Unreferenced Notes from an Instructor

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  • I've received the following request from an instructor:

    "I have read a great book and taken notes on each chapter. I have typed them up and am wondering if I could give them to the students. They do NOT include references and quotations because I state at the beginning that they are all the author's words and voice and none of it can be attributed to me in any way, whatsoever. It is a summary of each chapter. Let me know if you think I should NOT let the students have a copy of the summary. I don't want to get into trouble and more important, I don't want to encourage plagiarism in any form. If by giving them a copy of my notes from the book, they begin to think they don't have to use footnotes or that it is ok to use someone else's voice, I would feel tremendous regret."

    My instinct is that she is within fair use in distributing these notes to her students. I plan on referring her the following checklist:


    Any thoughts / opinions on the matter? I suppose I'm just looking for some reinforcement before I respond to her -- or to hear if I'm off-base! Thanks in advance!

    Meghann Matwichuk
    Assistant Librarian, Instructional Media
    University of Delaware
  • This has nothing to do with plagiarism. The teacher is clearly attributing the work to another person.

    This situation does involve fair use. There is no way to be absolutely certain that the use if fair unless the teacher is sued and a judge makes a determination.

    The checklist is a good tool to use.

    Here's my take:

    1. Character of use. Clearly educational. This factor clearly works in favor of the teacher.

    2. Nature of work. Creative or factual? You didn't tell me, so I don't know. It sounds like a work of nonfiction.

    I believe that previous fair use determinations by the courts indicate that fiction is creative and nonfiction is factual. Personally, I disagree; I distinguish between creative nonfiction (history, biography) and non-creative nonfiction (statistics, census records).

    If the work is fiction, this factor works against the teacher. If the work is what I call creative nonfiction, I think you should assume that this factor works against the teacher. If the work is what I call non-creative nonfiction, this factor clearly works in the teacher's favor.

    3. How much? I think this factor works against the teacher regardless of how much of the original text has been used. This kind of summary (I prefer the term condensed or abridged or digest version) is intended to include everything that is important and omit everything that is not. This kind of summary uses what the checklist calls "the heart of the work." In this case, it might be more appropriate to say that the summary contains the circulatory system and omits the muscular system.

    4. Market value. This is the critical factor. I think you are on the edge. Here are the competing arguments.

    You are reducing the market value by giving the students an acceptable alternative. This argument is more compelling if the summary is long or required reading.

    You are increasing the market value by alerting the students to a book and whetting their appetite. This argument becomes less compelling if the summary is long or required reading. This argument becomes more compelling if the teacher doesn't give out handouts for every chapter. This argument becomes more compelling if the teacher verbally recommends that students buy the book. This argument becomes even more compelling if the syllabus lists the summary as recommended reading, states that the summary is no substitute for the original, and recommends that students purchase the book.

    Your use has no effect on the market. Students do not have a lot of money and won't spend what they do have on recommended reading. This argument is more compelling if you have data to back it up.

    The teacher needs to think about what she would do if she knew that passing out the summary is illegal. Would she recommend the book? Would she require it? Would she not mention the book at all?

    My gut feeling: you are on the edge, probably the wrong side. I think you can take what I've said and change the situation so that you are on the right side, but I don't think you can move very far from the edge.

    However, if the teacher truly believes that the use is fair, and that belief is reasonably based on an analysis of the four factors, the teacher does not need to be worried about being close to the edge. Legally, there is no difference between uses which are just barely fair and uses which are clearly fair. And although only a judge can make a legally binding determination, the law protects teachers who take reasonable risks.

    According to 17 U.S.C.A. ยง 504,
    "The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment"

    If you'd like me to discuss any of these points in further detaiil, just let me know.
  • Many thanks to you for lending your perspective to this query. Your response was very helpful. The book in question is _The United States of Europe: The New Superpower and the End of American Supremacy_ by T.R. Reid, 2004 and is still in print. I did review the notes, and, although I haven't seen the book, it did appear from her disclaimer that the structure and even some of the wording was very close to what was in the book. She decided not to photocopy and distribute the notes (she felt she had "used too much of the book and too much of his voice"), but discussed them in class instead. One thing that occured to me as I was reviewing her notes was that, contrary to the negative effect on the the market provision, reading the notes made me want to read / purchase the book, and that they would likely have the same effect on her students. As you noted, it works both ways!

    Meghann Matwichuk
    Assistant Librarian, Instructional Media
    University of Delaware
  • I believe if the work is a summary, it does involve plagiarism and not copyright infringement. The words themselves are copyrighted, the ideas are not copyrighted. The summary is not a substitute for the book. The "heart of the work" evaluation still requires that some form of expression- not ideas or facts- be explicitly copied.

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