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The Problem of Unrestricted Photocopying and the Doctrine of Fair Use

In this blog, the author has discussed the issue of disputes between the registered copyright owner of a work and the user of photocopied work of the same. The Doctrine of Fair Use has had certain limitations. Read on to know more.

The unauthorized reproduction by way of photocopying for educational purposes of limited number of copies of copyrighted works has come to present one of the major problems in the copyright law in general and more specifically to the fair use doctrine.[1] This problem has led to the creation of tensions between the copyright owners and its users.

Guidelines and Leading Case Laws

The Early fair-use guidelines failed to reflect and represent effective standards. However, it acted as a basis for the development of a new generation of interpretations. The earliest example of such a fair-use guideline was the Gentlemen's Agreement, 1935 which has been recognized as one of the most important landmark in the history of the fair use privilege and was a product of long deliberations that started back in the year 1929.[2] Kenneth Crews, calls this agreement as “one of the first attempts to interpret fair use for education” and noted that it “remained the only major copying standard for almost a quarter of a century.”[3]

The agreement identified cases of reproduction of copyrighted works that would be allowed under the law at that time to make single photographic copies of a part of a copyrighted work by various institutions like library, museum, etc. that were meant only to facilitate research. This agreement was cited by both the trial and appellate courts in Williams & Wilkins Co. v. United States.[4] In this case, the plaintiff Williams & Wilkins Co. was a major publisher of medical journals and books. Defendants National Institutes of Health and National Library of Medicine would, upon request, photocopy articles in medical journals published by plaintiff and distribute them to researchers. Defendants did not monitor the reason for the copy requests, and the requesting researcher could retain the copy permanently. Plaintiff sued for copyright infringement, and defendants raised the fair use defense. The issue was whether the defendants’ unauthorized photocopying of plaintiff’s articles for use by medical researchers constituted fair use. The commissioner held that the copying was beyond the scope of fair use; however, on appeal, the decision was reversed. In a review sought by the publisher before the US Supreme Court, the decision of the appellate panel was upheld that the copying in question was fair.

The best known of all fair-use guidelines emerged in 1976 after the enactment of the newly revised Copyright Act of 1976. It was for the first time that the law gave fair use a statutory recognition which allowed copies for teaching. These guidelines allowed single copies of short items, such as an article or book chapter, to be made by a teacher for research or class preparation or multiple copies for distribution which must be confined to single copy per student.

The fair-use guidelines shaped several judicial decisions; therefore, it is essential to discuss various judicial decisions. The first infringement litigation against photocopying for educational uses arose in the case of Association of American Publishers v. New York University.[5] In this case, the publishers brought copyright actions against two for-profit shops that were engaged in photocopying copyrighted materials for student use. The parties arrived at out of court settlement and the settlement included an agreement that the shops would adhere to the Classroom Guidelines as a limit on fair use.

The dispute again arose in the case of Basic Books Inc. v. Graphics Corporation,[6] where several prominent commercial publishers of textbooks and other books alleged that Kinko's had infringed their copyrights by making multiple copies of lengthy excerpts from the books and compiling them into ‘course packs’ or ‘anthologies’ sold to students at nearby colleges and universities. The court held that the guidelines of fair use would apply to copying by an instructor or an educational institution and not by a for-profit copy shop.

In Princeton University Press v. Michigan Document Services Inc,[7] a private copy shop created and sold course pack under circumstances similar to Kinko’s and the copy shop was also found to have acted outside the limits of fair use. The Court evaluated the facts of this case in respect of the four factors laid down in Section 107 of the Copyright Act and concluded that the use was not fair and also pointed out that the guidelines state the minimum and not the maximum standards of educational fair use and the guidelines are not the law.

In Brigade Publications Inc. v Vien,[8] the defendant was accused of reproducing or instructing students to reproduce literary works and sound recordings for use in a for-profit course taught by the defendant. The court held the action illegal as defendant's copying and use of the works was not restricted to one copy for her own use in teaching. Additionally, the undisputed evidence showed that the defendant's copying was not limited and spontaneous, but was extensive and methodical, and consisted of copying from the same author, time after time.

Photocopying of copyrighted material takes place everywhere in our society and if photocopying is left ungoverned and reproduction of copyrighted material takes place without the consent of publisher,[9] it will be detrimental to the interest of publishers. The fair dealing reform is in the air and the application of fair dealing pertaining to photocopy of copyrighted material is not settled despite decades of deliberation and litigation.[10]

Under the Indian Copyright Act, 1957, though there are various educational exceptions, but their scope is not yet clear because of very less judicial pronouncements on the same. Even the courts have time and again reiterated that Section 52 of the Act must receive a liberal interpretation and resort must be made to the principles to identify fair use.[11]


[1] Rosalind S. Kurz, “Addressing the reprographic revolution: Compensating Copyright Owners for mass infringement”, 15 University of Michigan Journal of Law Reform 261 (1982). [2] Peter B. Hirtle, “Research Libraries, and Fair Use: The Gentlemen's Agreement of 1935”, (Last visited February 10, 2019). [3] Kenneth Crews, Copyright, Fair Use, and The Challenge for Universities: Promoting the Progress of Higher Education 30-31(University of Chicago Press, Chicago, USA, 1993). [4] 487 F. 2d 1345 (1973). [5] 759 F Supp. 1234. [6] 758 F. Supp. 1522 (1991). [7] 99 F. 3d 1381 (1996). [8]789 F. 2d 342 [9] Shafter, Robert L. 'Photocopy industry and copyright: section 108 of the bill', The Journal of Law and Technology, Vol. 4, No. 35 (1975) [10] Stephen M. Mcjohn, 'Fair dealing and Privatization in Copyright', San Diego Law Review Vol.35 No. 61 (1998) [11] Academy of General Education, Manipal v. B. Manini Mallaya, AIR 2009 SC 1982

Submitted by,

Manpreet Singh,

4th Year, B.B.A.LL.B. (Hons.),

Christ (deemed) University, Bengaluru.

(Images used for representational purpose only)


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