“We’re just students!”
Reader S.H. is a member of one of the many groups that have formed since the publication of Mastering Genealogical Proof by Thomas W. Jones, Ph.D., CG, CGL, FASG, FUGA, FNGS. Just that string of initials after his name tells you (in case you’ve been living in a cave for the last many years) that Tom Jones is one of genealogy’s heavy hitters, and this book is a great new resources for really understanding the Genealogical Proof Standard and how to apply it in building our family histories.1
S.H.’s group and many of the others are studying the book, working through its lessons and then expanding their discussions to the resources that Tom cites in the book.
And that’s where they ran into trouble.
“There are many works cited in that book,” S.H. writes, including articles printed in the National Genealogical Society Quarterly, The American Genealogist, OnBoard and more. “You must belong to the organization that publishes those periodicals or pay a fee to obtain copies of them.” Other references are to chapters of books like Professional Genealogy, edited by Elizabeth Shown Mills, CG, CGL, FASG, FNGS, FUGA.2
Some group members own some of the issues of the journals and magazines in which the cited articles have appeared and have access to others, and some own the Professional Genealogy book. And some are taking the position that those who own these works should make copies of the cited materials for the whole group so they can work with them.
“After all,” the reasoning goes, “we’re all individuals — and we’re just students.”
S.H. isn’t so sure: “My position is that it is a violation of copyright laws if I provide photocopies of the articles… What does the law say? Is there a copyright infringement if I (or someone else) makes copies of these articles for everyone in the group to read and study?”
Oh boy does S.H. have good instincts. Because every single thing the group is talking about making copies of is protected by copyright, and making copies of all those materials for the group members, even to read and study, is not authorized by any section of the copyright law.
First off, let’s be very clear about what the copyright law says about copies. It says that the copyright owner has the exclusive right “to reproduce the copyrighted work in copies.”3
That’s where the analysis has to start, where the default setting in all our minds has to be. Not “I can make copies unless” but rather “only the copyright owner can make or authorize the making of copies unless…”
It doesn’t matter if we’re only making copies for personal use and not for resale, and it doesn’t matter if we’re students (or teachers). We still start with the idea that we can’t make copies… unless an exception applies.
And there isn’t any study group exception that allows for making copies of large numbers of copyrighted works. There isn’t even a general exception for educational use. In the House Judiciary Committee Report to the 1976 revision of the Copyright Act, the Commitee repeated the conclusion it had come to before: “The Committee also adheres to its earlier conclusion, that ‘a specific exemption freeing certain reproductions of copyrighted works for educational and scholarly purposes from copyright control is not justified.’”4
What the Judiciary Committee did generally go along with, and what it reprinted as part of its report, was an agreement by representatives of the Ad Hoc Committee of Educational Institutions and Organizations on Copyright Law Revision, and of the Authors League of America, Inc., and the Association of American Publishers, Inc. on on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with respect to books and periodicals.5 The idea was to clarify what would be fair use for teachers.
Now it isn’t a sure bet that these guidelines would be considered applicable to a study group like the one S.H. belongs to, but they do offer some real guidance — and, in The Legal Genealogist‘s view, some real cautions. Because if it wouldn’t be considered fair play for a teacher in a non-profit educational institution, I’d be very leery of considering it fair play in any other educational setting.
The key elements of that agreement are that a teacher can provide students with one copy each of an item for classroom use or discussion, if and only if:
• The copying is of a brief element, and the relevant definition for the study group’s purposes is “a complete article, story or essay of less than 2,500 words.”6
• The idea for the copying came from the teacher and it came up at a time when “it would be unreasonable to expect a timely reply to a request for permission.”7
• “Not more than one … article, … essay or two excerpts may be copied from the same author, nor more than three from the same collective work or periodical volume during one class term” and “not be more than nine instances of such multiple copying for one course during one class term.”8
• “Copying shall not: (a) substitute for the purchase of books, publishers’ reprints or periodicals.”9
How does the study group’s proposed use stack up? Well, most journal articles are more than 2,500 words. The study group is self-directed and so it can’t really argue it doesn’t have time to get permission. The group seems to be suggesting it could copy lots of articles. And there are publishers’ reprints available of most of the items the members want to copy.
I’d have to rate the proposed copying as a total fail under the guidelines.
Back to square one for the group: members need to buy their own copies of the works they want to study… or get permission.
- The book is Thomas W. Jones, Mastering Genealogical Proof (Arlington, Va. : National Genealogical Society, 2013), available from the National Genealogical Society. ↩
- Elizabeth Shown Mills, ed., Professional Genealogy: A Manual for Researchers, Writers, Editors, Lecturers and Librarians (Baltimore, Md. : Genealogical Publishing Co., 2001). ↩
- “Exclusive rights in copyrighted works,” 17 U.S.C. §106. ↩
- “Copyright Law Revision,” Report of the House Judiciary Committee, House Report No. 94-1476 (1976), set out in the Historical and Revision Notes to 17 U.S.C. §107, Office of the Law Revision Counsel, U.S. House of Representatives (http://uscode.house.gov : accessed 4 Sep 2013). See also U.S. Copyright Office, Circular 21: Reproduction of Copyrighted Works by Educators and Librarians, PDF version at p. 5 (http://www.copyright.gov : accessed 4 Sep 2013). ↩
- Ibid., Circular 21 at 6-7. ↩
- Ibid. at 6. ↩
- Ibid. at 7. ↩
- Ibid. ↩
- Ibid. ↩