A. Academic Coursepacks

An academic coursepack is a collection of materials (usually photocopied) used in the classroom, distributed either in book format or as class handouts. Coursepacks are commonly offered for sale in campus bookstores, although professors may arrange to sell them in class. Most publishers grant "clearances" for coursepacks--that is, for a fee, publishers give permission for their books or articles to be copied and distributed in educational contexts. Such clearances normally last for one semester or for one school term. After that, the instructor must seek clearance again. In addition to these paper coursepacks, some companies now assist in the assembly of electronic coursepacks used in distance learning and electronic teaching programs.

1. Coursepacks and Copyright

Until 1991, many instructors and photocopy shops assembled and sold coursepacks without permission and without compensating the authors or publishers. This was based on the assumption that educational copying qualified as a "fair use" under copyright law, which, legally speaking, is a particular kind of use that is exempt from the permissions requirements that normally apply to copyrighted materials. However, in 1991 a federal court ruled that a publisher's copyright was infringed when a Kinko's copy shop reprinted portions of a book in an academic coursepack. (Basic Books Inc. v. Kinko's Graphics Corp., 758 F.Supp. 1522 (S.D. N.Y. 1991).) The court said that reprinting copyrighted materials in academic coursepacks was not a fair use and that permission was required.

The owner of a copy shop in Ann Arbor, Michigan, began a personal crusade to prove that the Kinko's case was wrongly decided by advertising that he would copy course materials for students and professors. As a result, he was sued by several book publishers. A federal Court of Appeals decided against the copy shop owner, ruling that the copying did not qualify as a fair use. This ruling was based on the amount and substantiality of the portions taken and because academic publishers were financially harmed --they lost licensing revenues--while the copy shop was making money on the coursepacks. (Princeton Univ. v. Michigan Document Servs., 99 F.3d 1381 (6th Cir. 1996).)

This and similar court rulings establish the rule that you need to obtain permission before reproducing copyrighted materials for an academic coursepack. Many campus copy shops still perform coursepack assembly. However, these copy shops have either affiliated with established clearance services or are prepared to obtain clearance on behalf of instructors.

2. Obtaining Clearance for Coursepacks

It's the instructor's obligation to obtain clearance for materials used in class. Instructors typically delegate this task to one of the following:

• Clearance services. These services are the easiest method of clearance and assembly.
• University bookstores or copy shops. University policies may require that the instructor delegate the task to the campus bookstore, copy shop or to a special division of the university that specializes in clearances. Or,
• Department administration (generally, the instructor's secretary). In Section A4, we offer some suggestions for these kinds of administrators on how to assemble a courespack without a clearance service.

3. Using a Clearance Service

It can be time-consuming to seek and obtain permission for 20 to 30 or more articles used in a coursepack. Fortunately, private clearance services will, for a fee, acquire permission and assemble coursepacks on your behalf. After the coursepacks are created and sold, the clearance service collects royalties and distributes the payments to the rights holders. Educational institutions may require that the instructor use a specific clearance service. As noted earlier, some clearance companies also provide clearance for non-paper electronic coursepacks used in distance learning. The two leading coursepack sources are the Copyright Clearance Center (www.copyright.com) and XanEdu (www.xanedu.com).

4. Assembling Your Own Coursepack

Instead of hiring a clearance company to obtain clearance and assemble a coursepack, you (or your secretary) can do it. Why take on this extra work? There may be two good reasons: 1) a clearance company may be unable to obtain permission for certain items that you may be able to obtain yourself; and 2) by doing it yourself you can save students' money by minimizing your fees.

It's not unusual for a clearance company to be unable or unwilling to acquire permission for certain works. Here's why: Clearance companies typically enter into affiliations with academic publishers--that is, they get permission in advance to use all the material in the publisher's catalog. This avoids having to spend the time and bother of asking permission to use each individual item. This works fine so long as the material you want to use comes from publishers who have affiliated with the coursepack company. But if the material is not from one of these pre-cleared publishers, the clearance company often will not even try to get permission, or will be unable to obtain permission if they do try.

Here are some suggestions for preparing your own coursepack:

• Start with the publisher (not the author) of the item you want to use and direct your request to the publisher 's permissions, licensing or clearance department. If the publisher doesn't control the rights you need, they can probably direct you to the rights holder. Information about locating publishers is provided in Chapter 2, Section A2.
• Obtain permission for works whether or not they are in print. Even if a work is out of print, you still need permission to use it unless it is in the public domain.
• Fax or mail your request at least three to nine weeks before your class begins (most publishers will not accept email requests for permission).

a. Sample Coursepack Request Form

Below is a sample coursepack permission request form prepared by the Association of Academic Publishers.

b. Coursepack Permission Agreement

Ordinarily, when you create your own coursepack you will be seeking permission to photocopy the material. You should always obtain written permission from the copyright owner for this. Use the agreement below for this purpose. A tear-out copy of this form is included in the Appendix, and a digital copy is on the forms disk in the back of this book. In the section entitled "Number of Copies & Assembly," indicate the number of copies to be produced for the class and check the box that indicates how the coursepack will be assembled. Coursepack agreements are almost always limited to one semester and to one institution. Unlike the non-negotiable coursepack agreements provided by clearance companies, you can modify this agreement if you wish to negotiate a multi-term agreement.

Copyright © 2007 Nolo

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