success, its main purpose was to educate the public and there was no significant threat to the plaintiff's market because her book was out-of-print and not likely to appeal to the same readers.

May I tape a television program and use it later in training?

In Encyclopedia Britannica Educational Corp. v. Crooks, 542 F. Supp. 1156 (W.D.N.Y. 1982), commercial producers of educational motion pictures and videos sued a consortium of public school districts, which systematically recorded programs as they were broadcast on public television stations and provided copies of the recordings to member schools.

While the court was sympathetic to the educational purpose, the copying directly competed with the plaintiff's market to sell or license copies of the programs to the public schools. Moreover, the court noted that defendants were copying entire programs and retaining them for as long as ten years.

Whether a law enforcement trainer could copy and use a program aired on television for training purposes would depend on:

Whether the trainer was with a governmental agency (weighs in favor of fair use) or a for-profit trainer;
Whether the program was factual (less protected) or creative (more protected);
How much of a discreet program the trainer copied and used;
Whether the copying and use competed with or detracted from for a commercial market for the work. E.g., Could the trainer have purchased a copy or license agreement? How likely would the trainees have been to otherwise purchase the original work?
Was the trainer's use "transformative?" Did she use it in a way other than how the originator intended it to be used? For example, to demonstrate "how NOT to do something," as just one of several schools of thought for which the pros and cons are being taught, as a controversial or criticized technique, etc.

What if I want to post other's work on a web site?

In Los Angeles Times v. Free Republic, 54 U.S.P.Q2d 1453 (C.D. Cal. 2000), a bulletin board website allowed members to post entire newspaper articles to generate awareness and discussion. Anyone could access the site.

Defendant was a for-profit corporation but was seeking nonprofit tax status and did not charge for materials on its website.

The court ruled this was not fair use. While the articles were factual versus creative - favoring fair use, the entire articles were used and they were provided to the public - the same market the newspapers were seeking to draw to their websites.

A law enforcement training bulletin board or website that wishes to post newspaper, magazine or journal articles, videos, photos, etc. should consider the following:

Limiting the amount copied to the amount needed. Efforts to edit or cut portions of a work may help with finding fair use.
Limiting dissemination to a members' only segment that is an unlikely market for the original, complete work.
Making the use of the copied information "transformative,"
Posting a link to the original work if it is available online avoids a copyright infringement issue, assuming the linked site isn't infringing.

One last commandment.

Even if your use of copyrighted information falls within the fair use exception discussed last month, you must still give credit to the originator. Failure to do so is unethical. It's also plagiarism. (Web link below)