6. I am a teacher and have found a good article in a magazine. Can I make photocopies of the article and distribute them to my students for class discussion?
Yes, you can do so by relying on section 41A of the Copyright Ordinance, which allows fair dealing with a copyright work by a teacher for the purposes of teaching at school. In assessing whether your making of photocopies is fair dealing, the following four factors are important:
- the purpose and nature of the dealing;
- the nature of the work;
- the amount and substantiality of the portion dealt with in relation to the original work as a whole; and
- the effect of the dealing on the potential market for or value of the work
Thus, as a general rule, your making of photocopies should be reasonable and necessary for your class discussion, and should not amount to a substitute for buying a copy of the magazine. To be prudent, you should ensure that your photocopying is not excessive (eg. making just enough copies for classroom use) and that you only photocopy the part that is necessary for the class discussion (eg. photocopying only those passages which are relevant to the discussion).
Apart from section 41A, you may follow the Guidelines for Photocopying of Printed Works by Not-for-profit Educational Establishments issued by the Intellectual Property Department for making photocopies for classroom use.
The Guidelines allow you to make photocopies of a complete article in newspapers or periodicals (clause E(6)(a)(i) of the Guidelines) under the following conditions:
- Multiple copies of a work may be made by or on behalf of a teacher giving a course (clause E (1)).
- Copies made are for the purpose of distribution to students for teaching, discussion or classroom use. Students may retain the copies for subsequent reference (clause E (2)).
- The number of copies made should not exceed one copy per student in a course (clause E (4)).
- There should not be more than 27 instances of copying made for one course in one academic year (clause E (5)).
Furthermore, you should note that the making of photocopies must comply with the conditions of spontaneity (clause D (4)), brevity (clause E (6)), and cumulative effect (clause E (7)).
These conditions are rather stringent. In particular, "spontaneity" is defined to mean that "the time of the decision to use the work and the proposed time of its use in the classroom should be so close that it would be unreasonable to require the teacher to obtain permission for the copying. If the time between the decision and the proposed use is three working days or less then for the purpose of this clause, it will be deemed unreasonable to require the teacher to obtain permission for the copying." Thus if you decide to make photocopies of a work for your teaching well before they are to be used in the classroom, you cannot rely on the Guidelines for protection.