Photocopying and Copyright Law


The Copyright Act gives the owner of copyrighted material the right to control its duplication and distribution and prohibits photocopying unless the copying falls within one of the limited exceptions provided for in the Act. For most businesses and individuals, the fair-use doctrine is the only exception that will allow them to photocopy copyrighted materials without the owner's permission.

Fair Use

In deciding whether copying without permission is legal under the fair-use doctrine, courts look at four factors. First, if the purpose and the character of the copying relate to endeavors such as criticism, comment, news reporting, teaching, scholarship, and research, fair use is more likely to be found. Second, the nature of the material to be copied is significant. For example, material meant to be consumed when used, such as workbooks or test answer forms, is less likely to fall under fair-use copying than a page from a newspaper or magazine article. The third factor is the amount and substantiality of the portion of the work that is copied. The sheer volume of copying is not the only consideration, as a single page from a newsletter can be as "substantial" as a whole chapter from a large book. In general, the more importance the copied portion has to the content of the whole document the less likely it is that fair use applies.

The final, and often decisive, factor is the effect of the photocopying on the potential value of the copyrighted work. This relates in part to a dollars and cents consideration of whether the market for the material is adversely affected.

For example, copying and distributing a publication to employees in a company to save the cost of multiple subscriptions may seem harmless, but each saved subscription deprives the copyright owner of income as surely as selling photocopies of the publication on a street corner. The unauthorized use of material can also damage its value in a manner that is harder to quantify, such as copying portions of a book without attribution, which deprives the copyright owner of the credit and publicity he or she otherwise would receive.

Damages

The Copyright Act allows a copyright owner to sue for actual damages caused by an infringement and for any profits that are attributable to the infringement. Since it can be difficult to calculate actual damages, Congress provided an alternative--the recovery of statutory damages in an amount determined by a court within a range set forth in the Act. Because the statutory damages are imposed for each work infringed, substantial damages awards are possible. The owner also can recover for the costs of bringing suit and for attorney's fees.

It may be too much to expect that a person poised at the copying machine will run through the four-part, fair-use test before pushing the "copy" button. If the material to be copied has the copyright symbol on it, however, would-be copiers should at least consider whether they would object to the photocopying if they had written or drawn the material. If the answer is "yes," the copying is almost certain to be a copyright infringement. Even if the answer is "no," the person could still be committing copyright infringement.