Case studies

A history book published in 1977 consists of twelve chapters totalling 50 pages. The author died in 2015 so the work will remain under copyright until 2065. The publisher, a local historical society, went out of existence in 1978 and no copies are for sale except occasionally on Abebooks. The Library’s sole copy is in a special collection and is in fragile condition. A distance student is writing a research essay on the topic of the book. Is it reasonable to provide a photocopy of the whole work?

Here’s a fair dealing analysis using the section 43 criteria:

(a) Purpose of the copying: Research.

(b) Nature of the work copied: It is published and non-fiction.

(c) Could the work have been obtained within a reasonable time at an ordinary commercial price? No, the work is out of print.

(d) There is no effect of the copying on the potential market for, or value of, the work. The specialised nature of the work means the book has a limited potential market and is unlikely to be republished. It is also unlikely to have a secondary market in licensing.

(e) How much of the book is to be copied? Weighing all the factors above and the nature of the research the student is undertaking (they need information on the whole historical period covered by the book) there is no way to select only a part of it without compromising the purpose of the copying. Using these criteria, it would be unreasonable not to supply the student with the whole book and no good purpose would be served by limiting the amount of copying.

Communication for business 6th ed (2016) is the textbook for a large first year course. Copies are on sale to both on-campus and distance students from the University book shop for $115, or around $90 second hand. It is 686 pages long. Each week students are required to read two chapters from the text. A distance student requests a copy of two chapters, amounting to 52 pages or 8% of the total. Is it reasonable to provide a scan or photocopy of this amount? Here’s a fair dealing analysis using the section 43 criteria:

(a) Purpose of the copying: Study.

(b) Nature of the work copied: It’s the textbook.

(c) Could it have been obtained within a reasonable time at an ordinary commercial price? It could – regardless of what the student thinks of it, this is the ordinary commercial price for a textbook.

(d) Effect of the copying on the potential market for, or value of, the work: If the student was able to obtain all or most of the required reading in this way they could avoid buying the book.

(e) Amount and substantiality of the part copied taken in relation to the whole work: Although the amount requested in this instance is only 8%, if the student continues to request chapters it will soon become an unreasonable amount.

It would be reasonable to supply 8% of this book but there is a risk that the student will continue to request the required readings as an alternative to purchasing the text. If it is possible to monitor repeat requests from students this should be done and only a single request for copying from the same work accepted. Nominally this could be a single chapter although there is no standard measure or even definition of a chapter and a chapter could be unreasonably large or small as a proportion of the whole work.

However, take the case of a lecturer who recommends a couple of chapters of the book to a postgraduate student who need help with writing – Chapter 21 (Writing Long Reports) and Chapter 22 (Writing for the Web). Together they add up to 53 pages. The student is studying at a distance and requests the Library to supply a copy of the chapters. It would seem reasonable in this case to supply two chapters. The student would be unlikely to purchase the book and if they did come to the Library and copy the chapters themself, the proportion of the work copied would fall within the fair dealing provisions of section 43. If the Library subsequently noticed requests from the same student for further copying from the same book these could be denied.

An edited history book has separately-authored chapters. A student requests a copy of one of the 20 chapters in order to write an essay on the topic. Is it reasonable to provide a scan or photocopy of the chapter? Here’s a fair dealing analysis using the section 43 criteria:

(a) Purpose of the copying: Study and research.

(b) Nature of the work copied: It’s a work of history highly relevant to the student’s topic.

(c) Could the work have been obtained within a reasonable time at an ordinary commercial price? It’s available from Amazon for $18.21 but has to come from the US and won’t meet the essay deadline.

(d) Effect of the copying on the potential market for, or value of, the work: The student is unlikely to buy the book and information on the topic could be found elsewhere.

(e) Amount and substantiality of the part copied taken in relation to the whole work: The request is for one of the 20 chapters in the book.

It would be reasonable to supply the student with the chapter.

Case studies adapted from work by Bruce White of Massey University