An academic coursepack is a collection of materials used in the classroom, distributed either in digital file format (“eReserves”) or photocopied 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 permit for their books or articles to be copied and distributed in educational contexts. Such clearances normally last for one semester or school term. After that, the instructor must seek clearance again. In addition to these paper coursepacks, some teaching institutions have begun to offer students electronic coursepacks.

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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 “fair use” under copyright law, which, legally speaking, is a use that is exempt from 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 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 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).)

Digital Coursepacks. In the past two decades, many educational institutions began maintaining digital eReserves of book excerpts. These excerpts were then made available to professors for their students. In 2008, academic publishers sued Georgia State University for maintaining such a system.
Surprisingly, the lower court judge did not follow the rules established for assembling paper coursepacks (above) and ruled against the publishers holding that the digital excerpts were a fair use. On appeal, the Eleventh Circuit held that the district court erred when it used a mechanical fair use standard (copying less than a chapter or 10% of a book is fair use). As for a different fair use factor, the Court of Appeals agreed with the lower court in that GSU’s use could not have negatively affected the potential market for digital excerpts because the publishers had not fully exploited digital licensing. The Appeals Court sent the case back for reconsideration, and the result in 2016 favored GSU again. Digital reproduction of 45 of the 49 excerpts was fair use. (Cambridge University v. Patton, 769 F.3d 1232 (11th Cir. 2014)

This decision seems to set a different standard for digital and paper coursepacks. Until other Circuits concur, the case appears to be an anomaly, and you should follow the rule that you need to obtain permission before reproducing copyrighted materials for an academic coursepack. Note, 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.

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.
• Department administration (generally, the instructor’s secretary). Below, we offer some suggestions for these kinds of administrators on how to assemble a coursepack without a clearance service.

Using a Clearance Service

It can be time-consuming to seek and obtain permission for the 20, 30, or more articles you want to use 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.

The largest copyright clearing service is the Copyright Clearance Center (www.copyright.com), which clears millions of works from thousands of publishers and authors.

In 2001, XanEdu (www.xanedu.com), acquired the coursepack service formerly known as Campus Custom Publishing. In addition to providing traditional coursepack assembly, XanEdu offers an electronic online service that provides supplemental college course materials directly to the instructor’s desktop via the Internet.

Clearance Company Fees

The total fees that clearance companies charge for assembling a coursepack are based on the cost of copyright permission for the material copied, plus copying, binding, the clearance service’s processing fee, and, if sold in a campus bookstore, the store’s markup (usually 20%, sometimes 25%). Permission fees vary, but most publishers charge approximately 8 to 10 cents per copied page (for example, $4.80 for a 60-page coursepack). Ultimately, the cost of the permission is absorbed by the student buying the coursepack. One advantage of using a coursepack service is that fees are often based on the number of copies sold, not printed.

The Copyright Clearance Center (CCC) ordinarily charges customers an annual service fee, regardless of the number of services in which a customer participates, although the CCC has been known to clear individual permissions for professors and those who don’t have accounts without charging them the annual service fee.

Clearance companies will sometimes work on a “copyright only” basis. This means the company acquires permission to include the material in the coursepack, but does not assemble the coursepacks itself. This task is usually left to the bookstore, copy shop, or academic support staff. Most clearance services provide free estimates for coursepack permissions and assembly.

Coursepack Application Forms

To begin the clearance process, you must complete and submit a coursepack application form to the clearance service. Each clearance service has its application form. Most clearance services have websites from which you can download the forms. Generally, you must print the form, complete it, and fax it back. As with all permissions, if you don’t make the payment as required under the agreement, the permission may be terminated.

Clearance Company Agreements

In addition to filling out and submitting an application, you must enter into a written agreement with a clearance company. The agreement establishes that the company will act as your agent to acquire permissions and assemble the coursepack, and details your obligations regarding payment and copyright law.

Assembling Your Own Coursepack

Instead of hiring a clearance company to obtain clearance and assemble a coursepack for you, you can do it yourself. Why take on this extra work? First, a clearance company may be unable to obtain permission for certain items that you may be able to obtain yourself. Second, 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. 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 allows them to avoid having to ask for permission to use each individual item. If the material you want to use comes from publishers who have affiliated with the coursepack company, this will work for you. But if the material you want is not from one of these precleared publishers, the clearance company may not even try to get permission, or if they do try, may be unable to obtain permission.

The Association of American Publishers (AAP) also provides sample request forms and information on coursepack requests on its website (www.publishers.org).

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Here are some suggestions for preparing your own coursepack:

• Start with the publisher (not the author) of the item you want to use; 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.
• Obtain permission for works whether or not they are still 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).

Coursepack Permission Agreement

Ordinarily, when you create your own coursepack you will seek permission to photocopy the materials. You should always obtain written permission from the copyright owners for this. Use the agreement below for this purpose. In the section entitled “Number of Copies & Assembly,” indicate the number of copies you will produce 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 nonnegotiable coursepack agreements provided by clearance companies, you can modify this agreement if you wish to negotiate a multiterm agreement.

Sample Coursepack Request Form

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

Forward this to the publisher or other rights holder. If you have already discussed rights with the copyright owner and agreed upon the terms, bypass the request form and send the Coursepack Permission Agreement.

FORM: You can download this form (and all other forms in this book) from Nolo.com; for details, see the appendix.