"Cumulative Effect" test for classroom copying

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  • The guidelines on classroom reproduction in the 1976 report of the House of Representatives Judiciary Committee on the House amendments to the bill that became the Copyright Act of 1976 (H.R. Rep. No. 94-1476, 94th Cong., 2d Sess., September 3,1976. reproduced in USCO Circular 21, pp. 7-8 ) provide three tests for permissible reproduction of copies for classroom use: a) brevity, b) spontaneity, and c) cumulative effect. The third prong of the "cumulative effect" test is: "(iii) There shall not be more than nine instances of such multiple copying for one course during one class term." The referent for "such multiple copying" is ambiguous -- does this mean "copying of nine works" or "copying of (an unspecified number) of works on nine separate occasions" during the class term, or is there yet another possible interpretation? Does anyone know of any authoritative interpretations of this provision?
  • Remember that "multiple copies for classroom use" is an exemplar of fair use. It is even mentioned in Section 107. So my guess is that the report on guidelines refers to nine different times in one semester that a teacher may make mulitple copies for classroom use.

    But I should look at this statement - I am not familiar with it. What is interesting to me is that this is a fairly generous amount of spontaneous multiple copying. Since 1976, I would argue that most librarians and teachers interpret fair use in a more limited way - that is, I think most librarians would say nine times was too much/not fair. We have become more conservative.

    I would probably do a real fair use analysis to make the determination and not follow the guidelines at all.
  • The "nine instances" quote comes from the infamous Classroom Guidelines, which are embedded in the Congressional Record but are not a part of the law. These guidelines have generally been seen as too restrictive for Higher Ed, and indeed were never agreed to by the American Association of University Professors (among others). Even the Register of Copyrights at the time the 1976 law was enacted expressed the opinion that these guidelines were more suitable for secondary schools than Higher Ed. While the "nine instances" sounds reasonable on the surface, if one accepts this language then presumably one must accept the language surrounding it in the guidelines, and this is less palatable. The limits to only one course per school, number of works per author, the prohibition on repeating the process for a subsequent term, as well as the definitions of brevity and spontaneity are all troubling. I agree with Carrie that one should avoid the guidelines altogether and make one's own judgment based on Section 107, Fair Use. The relevant section of the Classroom Guidelines is copied below. Brice oII. Multiple Copies for Classroom Use Multiple copies (not to exceed in any event more than one copy per pupil in a course) may be made by or for the teacher giving the course for classroom use or discussion; provided that: • A. The copying meets the tests of brevity and spontaneity as defined below; and, • B. Meets the cumulative effect test as defined below; and, • C. Each copy includes a notice of copyright o Definitions o Brevity  (i) Poetry: (a) A complete poem if less than 250 words and if printed on not more than two pages or, (b) from a longer poem, an excerpt of not more than 250 words.  (ii) Prose: (a) Either a complete article, story or essay of less than 2,500 words, or (b) an excerpt from any prose work of not more than 1,000 words or 10% of the work, whichever is less, but in any event a minimum of 500 words. [Each of the numerical limits stated in "i" and "ii" above may be expanded to permit the completion of an unfinished line of a poem or of an unfinished prose paragraph.]  (iii) Illustration: One chart, graph, diagram, drawing, cartoon or picture per book or per periodical issue.  (iv) "Special" works: Certain works in poetry, prose or in "poetic prose" which often combine language with illustrations and which are intended sometimes for children and at other times for a more general audience fall short of 2,500 works in their entirety. Paragraph "ii" above notwithstanding such "special works" may not be reproduced in their entirety; however, an excerpt comprising not more than two of the published pages of such special work and containing not more than 10% of the works found in the text thereof, may be reproduced. o Spontaneity  (i) The copying is at the instance and inspiration of the individual teacher.  (ii) The inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission. o Cumulative Effect  (i) The copying of the material is for only one course in the school in which the copies are made.  (ii) Not more than one short poem, article, story, essay or two excerpts may be copies from the same author, nor more than three from the sane collective work or periodical volume during one class term.  (iii) There shall not be more than nine instances of such multiple copying for one course during one class term. [The limitations stated in "ii" and "iii" above shall not apply to current news periodicals and newspapers and current news sections of other periodicals.] III. Prohibitions as to I and II Above Notwithstanding any of the above, the following shall be prohibited: • A. Copying shall not be used to create or to replace or substitute for anthologies, compilations or collective works. Such replacement or substitution may occur whether copies of various works or excerpts therefrom are accumulated or reproduced and used separately. • B. There shall be no copying of or from works intended to be "consumable" in the course of study or of teaching. These include workbooks, exercises, standardized tests and test booklets and answer sheets and like consumable material. • C. Copying shall not: o (a) substitute for the purchase of books, publishers' reprints or periodicals; o (b) be directed by higher authority; o (c) be repeated with respect to the same item by the same teacher from term to term. • D. No charge shall be made to the student beyond the actual cost of the photocopying.

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