Copyright Basics for Educators

CONTENTS:  Copyright Answers for Instructors  ||   Links to Copyright Information  ||   Copyright in Brief

Copyright Answers for Instructors: Tools that Help

  1. Determine if the material is protected by copyright by using these tools:

Is It Protected by Copyright? Public Domain Slider           
Set the slider on the right side of the screen to the publication date of the item. Then read the information in the windows and mouse-over asterisks for more information. [Last accessed August 12, 2009]

Copyright Term and the Public Domain in the United States, by Peter B. Hirtle, Cornell Copyright Information Center, January 2009. Summary Table of duration of copyright.  [Last accessed August 12, 2009]

  2. If it IS protected by copyright, use the following tools to see if “fair use” or educational exceptions allow the intended use without seeking permission.

Exceptions for Instructors eTool     
“Under certain conditions, U.S. Copyright Law provides for the educational use of copyrighted material  without the permission of the copyright holder. To find out if your intended use meets the requirements set out in the law, use this free, online tool. This tool can also help you collect information detailing your educational use and provide you with a summary in PDF format.”  [Last accessed August 12, 2009]

Fair Use Evaluator      
This tool will: “Help you better understand how to determine the ‘fairness’ of a use under the U.S. Copyright Code. Collect, organize & archive the information you might need to support a fair use evaluation. Provide you with a time-stamped, PDF document for your records, which could prove valuable, should you ever be asked by a copyright holder to provide your fair use evaluation and the data you used to support it. Provide access to educational materials, external copyright resources, and contact information for copyright help at local & national levels.”  [Last accessed August 12, 2009]

  3. If it IS protected by copyright, and “fair use” or educational exceptions do not allow the intended use, you will need to seek permission for use from the copyright holder.

LINKS to Copyright Information: law, guidelines, explanations, tutorials

    Alternatives to traditional copyright
          { Creative Commons  [Last accessed August 12, 2009]
    Copyright Tutorials and Explanations

{ United States Copyright Office web site --information, law & regulations, what's new  [Last accessed August 12, 2009]
{ United States Copyright Office "Copyright Basics"   [Last accessed August 12, 2009]  
{ Copyright Clearance Center "Copyright Basics"   [Last accessed August 12, 2009]

{ Stanford University's "Copyright & Fair Use"   [Last accessed August 12, 2009]

{ Purdue University's "Copyright Overview"   [Last accessed August 12, 2009]
{ Bound by Law: Trapped in a Struggle She Didn't Understand --graphic novel about copyright   [Last accessed August 12, 2009]

{ Music Library Association's Copyright for Music Librarians   [Last accessed August 12, 2009]
{ American Library Association's Copyright information    [Last accessed August 12, 2009]

    Copyright Policy

{ Dakota State University copyright policy   [Last accessed August 12, 2009]

    Copyright Law 

{ Copyright Law of the United States of America    [Last accessed August 12, 2009]

    Copyright and Distance Education           

          { Purdue University, Copyright Exceptions: Virtual Instruction    [Last accessed August 12, 2009]
          { New Copyright Law for Distance Education: The Meaning and Importance of the TEACH Act,
            by Kenneth Crews.  [Last accessed August 12, 2009]

Copyright in Brief

CONTENTS this page:

Introduction   ||   Copyright summarized   ||   What works are protected   ||   How long works are protected   ||   What rights the owner has   ||   Exceptions to copyright law   ||   Fair use exception   ||   Requesting permissions   ||   References  

Introduction (please read!) 

The purpose of "Copyright in Brief" is to provide basic information about copyright in non-profit educational settings.  Readers should understand that the law related to copyright is complicated. Especially when dealing with digital information, copyright law is unsettled.  The information provided here, while designed to help you understand copyright and fair use, is NOT legal advice.  The author is a librarian, not a lawyer.  The intent here is to provide information that will help the reader make informed choices about the use of copyrighted materials that are subject to the laws of the United States.  For legal advice, seek out a lawyer.

If the use you want to make of copyrighted material is not exempt from copyright law, you will need to get permission from the copyright owner to use it and/or pay fees for its use.  If you are are in doubt whether you can legally use someone else's work, it makes sense to do one of the following: 1) get permission to use it,  or 2) choose not to use the material, or  3) consult a lawyer for advice.

Always follow University policy.  To do otherwise may place you at risk in case of a lawsuit.

At the end of "Copyright in Brief," you will find links to other sites.  These include texts of relevant laws, explanations, tutorials, guidelines and other materials.

Copyright summarized

"The U.S. Copyright Act, 17 U.S.C. §§ 101 - 810, is Federal legislation enacted by Congress under its Constitutional grant of authority to protect the writings of authors. See U.S. Constitution, Article I, Section 8. Changing technology has led to an ever expanding understanding of the word "writings". The Copyright Act now reaches architectural design, software, the graphic arts, motion pictures, and sound recordings."                 [Source: Copyright: An Overview. Legal Information Institute, Cornell Law School.  Available: http://www.law.cornell.edu/topics/copyright.html.]

A.     Copyright protects the rights of copyright owners.  Everything you now write (letters, e-mails, etc.) and photograph is copyrighted for your lifetime plus 70 years. 

B.     You need to get permission from the copyright owner to use copyrighted work (and may have to pay fees for its use) -- unless the use you want to make is exempt from copyright law

C.     Exemptions to copyright – such as “fair use” -- are designed to protect the exchange of ideas and scholarship

D.     To make sense out of copyright and to decide whether you can use someone else's work, you need to know:  
1.  what works are protected,   
2.  how long they are protected, 
3.  what rights the owner has, and 
4.  what exceptions (primarily "fair use") are allowed.

E.   In sum...    

      1. If you determine that 

    a. the work is copyrighted, and
b. that the copyright is still in effect, and 
c. that the use you have in mind will violate the rights of the owner, 

      2. then you must determine if there is an exemption or exception in the law (such as "fair use") that will allow you to use the material.  

      3. If not, you MUST get permission from the copyright owner to use the material.

What works are protected

A.  Protected works 
[Source:  Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code, chapter 1, section 102, http://www.loc.gov/copyright/title17/92chap1.html#102 ] 

Copyright protection is provided to authors of “original works of authorship fixed in any tangible medium of expression, … which … can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.  Works of authorship include the following categories:  (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works.”

1. As original work fixed in a tangible medium, material on the Web is protected.

2.  Categories are interpreted broadly, so computer programs may be registered as “literary works.” [Source: Crews, Kenneth D.  2000.  “Online Copyright Tutorial.”  American Library Association Office for Information Technology Policy]

B.  Protection is automatic.  Works are protected immediately. 

1. No copyright notice on the item is necessary
2. Item does not have to be registered at Copyright Office
3. Material on the Web is protected by automatic copyright and no copyright notice is necessary to protect it. 

C.  Public domain.  Protection has not always been automatic. In the past, failure to follow laws about registration, copyright notice, and renewal would put a work in the “public domain.”

1. Works in the public domain may be used without copyright restrictions.
2. So need to determine if a copyrightable work is actually copyrighted or is in the public domain.
3. Determining this is complicated by changes in the law through time

D.  What is unprotected .  

        1.  Without restriction, you may use

    a. works in the public domain, 
b. freeware clearly marked as restriction-free (not shareware!), 
c. works of the U.S. government,
d. any idea, procedure, process, system, method of operation, concept, principle, or discovery described in a work [see Copyright law, section 102],
e. facts
f. works that are not original (such as telephone books or unoriginal reprints of works in the public domain). 

2.  Be aware, though, that other laws might apply.  … may need to consider rights of privacy and publicity, ask permission to use a trade or service mark, or get a license to practice a patented process or system. [Source:  Harper, Georgia. Last updated 1-5-1998.  “Copyright Crash Course.”  Available: http://www.utsystem.edu/ogc/intellectualproperty/copypol2.htm]

How long works are protected

A.  Length of copyright.  The length of copyright has changed over time due to changes in laws.  The following (B. & C.) summarize what you need to know about the length of copyright in order to determine whether an item is or is not protected by copyright. 

B. Summary Table of duration of copyright. See Copyright Term and the Public Domain in the United States, by Peter B. Hirtle, Cornell Copyright Information Center, January 2009.

C.  Tool for Instructors.  To help determine whether something is copyrighted, use Is It Protected by Copyright? Public Domain Slider 

D.   Copyright search.  Copyright records are public and you can search copyright records online. Also, the U.S. Copyright Office will conduct a search of copyright records for a fee. 

 

What rights the owner has

A. Rights of owners.  Copyright owners have exclusive rights of reproduction, adaptation, distribution, public performance and display. 
[Source:  Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code, chapter 1, section 106, http://www.loc.gov/copyright/title17/ ] 

B.  Subject to the exemptions in sections 107 to 122 of the copyright law, the rights of owners are given in section 106 and 106a.  According to section 106:

"...the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
[Source:  Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code, chapter 1, section 106, http://www.loc.gov/copyright/title17/ ] 

Exceptions to copyright law

A.  Exceptions.  Exceptions to the rights of owners are contained in sections 107 through 122 of the copyright law [See:  Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code, chapter 1, http://www.loc.gov/copyright/title17/ ].  

        1.  These include:

107. Limitations on exclusive rights: Fair use 
108. Limitations on exclusive rights: Reproduction by libraries and archives 
109. Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord 
110. Limitations on exclusive rights: Exemption of certain performances and displays 
111. Limitations on exclusive rights: Secondary transmissions 
112. Limitations on exclusive rights: Ephemeral recordings 
113. Scope of exclusive rights in pictorial, graphic, and sculptural works 
114. Scope of exclusive rights in sound recordings 
115. Scope of exclusive rights in nondramatic musical works: Compulsory license for making and distributing
phonorecords 
116. Negotiated licenses for public performances by means of coin-operated phonorecord players 
117. Limitations on exclusive rights: Computer programs 
118. Scope of exclusive rights: Use of certain works in connection with noncommercial broadcasting 
119. Limitations on exclusive rights: Secondary transmissions of superstations and network stations for private
home viewing 
120. Scope of exclusive rights in architectural works 
121. Limitations on exclusive rights: reproduction for blind or other people with disabilities 
122. Limitations on exclusive rights; secondary transmissions by satellite carriers within local market 

2.  Remember that in order to use exceptions, all conditions required by the law must be met.  If you believe an exception justifies your use copyrighted material, read the text of the law itself [Copyright law, sections 107 through 122] to make sure that you understand the conditions: http://www.loc.gov/copyright/title17/.   

3.  Be sure to follow University copyright policy (see DSU Policy Manual: http://www.departments.dsu.edu/personnel/policies/017000.htm).

B.  Fair use.  According to section 107 of Title 17, “fair use” is one of the limitations on exclusive rights.  Certain uses of copyrighted materials – criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research – are allowed under certain conditions.  If fair use applies, you do not need to get permission from the copyright owner or pay compensation for the use. 

        1.  The factors that must be used to determine fair use are:

a.  purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

b.  nature of the copyrighted work;

c.  amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

d.  effect of the use on the potential market for or value of the copyrighted work.

 2. Fair use judgment calls. 
[Source: Crews, Kenneth D.  2000.  “Online Copyright Tutorial.”  American Library Association Office for Information Technology Policy (no longer available on web). Recommended reading: Crews, Kenneth D. Copyright Law for Librarians and Educators: Creative Strategies and Practical Solutions. 2d ed. Chicago: ALA Editions, 2006.]

The judgment calls required by these four factors do allow the law to be flexible but, also, they allow for differing opinions and the possibility of lawsuits. When you are trying to decide whether fair use will allow you to make use of copyrighted material in a specific situation, you should look at all four factors.  If a copyright owner claims infringement, the court will weigh the four factors against each other to make a judgment.  All four factors do not necessarily have to be met.  The balance of the four factors in a given situation will determine if the use is fair or not.

 a. The first factor focuses on how the material will be used. Nonprofit educational use is favored over commercial use (but this factor cannot be used alone to determine fair use).    

b. The second factor focuses on the nature of the work itself.  Various characteristics of the work might play a role.  For example, nonfiction is more likely to be subject to fair use than fiction. 

c.  For the third factor, using a smaller portion of a work is more likely to be fair use than using a larger portion.  But determining the amount of a work that might be considered fair use can depend on how much of it might reasonably be needed for a favored purpose, on characteristics of the work, and on other factors.  

d. With the fourth factor, a use that negatively impacts the market for the work is less likely to be fair use than one that does not. 

 3.  Fair use warning.  Kenneth Crews warns, “Be careful…not to reach hasty conclusions, such as assuming that all academic uses are “fair” or that commercial uses cannot be fair.   Your use might well be a “favored purpose,” such as nonprofit education, but the other three factors may lean against fair use and outweigh the first factor.”  
[Source: Crews, Kenneth D.  2000.  “Online Copyright Tutorial.”  American Library Association Office for Information Technology Policy (no longer available on web) Recommended reading: Crews, Kenneth D. Copyright Law for Librarians and Educators: Creative Strategies and Practical Solutions. 2d ed. Chicago: ALA Editions, 2006.]

 4.  Fair Use Guidelines.  One way of dealing with the difficulty of making decisions about fair use has been the development of guidelines by groups who agree to voluntarily abide by the guidelines.  

a.  Guidelines are intended to simplify decision-making by educators when they want to use protected materials, and they can be very helpful.  They are not legally binding and are not part of the copyright law. 

b.  Some guidelines are:

• “Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with Respect to Books and Periodicals” (pp 7-8), Circular 21, US Copyright Office. Examples of university policies based on these guidelines include: Minnesota State Colleges & Universities Guidelines ; Maricopa Community Colleges "Guidelines for Specific Media"

• “Guidelines for Off-Air Recording of Broadcast Programming for Educational Purposes” (page 22), Circular 21, US Copyright Office. Examples of university policies include: Wright State University guidelines

c.  In the late 1990s, the Conference on Fair Use (CONFU) brought together "copyright owner and user interests to discuss fair use issues [in a digital environment] and, if appropriate and feasible, to develop guidelines for fair uses of copyrighted works by librarians and educators."  It resulted in:

• the development of fair use guidelines for educational multimedia, 

• proposals for fair use guidelines for digital images and 

• proposals for educational fair use guidelines for distance learning

5.  Fair Use Rules of Thumb.  As an alternative to guidelines, Georgia Harper (Manager, Intellectual Property Section, The University of Texas System Office of General Counsel) provides "fair use rules of thumb" for making decisions about using copyrighted materials in her Copyright Crash Course. For example, see:

• Rules of thumb for digitizing and using images for educational purposes 

• Rules of thumb for displaying and performing others' works in distance learning

6.  For more information.   See "Fair Use of Copyrighted Materials" in Copyright Crash Course by Georgia Harper and see other copyright tutorials and explanations.

 

Requesting Permissions

A.  If you have determined that the material you want to use is copyrighted and none of the exemptions permit the use, then you must ask permission for the material’s use from the copyright owner. 

B.  To learn how to ask permission, read Georgia Harper’s “Getting Permission” in http://www.utsystem.edu/ogc/intellectualproperty/permissn.htm.  Her instructions are clear and thorough.

C.  You must receive a response giving you permission in order to be certain you can legally use the material.  

1.  As Kenneth Crews points out, lack of response or silence does not constitute permission.  While the lack of response might mean the owner does not care, it could as easily mean the owner cares deeply but is too busy or simply does not want to bother to answer you. “You ultimately need to determine the importance of your proposed use for the materials and assess the risks and your willingness to take those risks.  The decision is based on a peculiar blend of legal analysis, dedication to your project, and your personal willingness to walk on the edge.  No simple answers are possible” [Source: Crews, Kenneth D.  2000.  “Online Copyright Tutorial.”  American Library Association Office for Information Technology Policy (no longer available on web) Recommended reading: Crews, Kenneth D. Copyright Law for Librarians and Educators: Creative Strategies and Practical Solutions. 2d ed. Chicago: ALA Editions, 2006.].     

2.  Do follow university policy.

References

Copyright: An Overview. Legal Information Institute, Cornell Law School.  Available: http://www.law.cornell.edu/topics/copyright.html [last accessed Aug 14, 2009].

“Copyright Law of the United States of America.”  U.S. Copyright Office. Available: http://www.loc.gov/copyright/title17/ [last accessed Aug 14, 2009]

Crews, Kenneth D. 2000.  "Fair Use: Overview and Meaning for Higher Education." Copyright Management Center, Indiana University-Purdue University at Indianapolis. Available: no longer  [last accessed November 6, 2000].

Crews, Kenneth D.  2000.  “Online Copyright Tutorial.”  American Library Association Office for Information Technology Policy. Available: no longer [last accessed November 6, 2000].

Crews, Kenneth D. 2006. Copyright Law for Librarians and Educators: Creative Strategies and Practical Solutions. 2d ed. Chicago: ALA Editions, 2006.

 Harper, Georgia. Last updated 1-5-1998.  “Copyright Crash Course.”  Available: http://www.utsystem.edu/ogc/intellectualproperty/copypol2.htm [November 6, 2000]. 

RLS revised Aug 12, 2009.