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Association for Supervision and Curriculum Development: in Differentiation in Practice: A Resource Guide for Differentiating Curriculum, Grades 9-12, by Carol Ann Tomlinson and Cindy A. Strickland.

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Creative Commons: Featured Content of the Week, 8/23/03

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Use of the Work

"One may always use a work without permission; one may use a copyright only with permission or as a matter of fair use."

Source: University of Georgia, Office of Legal Affairs, Principles of Fair Use [http://www.usg.edu/admin/legal/copyright/#part1].

Fair Use

"Although the courts have considered and ruled upon the fair use doctrine over and over again, no real definition of the concept has ever emerged. Indeed, since the doctrine is an equitable rule of reason, no generally applicable definition is possible, and each case raising the question must be decided on its own facts. On the other hand, the courts have evolved a set of criteria which, though in no case definitive or determinative, provide some gauge for balancing the equities."

Source: House Report, Introductory Discussion on Section 107 (Title 17, Section 107, U.S.Code), as printed in U.S. Patent Office Circular 21, Reproduction of Copyrighted Works by Educators and Librarians [http://www.copyright.gov/circs/circ21.pdf].

Copying & Fair Use with respect to Scrolls

The information on this web page is provided on an "as-is" basis, without warranty of any kind. The author disclaims liability for damages resulting from its use. The author is not an attorney and does not provide legal services. Use of the information on this page does not create an attorney-client relationship.

"If I photocopy a copyrighted work to make a scroll, am I breaking the law?"

Scrolls and Fair Use

Background Information: scrolls | mapping | making
scrolls: http://www.textmapping.org/scrolls.html
mapping: http://www.textmapping.org/mapping.html
making scrolls: http://www.textmapping.org/making.html

Copying to Make Scrolls: In addition to what is clearly allowed, we believe that copying to make scrolls is a fair use as long as the following two conditions are met:

1. It is done to improve usability and/or accessibility. This transformative use clearly goes to use of the work. It also goes to the question of purpose and character for determining fair use of the copyright.
2. The copying does not result in duplication for distribution, except where that is already clearly allowed. This goes to the question of effect for determining fair use of the copyright.

Copying Entire Works: As long as both of the above conditions (see Copying to Make Scrolls, above) are met, we believe that copying entire copyrighted works constitutes use of the work and is allowed under fair use. While an objection can be made based upon amount and substantiality, we believe that the two conditions listed above are sufficient to overcome that objection.

Examples of copying which we think meet both of the above conditions include the following:

• A teacher makes a single copy of a unit from a textbook. She makes the copy from an original purchased volume of the textbook which her school has issued to her. She makes a scroll from the copies, and uses the scroll to teach a class.
• A teacher makes enough copies of a unit from a textbook so that she'll have one copy for each class she teaches. She makes the copies from an original purchased volume of the textbook which her school has issued to her.
• A teacher makes one copy for each student in her class of a unit from a textbook, so that each student will have his/her own scroll with which to work. She makes the copies from an original purchased volume of the textbook which her school has issued to her. The school has also issued each student in her class an original purchased volume of the textbook.
• In a variation of the case above, if the school has not issued enough textbooks to the class, and some students have to share, then the teacher only makes as many copies as there are textbooks, and those students who share textbooks must share the scrolls as well.
• A teacher makes one copy of a book. She makes the copy from an original purchased volume of the book which she has checked out from the school library. She makes a scroll of the book, and uses it to teach one student. When she returns the book to the school library, she discards the scroll.
• A teacher makes one copy of a book. She makes the copy from an original purchased volume of the book which she has checked out from the school library. She makes a scroll of the book, and uses it to teach a class. The entire class works with the one scroll. If a student is allowed to take the scroll home, he takes the book, too. When the teacher returns the book to the school library, she discards the scroll.
• In a variation of the case above, the teacher checks out from the school library several original purchased volumes of a book. She then makes one copy for each of the originals. When she returns the books to the school library, she discards the scrolls.

Background Information

Usability and Accessibility

Usability: The primary reason for using scrolls (as opposed to paged media such as books) is that, for some instructional and reading situtations, scrolls offer a higher level of usability. This transformative use of a copyrighted work (i.e., making copies to make a scroll, in order to make a copyrighted work more usable) goes directly to the question of use of the work. Scrolls are more usable because they enable the reader to see, at a glance, an entire text as an unbroken whole, and they enable teachers to model comprehension strategies more clearly, explicitly, and in greater detail than is possible when the most that can be seen of a text is whatever will fit on two facing pages or on a computer screen. The following links provide more information on these points:

• scrolls: http://www.textmapping.org/scrolls.html
• mapping: http://www.textmapping.org/mapping.html
• instructional benefits: http://www.textmapping.org/benefits.html
• faq sheet: http://www.textmapping.org/lessonFAQ.html

Accessibility: Paged media presents significant accessibility barriers for a great many learning disabled and struggling readers. This transformative use of a copyrighted work (i.e., making copies to make a scroll, in order to make a copyrighted work more accessible) goes directly to the question of use of the work. Scrolls are accessible to a wide range of learning abilities and learning styles. For more on the scrolls and accessibility, see:

• article on scrolls and LD readers: http://www.textmapping.org/middlebrookScrolls.10.02.03.html
• instructional benefits (especially benefits #6 and #7): http://www.textmapping.org/benefits.html
• learning styles entry on FAQ sheet: http://www.textmapping.org/lessonFAQ.html#learningStyles.

Criteria for Fair Use

Section 107 identifies four criteria for determining fair use:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes
   * Commercial purpose implies a use of the copyright; educational purpose, a use of the work.1
   * The more transformative the use, the more likely it will be accepted as a fair use.2
2. the nature of the copyrighted work
   * This requires a determination of whether the work is a creative work, a compilation, or a derivative work.1
   * The more creative and less purely factual the copyrighted work, the stronger its protection.2
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole
   * The greater the amount used, the more likely the use will be viewed as a use of the copyright.1 2
4. the effect of the use upon the market (past, present, or potential) for, or value of, the copyrighted work
   * The greater the market effect, the less the likelihood that the use will be fair.1
   * This is generally held to be the most important factor.2

Agreement on Guidelines
for Classroom Copying in Not-For-Profit Educational Institutions with respect to Books and Periodicals

Clearly Allowed: One source of guidance regarding the conditions under which copying is clearly allowed is the 1976 Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with respect to Books and Periodicals, the full text of which is printed on pp.7-8 of U.S. Patent Office Circular 21, Reproduction of Copyrighted Works by Educators and Librarians [http://www.copyright.gov/circs/circ21.pdf].

This agreement creates a legal safe-harbor for educators who follow its guidelines. Other than that, it has no legal force (it is part of the legislative record, but was not incorporated by Congress into the legal code). This is an important point because the agreement, which was crafted by a coalition of groups representing various interests within the publishing industry, presents a more limited view of fair use than suggested by the criteria in the legal code. In recognition of this, the agreement states that its guidelines are "...not intended to limit the types of copying permitted under the standards of fair use.... There may be instances in which copying which does not fall within the guidelines may nonetheless be permitted under the criteria of fair use."

For More Information

• The University of Georgia, Office of Legal Affairs, Principles of Fair Use [http://www.usg.edu/admin/legal/copyright/#part1]
• Chilling Effects, FAQ on Copyright and Fair Use [http://www.chillingeffects.org/fairuse/faq.cgi]
• U.S. Patent Office Circular 21, Reproduction of Copyrighted Works by Educators and Librarians [http://www.copyright.gov/circs/circ21.pdf]

Notes

The term "paged media" is used here to refer to books, magazines, newspapers, and electronic text, all of which break text into discrete pages or (in the case of the electronic text) screen-fulls or views. Scrolls, by comparison, display text as a continuous whole which is fully-visible in a single view.