A teacher would like to reprint a student workbook we can no longer find in print. We tried to get permission from the company that bought the publisher out, but they said they couldn’t help. At this point, can we prove that we have made a good faith effort to receive permission?
It is frustrating to know just the right resource for a class—and be unable to access enough classroom copies.
Just as vexing is going the extra mile to seek permission to make your own…only to be told that you’ve reached a dead end.
And yet, class must go on. We tried to ask…now can we just make those copies?
Unfortunately, a “good faith effort to receive permission” is not a defense from liability for copyright infringement. Further, introducing evidence of the “good faith effort” to doing things the right way might work against a defendant, since it might limit their ability to claim they are an “innocent infringer” (someone who has no basis to know they are infringing, or made a reasonable but erroneous assumption of fair use).
Of course, there are some exceptions to this rule. If the purpose of the copies is to enable commentary and criticism, excerpts sufficient to illustrate the instructor’s point (and no more) may be duplicated. And a library making an archival or preservation copy under §108 of the Copyright Act might duplicate the entire book (once, but not for classroom use). But copies for students, whether or not they are sold, do not fall into these categories.
The best solution in this situation may be to find a stalwart staff member who likes to play detective, who can hopefully track down the actual copyright owner. This can sometimes be determined on copyright.gov, can sometimes be determined from author’s websites, and can sometimes only be distilled by triangulating the information from about five different sources.
And sometimes, even after a herculean effort, the answer cannot be found. But no matter what, unauthorized duplication of copyright-protected work without permission can lead to liability and damages…and a defendant showing they tried to ask for permission before doing the copying might make things worse.