Page:The librarian's copyright companion, by James S. Heller, Paul Hellyer, Benjamin J. Keele, 2012.djvu/72

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The Librarian’s Copyright Companion

possible later use (archiving) such that the effect is to multiply the number of subscriptions without actually subscribing to the needed number of copies; and (5) if there is an easy way to pay royalties, such as through the CCC—then the copying is not a fair use. If you do not have this same factual situation, you should examine your facts under the fair use test. Texaco did not eliminate fair use in the commercial sector. Now let’s see how Texaco might play out in the non-profit educational sector.

Fair Use in the Educational Sector

In its decision in Texaco, the court of appeals wrote:

We do not deal with the question of copying by an individual, for personal use in research or otherwise (not for resale), recognizing that under the fair use doctrine or the de minimis doctrine, such a practice by an individual might well not constitute an infringement. In other words, our opinion does not decide the case that would arise if Chickering were a professor or an independent scientist engaged in copying and creating files for independent research, as opposed to being employed by an institution in the pursuit of his research on the institution’s behalf.[1]

Does a professor act independently of her university when she writes a book or an article? Our answer is yes. Unless the professor was hired by the university to create a particular work under circumstances that would make it a “work made for hire,” or unless the university otherwise owns or shares copyright with the professor in the work (which, under university policies, is more likely when a professor or researcher uses significant university funding and other resources), we think that a professor does act independently of the university when she writes a book or an article.[2] And as the court in Texaco wrote, its opinion did not address that issue.


  1. Id. at 916.
  2. “Works made for hire” are owned by the employer. If the creator is an independent contractor, the work is considered a “work made for hire” if it comes within one of nine categories listed in section 101 of the Act and if there is also a written agreement specifying that the work is a “work made for hire.” If the work was prepared by an employee, whether it is a work made for hire depends on (1) control by the employer over the work, such as whether the work was prepared at the employer’s location, whether the employer determined how the work was done, and whether the employer provided equipment or other means that supported the creation of the work; (2) control by the employer over the employee; and (3) the status and conduct of the employer, such as the employer being in the business of producing these kinds of works. See U.S. Copyright Office, Circular 9: Works Made for Hire Under