Copyright law governs who may use original works of authorship and how such works may be used. Copyright law is rooted in the United States Constitution’s Copyright Clause (Article I, section 8, clause 8) which describes the power of Congress to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." The Copyright Law of the United States is contained in Title 17 of the United States Code.
Given that the advancement of knowledge is inherent to copyright, there are specific limitations to the rights of copyright holders. At the same time, anyone wishing to use someone else's intellectual work (for example, in a paper or other publication; as a classroom handout; or even as material on a website), must respect the rights of copyright holders. The mix of rights and limitations creates a subjective and uneasy balance in copyright. The purpose of this guide is to provide information that will help educators and students alike find the correct balance.
Fair Use
Fair use, a limitation and exception to the exclusive right granted by copyright law to the author of a creative work, is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders. (Wikipedia)
Sections 107-122 of U. S. copyright law spell out limitations to copyright holders’ rights. Of particular importance to educators are:
Section |
Stated Limitations |
107 |
Permits the “fair use” of an owner’s work without permission for the purpose of “criticism, comment, news reporting, teaching, scholarship, or research.” See the Fair Use tab for the four factors that must be considered in fair use evaluations. |
108 |
Permits a library or archive to reproduce works for archiving purposes, to make copies for patrons, and to participate in interlibrary loan, all without permission. |
109 |
Permits individuals to lend, give, or sell copies of works lawfully owned without the permission of the copyright holder. This is known as the First Sale Doctrine. |
110 |
Permits displays of work and educational performances in face-to-face teaching and in distance education. |
121 |
Permits reproduction of works for the visually impaired or with other disabilities without permission of the copyright holder. |
Public Domain
Public domain refers to the total absence of copyright protection for creative work (such as a book, painting, photograph, movie, poem, article, piece of music, product design, or computer program). (LINFO)
Copyright law also exempts works that are in the public domain due to:
• Expiration of copyright term
• Copyright was never secured
• Work was published by the U. S. Government
Creative Commons identifies 5 things not covered by copyright in the public domain.
Licensing
The verb license means to give permission. The noun licence refers to that permission as well as to the document recording that permission. Licence may be granted by a party ("licensor") to another party ("licensee") as an element of an agreement between the parties.
A licence may be issued to allow an activity that would otherwise be forbidden. It may require paying a fee and/or proving a capability. The requirement may also serve to keep the authorities informed on a type of activity, and to give them the opportunity to set conditions and limitations. A licensor may grant licence under intellectual property laws to authorize a use (such as copying software or using a (patented) invention) to a licensee, sparing the licensee from a claim of infringement brought by the licensor. (Wikipedia)
Members of a higher education community may use licensed works (e.g. databases, e-journals, e-books, etc.) according to the terms of the license. Consult with library staff for specifics.
"Four factors" are considered in all fair use evaluations. They are:
1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
2. The nature of the work wherein creative or expressive copyrighted works are given greater protection than works of a factual nature
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. The effect of the use upon the potential market for, or value of, the copyrighted work
These four factors are not meant to be exclusive and must be examined together.
The statute does not indicate how much weight is to be accorded each factor. Historically the courts have placed the most emphasis on "effect", while the "nature" of the copyrighted work is usually considered to be the least important factor.
Best Practices
Libraries strive to follow the Code of Best Practices in Fair Use as established by the Association of Research Libraries (see document below).
The Code deals with such common questions in higher education as:
When and how much copyrighted material can be digitized for student use? And should video be treated the same way as print?
How can libraries’ special collections be made available online?
Can libraries archive websites for the use of future students and scholars?
Association of Research Libraries
December 20, 2010
This report summarizes research into the current application of fair use to meet the missions of U.S. academic and research libraries. Sixty-five librarians were asked about their employment of fair use in five key areas of practice: support for teaching and learning, support for scholarship, preservation, exhibition and public outreach, and serving disabled communities.
Interviewees reported a strong commitment to obeying copyright law; rarely concerned about their own liability, librarians primarily felt responsible for ensuring their institutions were in compliance with the law. Practice varied considerably, from a rigid permissions culture to ample employment of fair use.
The following information summarizes the U.S. Copyright Office’s Circular 21: Reproduction of Copyrighted Works by Educators and Librarians:
Single Copies of Print Materials:
Multiple Copies of Print Materials for Classroom Use:
Permissible When:
Examples:
The difference between “fair use” and a copyright “infringement” is not always easy to determine. Claiming fair use requires a circumstance-specific analysis of the intended use of a work, based on the four factors. Here are three examples that illustrate this challenge:
Weight of Evidence Favors Fair Use |
Gray Area – Opinions May Vary |
Weight of Evidence Opposes Fair Use
|
Scanning three pages of a 120 page book and posting it to LMS for one semester.
|
Scanning seven pages of a 120 page book and posting it to LMS for one semester. |
Scanning an entire book and posting it to LMS. |
Why? If the scanned pages are not the “core” of the work, then the evidence favors fair use. |
Why? The amount exceeds established standards for acceptable amounts by one page (i.e. greater than 5%). Opinions will vary.
|
Why? Scanning an entire book clearly weighs against all four factors found in |
When Distributing Copies:
The Following Actions Are Prohibited:
Look for terms of use on the Web page itself and abide by them.
Always credit the source.
If you are adding the information to your personal Web page, ask permission or link to the site.
If you receive permission to use the material, keep copies of your request and the copyright holder’s response.
In 1998, the Conference on Fair Use (CONFU) issued a Final Report of its work. Although never adopted by the Association of Research Libraries, the CONFU Multimedia Guidelines do provide guidance concerning the use of small portions of multimedia works without obtaining copyright permissions. An overview:
Educator Use:
Educators may use portions of copyrighted materials for curriculum-based multimedia projects and as teaching tools in support of curriculum-based instructional activities.
Permission Is Required Under These Conditions:
Attribution and Acknowledgment:
Suggested Limits:
Medium |
Limits |
Video |
Up to 10% or three minutes, whichever is less |
Audio |
Up to 10% or thirty seconds, whichever is less |
Music, Lyrics, & Music Video |
Up to 10% or thirty seconds, whichever is less. No alterations allowed. |
Text |
Up to 10% or 1,000 words, whichever is less |
Poetry |
Up to 250 words or entire poem if work is less than 250 words |
Images |
Up to five complete images from one artist. Not more than 10% or fifteen images, whichever is less, from a single collected work |
Code of Best Practices in Fair Use for Media:
Locate additional information at The Center for Social Media which has developed several Codes of Best Practices to aid educators in making the best decisions regarding fair use:
Code of Best Practices in Fair Use for Scholarly Research in Communication
The Code of Best Practices in Fair Use for Media Literacy Education
Code of Best Practices in Fair Use for Online Video
Documentary Filmmakers' Statement of Best Practices in Fair Use
Once you have identified the materials you want to use and if you have determined that copyright permission is required, you must identify the copyright holder and secure permission to use the work. A good explanation of the steps for securing permission for copyrighted works can be found on Columbia University’s Copyright Advisory Office website. Links to individual components of the permissions process follow.
Information to include in a permission letter
Copyrightlaws.com
Q&A to determine whether permission is needed and a sample letter.
Posting an item to the learning management system (LMS) does not exempt an instructor from copyright regulations. Therefore, instructors are encouraged to follow copyright "best practices" as outlined in the Copyright Clearance Center’s publication, Using-Course Management Systems.
Note that the guidelines suggested below are based on one interpretation of U.S. Copyright Law. If in doubt, it is always advisable to err on the side of caution and complete a fair use evaluation.
Item |
Allowed |
Not Allowed |
Web site containing copyrighted material |
Link to the Web site via the LMS |
Copying and pasting the information into the LMS |
Copyrighted Web image |
Must be educational in nature; display in the LMS for one semester |
Repeated use over multiple semesters |
Article from a library database |
Direct linking to article allowed |
Copying and pasting the article into the LMS |
Article, book, book chapter, or DVD obtained through interlibrary loan or otherwise borrowed from another library |
Permission must be obtained |
Permission denied or not obtained |
Scanned copyrighted image |
Must be educational in nature; display in the LMS for one semester |
Repeated use over multiple semesters |
Scanned chapter from a book |
5% of the total work if in-print; 10% of the total work if out-of-print; allowed for one semester |
More than the allotted percentages or repeated use over multiple semesters |
Scanned article from a journal, trade publication, or magazine |
A single article for one semester |
Multiple articles from the same publication or repeated use over multiple semesters |
Audio files |
No more than thirty seconds without permission |
Repeated use over multiple semesters |
Video files |
10% or three minutes, whichever is less |
Repeated use over multiple semesters |
When you want to perform, display, or show a film, video, or TV program, whether it be as part of a course, at a group or club activity, at an organization event, or as a training exercise, you have to consider the rights of the those who own the copyright to the work you want to use. This consideration must be made regardless of who owns the video or where you obtained it. In order to show a film in a public setting, producers and distributors require institutions to purchase public performance rights (PPR). According to US copyright law (17 U.S. Code § 110) Federal Copyright Act does not require PPR for face-to-face classroom or teaching activities. This face-to-face teaching exemption allows for the performance or display of video or film in a classroom where instruction takes place with physically present students and the film is related to the curricular goals of the course.
The TEACH Act amendment to the Copyright Act, codified at § 110(2), permits the performance of a reasonable and limited portion of films in an online classroom. Instructors may also rely upon fair use for showing films in an online course, although showing an entire film online may or may not constitute fair use. Whenever the goals of a course allow, relying on clips or short portions of a film or video for online instruction is preferable. Under no circumstances can the virtual session may not be recorded. Most streaming services do not allow individual members to use their content for commercial or retail settings. While NetFlix permits one-time educational screenings for many documentaries on their platform, each platform is different and it is important to contact the provider to clarify educational exemptions.
on-profit institutions providing continuing education, in-service training, and patient education fit the criteria for fair use.
The Medical Library Association's publication, The Copyright Law and the Health Sciences Librarian, is unmatched as a resource for fair use guidelines in the provision of continuing education. Of particular interest is Section 4.c, pages 17-19.
Providers can also look to the U. S. Copyright Office's Circular 21, Reproduction of Copyrighted Works by Educators and Librarians, (a.k.a. "classroom guidelines") for guidance.
Caution: If the intent of an educational program is to generate profit or if the program looks like a commercial event, ask for permission and pay applicable royalty fees.
Used with the permission of The Medical Library Association.
A self-authored VHS tape that has not been published commercially may be converted into any other format such as DVD in single or multiple copies. There are commercial services are available to perform this conversion for personal content; however, most copyrighted material is encrypted.
In the case of materials copyrighted by Nebraska Methodist College or Methodist Health System, obtain permission to convert formats from the department that produced the resource.
VHS tapes that were commercially produced or produced by any entity other than Nebraska Methodist College or Methodist Health System may not be converted to DVD format without written permission from the copyright holder. In most cases, it is advisable to simply purchase the content in DVD format.
The absence of a copyright notice on a work does not necessarily mean a work is in the public domain. A commercially produced VHS tape, authored by others, is presumed to be copyrighted. There are legal limitations to what can be done with the tape, even under educational fair use guidelines. Why? Application of the four fair use factors argues against conversion of VHS to DVD.
Fair Use Factor |
Elements Favoring Conversion |
Elements Opposing Conversion |
Purpose of the use |
Educational Nonprofit
|
Commercial. |
Nature of the copyrighted work |
Factual Published |
Creative (art, music, fiction). Unpublished
|
Amount copied |
Small quantity. Portion used is not central to the entire work as a whole. |
Large portion or entire work. Portion used is central or the heart of the work.
|
Effect on potential market for the original work |
No significant market effect. Not available in marketplace. Absence of licensing mechanism. One-time spontaneous use. |
Cumulative effect of conversion substitutes for purchase of the original work. Digital copy is available for purchase. Reasonably available licensing mechanism. Repeated or long-term use.
|
This is the time to do some research to learn if the resource in question is currently available for purchase in DVD format or if new, updated, or more suitable resources are available to better support your learning objectives. Use the following resources to locate educational media. John Moritz Library staff can assist you.
Public domain is the mass of intellectual property (books, songs, movies, etc.) that is not protected by copyright, trademark, or patent laws and is available for the public to use freely. Reasons a work is not copyright protected include:
Copyright has expired for all works published in the United States before 1923. As such, we are free to use these works without permission. Due to passage in 1998 of the Sonny Bono Copyright Term Extension Act, no new works will fall into the public domain until 2019 when copyright expires for works published in 1923.
A list of links to online copyright resources for those who want to dive deeper!
Designed for academic institutions by the Copyright Clearance Center.
Downloadable brochure by the Association of Research Libraries. Concise tips for faculty and teaching assistants in higher education.
Brad Templeton answers commonly held myths about copyright and fair use.
A comprehensive Web resource that emphasizes copyright issues especially relevant to higher education.
University of Texas
Supports and informed and educated academic community on copyright matters in teaching, research, and scholarship.
Created to serve the copyright community of creators and users as well as the general public.
Prepared by the Association of American Publishers, the Association of American Universities, the Association of American University Presses, and the Association of Research Libraries; endorsed by the American Council on Education and the Authors Guild.
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