Copyright

A copyright owner has the right to control a lot of uses of their works, like making copies (of all or part of a work), distributing copies, showing or performing a work in public, and making new works based on existing ones. However, we all make many uses of creative works. Some are more passive - reading, watching, listening; and some are more active - citing, copying, remixing. Many very simple, everyday uses, like forwarding an email (you just made a copy!), or watching movies with friends (is that a public performance?) overlap with, or "implicate" copyright rights. In fact, there is a lot of overlap between uses people make of copyrightable works, and the kinds of uses copyright owners control. Sometimes it feels like every use requires permission.

It's really important to remember there are many limitations and exceptions to copyright owners' rights, and many types of uses that are exempted in certain circumstances. So even though the uses people want to make overlap a lot with the uses owners control, there are many situations where the use is allowed!  Here we discuss exemptions that are important in education. For all examptions to copyright, see Copyright Law of the United States. Copyright has room for many uses! Sometimes you may be able to use something because it falls under an exception or exemption to copyright law - for example, small business owners may be able to play music off the radio (which would otherwise be a public performance, requiring permission) because there is a specific exception in the law for small business use of broadcast media! Other times, you may be able to use something because your use fits within fair use, a flexible-but-confusing part of the law that enables many different types of uses under many different conditions.

The following graphic, "Can I Use that," walks you through the considerations necessary to determine if you can use a work. The content of the graphic follow it in outline form.

Can I Use That? An Outline

Visual guides don't work well for everyone, so we've also laid out the same issues in the graphic map, above, as an ordered outline. Again, intended as a guide and a learning tool.

1. Is the work covered by copyright?
   1. Is the work eligible for © protection?
      If NO, copyright is likely not an issue; no one owns a copyright in the work.
      If yes, go on to question 2.
   2. Is the work in the public domain?
      If YES, copyright is likely not an issue; no one owns a copyright in the work.
      If no, go on to question 2.
2. Is your intended use already permitted?
   1. Is there a © exemption or exception for your use (See the Classroom Use and Virtual Instruction Exceptions)?
   2. Is there a Library subscription for your use? Use Finding Databases and Journals
   3. Is the work available under a Creative Commons license or other open license? If YES to ANY of these questions, copyright is an issue, but your use may be legal.
      If NO to all of these questions, go on to question 3.
3. Is your intended use a Fair Use?
   1. Have you seriously examined all four factors and other relevant issues?
      If NO, go back and do that.
   2. Having examined all four factors and other relevant issues,
      If you concluded that your use is likely to be a fair use, then your use may well be legal.
      If you concluded that your use is NOT likely to be a fair use, then seek permission. If you seek permission, and it is denied, consider revising your planned use, using a different work, buying legal copies for your use, or seeking further legal advice.

*This Introduction to Using Copyright Materials guide is reproduced from the University of Minnesota University Libraries Copyright website under a Creative Commons CC BY-NC license.

Public domain works are not protected by copyright either because their copyright term has expired or they fall within a category of works that are not subject to copyright law. The public owns these works, not an individual author or artist. Anyone can use a public domain work without obtaining permission. An important caveat regarding public domain material is that collections, new editions, and derivative works of public domain material may all be protected by copyright. With collections, an author could collect public domain works in a book or display them on a website, and the collection as a whole could be protected by copyright, even though individual works within it are not.

There are four common ways that works arrive in the public domain:

The Copyright has Expired

In general, the copyright term for a work created in the United States after 1977 (that is not a work made for hire) is the life of the author plus 70 years. All works published in the United States before 1923 are in the public domain. Works published between 1923 and 1978 may be protected by copyright if they were published with notice and the copyright was renewed. There are many other scenarios and sets of circumstances that affect the copyright term of these earlier works. Help with these complicated rules, and other scenarios can be found in this chart and in the U.S. Copyright Office's circular on the Duration of Copyright. You may also use the Digital Copyright Slider U.S. Copyright Office Records to help determine if a work is in the public domain.

The Owner was Required to Renew the Copyright and Failed to do so

At certain points in history copyright holders were required to renew their copyright if they wished to keep their works from entering the public domain. Renewal is no longer required to retain copyright for the full term allowed for works created after 1978.

The Owner Deliberately Places it in the Public Domain

To place an item in the public domain intentionally, a creator of a work would need to state that intent explicitly. If no such statement has been made, assume the work is protected by copyright. (Compare alternative licenses like Creative Commons.)

Copyright Law Does Not Protect this Type of Work

Copyright will not protect the titles of a book or movie, nor will it protect short phrases such as "Make my day" (though trademark protection may apply).  Copyright protection also doesn't cover facts, ideas or theories, although it may protect the expression of those ideas. Any work created by a U.S. government employee or officer is in the public domain, provided that the work is created in that person's official capacity. This applies only to U.S. government works, not the works of other national or state governments.

Tools for Determining if a Work is in the Public Domain

• Digital Copyright Slider
• Copyright Registration and Renewal Records
• Stanford Copyright Renewal Database

What is Creative Commons?

Creative Commons is a nonprofit organization that has created licenses that work in conjunction with copyright law to allow creators to specify how they will allow others to use their works without seeking permission. You can use works licensed under Creative Commons without seeking permission from the copyright holder as long as you follow the license terms. You may also choose to license your own works with a Creative Commons license in order to allow others to use them.

Creative Commons licenses are legally recognized licenses. They do not supersede copyright. All copyright laws including the ability to use works under fair use still apply. However, the licenses allow copyright holders to extend beyond copyright limitations to allow others to do such things as copy, reuse, remix, edit, share, and build upon their works.

For more information on Creative Commons visit their website.

Creative Commons License Types

Attribution (CC BY)

The Attribution only license allows others to do whatever they want with a work including using it for commercial puproses as long as they attribute it back to the original creator. It is the least restrictive of the Creative Commons licenses.

Attribution ShareAlike (CC BY-SA)

The Attribution ShareAlike license allows others to do whatever they want with a work including using it for commercial purposes as long as they attribute the original work back to the creator and license any new works based upon the original work under the same Creative Commons license.

Attribution-No Derivatives (CC BY-ND)

The Attribution-No Derivatives license allows others to copy and share a work even for commercial purposes. However, they must not change the work in any way, and they must attribute it back to the original creator.

Attribution-NonCommerical (CC BY-NC)

The Attribution-NonCommerical license others others to do whatever they want with a work as long as it is not for commercial purposes and they attribute the work back to the original creator.

Attribution-NonCommercial-ShareAlike (CC BY-NC-SA)

The Attribution-NonCommercial-ShareAlike license allows others to do whatever they want with a work as long as it is not for commercial purposes. They must also attribute the work back to the original creator, and if they create any new works based on the original work they must license their works under the same Creative Commons license.

Attribution-NonCommercial-NoDerivatives (CC BY-NC-ND)

The Attribution-NonCommercial-NoDerivatives license is the most restrictive of the Creative Commons licenses. It allows others to copy or share the work without making any changes for non-commerical purposes as long as they attribute it back to the original creator.

CC0

The CC0 license attempts to allow creators to completely relinquish their copyrights. Many copyright laws including the United States' automatically grant copyright whether or not a creator requests it. The CC0 license lets a creator indicate that that they are not reserving any of their rights under copyright law, thus anyone can use the work in any way that they wish. Some legal jurisdictions may not allow for works to be entered into the public domain before their copyright term has expired. The CC0 license indicates that creators will treat their works as if they are in the public domain even when the law does not allow them to be.

Attribution

For information on attribution and examples, see Creative Common's wiki page "Best Practices for Attribution."

Copyright law places a high value on educational uses.The Classroom Use Exemption ( 17 U.S.C. §110(1)) only applies in very limited situations, but where it does apply, it gives some pretty clear rights.

To qualify for this exemption, you must: be in a classroom ("or similar place devoted to instruction"). You must be there in person, engaged in face-to-face teaching activities, and you must be at a nonprofit educational institution. If (and only if!) you meet these conditions, the exemption gives both instructors and students broad rights to  perform or display any works. That means instructors can play movies and music for their students, at any length (though not from illegitimate copies!). Instructors can show students images, or original artworks. Students can perform arias, read poems, and act out scenes. And students and instructors can do all these things without seeking permission, without giving anyone payment, and without having to deal with the complications of fair use.

The Classroom Use Exemption does not apply outside the nonprofit, in-person, classroom teaching environment! It doesn't apply online - even to wholly course-related activities and course websites. It doesn't apply to interactions that are not in-person - even simultaneous distance learning interactions. It doesn't apply at for-profit educational institutions. The Classroom Use Exemption also only authorizes performance or display. If you are making or distributing copies (i.e., handing out readings in class), that is not an activity that the Classroom Use Exemption applies to.

The TEACH Act (17 U.S.C. §110(2)) does create some rights for teaching uses of copyrightable works in the online environment, but it's much more technical and there are a lot more restrictions.

The TEACH Act

The TEACH Act (Technology, Education, and Copyright Harmonization Act, 2002) (Section 110(2)) allows educators to perform or display copyrighted works in distance education environments. If you would like to show a video or display an image during your online class, you may want to consider whether that use is allowable under the TEACH Act.

Implementing TEACH can be difficult because of its complexity and the many detailed requirements for instructors, technologists, and institutions. 

Benefits of the TEACH Act

• Performances and displays of nearly all types of copyrighted works
• Transmission of digital materials to students at distant education locations
• Storage of copyrighted content for brief periods of time, such as that which occurs in the process of transmitting digital content
• Creating digital versions of print or analog works

Requirements of the TEACH Act

In order to take advantage of these benefits, instructors and institutions must meet certain policy requirements specified by the TEACH Act. Reasonable measures to assure that only enrolled students will have access to materials during the course of instruction must be in place before TEACH exemptions can be made. Below is a list of requirements:

• The teaching must occur at an accredited, nonprofit educational institution.
• Only lawfully acquired copies may be used.
• Use is limited to performances and displays. The TEACH Act does not apply to materials that are for students' independent use and retention, such as textbooks or readings.
• Use of materials must be within the context of "mediated instructional activities" analogous to the activities of a face-to-face class session.
• The materials to be used should not include those primarily marketed for the purposes of distance education (i.e. an electronic textbook or a multimedia tutorial).
• Only those students enrolled in the class should have access to the material.
• Reasonable efforts must be made to prevent students from distributing the material after viewing it.
• If a digital version of the work is already available, then an analog copy cannot be converted for educational use.
• Students must be informed that the materials they access are protected by copyright.
• The educational institution must have a policy on the use of copyrighted materials and provide informative resources for faculty advising them on their rights.

The requirements for complying with the TEACH Act are numerous and onerous. As opportunities for applying the TEACH Act are limited in scope, keep in mind that you may also consider to fair use when using copyrighted works online and in distance education settings.

TEACH Act Resources

• "Balancing Copyright Concerns: The TEACH Act of 2001," by Laura Gasaway, Educause Review. Nov/Dec 2001 (PDF)

What is Fair Use?

Fair use is a doctrine under copyright law that permits certain uses of a work without the copyright holder’s permission.  The fair use of a copyrighted work is an exception to the exclusive rights of a copyright holder. Fair use may be made of a copyrighted work for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.  However, the use of a work for one of these purpose does not automatically qualify as a fair use. There are no hard and fast rules when deciding whether or not use of copyrighted material can be considered fair use. A nuanced analysis weighing four factors must be done for each intended use of copyrighted material.

It is also important to note that fair use is a defense. Your determination that a use is fair does not prevent a copyright holder from taking legal action against you. The only definitive way to determine whether your fair use analysis was correct is in a court of law. Therefore making fair use determinations also involves your level of risk averseness. 

The Four Factors of Fair Use

Fair use is a flexible balancing test that is difficult to define apart from the specific factual circumstances in which it has been applied by courts.  

Explanation of Each Factor:

Purpose and character of the use

Consider: is the use educational or commercial? Is it a non-profit use or a use for profit? Is the use transformative or iterative?

• Educational use does not automatically render a use fair; this is just one helpful factor.  For example, note that many materials are created specifically for the educational market and fair use cannot be relied upon to make these works “free.”
• Many recent cases have centered on whether the use is transformative or iterative, with transformative use more likely to be considered fair. Transformative uses include such use of portions of a work in parodies or thumbnail images that reproduce a full–sized image but for a different purpose, such as a search engine.
• Many educational uses are iterative in that they require the use of exact copies, which is usually less defensible than the use of limited portions of a work for a new purpose or in a new way.
• The more transformative a use is, the less likely it is to negatively affect the market for the original work, the fourth fair use factor.

Nature of the copyrighted work

Consider: is the work published or unpublished? Is it factual or creative?

• Unpublished works generally receive greater protection because the courts consider the copyright holder’s right to first publication.  The fact that a work is unpublished does not bar a finding of fair use, but it makes the other factors more important.
• The more creative a work is, the stronger the copyright.  Purely factual data such as phone numbers do not receive copyright protection, but the selection and arrangement of factual data with some modicum of originality may.

Amount and substantiality of the use

Consider: how much of the work are you using?  How important is the portion you are using to the work as a whole?

• Using a smaller portion of a work is more likely to qualify as a fair use, though there are no rigid page number or percentage guidelines in the statute.
• This factor is analyzed qualitatively as well as quantitatively: a small amount of the work may be too much if it reproduces “the heart of the work.”

Impact on the market

Consider: how many copies are being made and how widely will they be distributed? Is the use spontaneous or is it repeated? Is the original for sale or license?

• A use for which there is a clear market or licensing mechanism is less likely to be fair than the use of a work for which there is no market or clear potential market.
• Making numerous copies of a work weighs against a fair use finding; digital reproduction exacerbates this factor because digital copies are easier to copy and disseminate widely.
•  The Supreme Court has stated that this factor is the most important, and the analysis of some of the other factors often lead to a market analysis.

 

Fair Use Decision Tools

Introduction to the Checklist: The Fair Use Checklist and variations on it have been widely used for many years to help educators, librarians, lawyers, and many other users of copyrighted works determine whether their activities are within the limits of fair use under U.S. copyright law (Section 107 of the U.S. Copyright Act).  Fair use is determined by a balanced application of four factors set forth in the statute and listed on this guide.  Those factors form the structure of this checklist.  Congress and courts have offered some insights into the specific meaning of the factors, and those interpretations are reflected in the details of this form.

Benefits of the Checklist: A proper use of this checklist should serve two purposes.  First, it should help you to focus on factual circumstances that are important in your evaluation of fair use.  The meaning and scope of fair use depends on the particular facts of a given situation, and changing one or more facts may alter the analysis.  Second, the checklist can provide an important mechanism to document your decision-making process.  Maintaining a record of your fair use analysis can be critical for establishing good faith; consider adding to the checklist the current date and notes about your project.  Keep completed checklists on file for future reference.

The Checklist as Roadmap: As you use the checklist and apply it to your situations, you are likely to check more than one box in each column and even check boxes across columns.  Some checked boxes will favor fair use and others may oppose fair use.  A key issue is whether you are acting reasonably in checking any given box, with the ultimate question being whether the cumulative weight of the factors favors or turns you away from fair use.  This is not an exercise in simply checking and counting boxes.  Instead, you need to consider the relative persuasive strength of the circumstances and if the overall conditions lean most convincingly for or against fair use.  Because you are most familiar with your project, you are probably best positioned to evaluate the facts and make the decision.

*Fair Use Checklist and Introduction to the Fair Use Checklist borrowed and adapted from the checklist created by Kenneth D. Crews (Columbia University) and Dwayne K. Butler (University of Louisville).

Fair Use Checklist (pdf)

Fair Use Evaluator

 

Fair Use Court Opinions

The Fair Use Index is a searchable index of court opinions in copyright cases developed by the U.S. Copyright Office. Each decision includes a brief summary of the facts, the relevant question(s) presented, and the court’s determination as to whether the contested use was fair. Codes of best practice in fair use have been developed by various communities of practice to outline common practices they regard as fair use when using copyrighted materials. These codes of best practice are not legal documents and following them does not guarantee that a copyright holder will not take legal action against you. However, following these best practices will give you a stronger fair use defense should your use be questioned. The following is a list of codes of best practice that are particularly relevant to the academic community. Additional codes of best practice may be found on the Center for Media and Social Impact website

Fair Use Best Practices

• The Code of Best Practices for Academic and Research Libraries
• Code of Best Practices in Fair Use for Poetry Provides guidance on when poets have the right to excerpt or quote copyrighted material in their work.
• The Code of Best Practices in Fair Use for Media Literacy Education Provides guidance to educators in using copyrighted materials during media literacy instruction.
• Statement of the Fair Use of Images for Teaching, Research, and Study
• Code of Best Practices in Fair Use for Scholarly Research in Communication A code of best practices for U.S. scholars involved in the field of communication.

In the teaching context, it may be useful to take the following steps to help qualify a use as fair and protect yourself and your university from infringement liability:

• When using third party material, perform a fair use analysis in good faith;
• Copy as little of the material as you can and still make the use you need;
• In an on-line setting, first check to see if the library has a license to the material; you may be able to point students to the material in an accessible database;
• Consider placing material in a password-protected environment that is available only to those enrolled in the class and terminate the students’ access to the material when class is over;
• Link to the material instead of copying it whenever possible;   
• If the use cannot be considered fair, ask the copyright holder for permission to use it.

Getting Permissions

If materials you need to use are copyrighted (in other words, not in the  public domain), you will almost certainly need to obtain permission to use them.  The exception to this requirement would be use that is considered fair use.  Failure to obtain permissions could result in legal action for infringement.

There are several standard steps in the process of acquiring permissions:

1. Determine if permission is needed.
2. Identify the copyright holder.
3. Request permission in writing.
4. If permission is granted, acknowledge this appropriately.
5. If permission cannot be obtained, be prepared to modify your plans.

 Determine if permission is needed

• Use of materials in the public domain do not require permissions.  Some uses of  open access materials on a Creative Commons License do not require permissions.
• Use of copyrighted materials for fair use may be done without permission, however, there is always a risk that your assessment of the fair use doctrine may be wrong.  Fair use judgments are made on a fact-based, case-by-case basis (there is no one definitive test).

 Identify the copyright holder

• Prior to the 1980’s, authors were generally the rights-holders; since then, publishers have increasingly retained these rights.
• For print publications, begin by contacting the publisher.
• Collective copyright licensing agencies can provide easy access to many publishers and can provide for nearly-instantaneous purchase of rights by credit card in many instances.  These services will also seek permissions on your behalf if you are not finding the publisher listed.  If none of these options is fruitful, you’ll need to contact the publisher directly
• Individual publishers:  Many publisher sites provide a link to permissions information and/or contact information.  If a book has been published in several forms (hardcover and paperback, for example), often the first publisher holds the rights you seek.
• If the publisher does not own the rights, you may be referred to the author (or the author’s estate) … or multiple authors or creators associated with the work you wish to use.  Use of some works (those with text, graphics, images, etc.) may require seeking permission from a number of individuals including authors, photographers, artists and others.

Request permission in writing

• Permission may take the form of a license (granting you the right to use the work), or a release (granting you the right to use the work with the promise by the author not to sue).  Receiving permission may require payment of fees.

• Allow adequate time for receiving a reply.  Requesting permission does not protect you from infringement if you have not received a reply.

• The Association of American Publishers recommends that all of the following information be included in your request:
  • author's, editor's, translator's full name(s)
  • title, edition and volume number of book or journal
  • copyright date
  • ISBN for books, ISSN for magazines and journals
  • numbers of the exact pages, figures and illustrations
  • if you are requesting a chapter or more, both exact chapter(s) and exact page numbers
  • whether material will be used alone or combined with other photocopied material
  • number of copies to be produced
  • name of college or university
  • course name and number
  • semester and year in which material will be used
  • instructor's full name
  • method of reproduction (photocopying, scanning, etc.)
• See a model permission letter for streaming video, for text or for use of material in a Course Management System (model request letters are from the Columbia University website and licensed on a Creative Commons attribution license to the page's author, Kenneth D. Crews)

Acknowledge permission granted

If you are successful in obtaining permission, this permission is noted, generally, in any of the following ways, or according to any special instructions given by the grantor:

• Footnote in the text
• Source note to a table
• Credit line listed under an illustration. 
• See the appropriate style guide for your discipline for more information.

If permission cannot be obtained, be prepared to change your plans

You may need to use less of the material than you had planned, or not use it altogether.

Collective Copyright Permission Agencies attempt to centralize the process for requesting permissions to use copyrighted works. These agencies attempt to do the work of contacting the copyright holders and granting licenses on their behalf eliminating the need for you to hunt down the copyright holder to request permission yourself. Using these agencies can often make requesting copyright permissions easier though most of these agencies charge a fee for their services.

Works in Print

The following is a list of copyright licensing agencies that deal with works in print.

• Copyright Clearance Center
• The Author's Registry
• Access Copyright (for Canadian works)
• Author's Licensing and Collecting Society (for UK works)

Online Works

The following is a list of agencies that deal with copyright permissions for online works.

• Copyright Clearance Center
• iCopyright

Musical Works

The following is a list of agencies that deal with copyright permissions for musical works.

• ASCAP (American Society of Composers, Authors, & Publishers)
• BMI (Broadcast Music, Inc.)
• SESAC
• Harry Fox Agency

Dramatic Works

The following is a list of agencies that deal with copyright permissions for dramatic works.

• ASCAP (American Society of Composers, Authors, & Publishers)
• BMI (Broadcast Music, Inc.)
• SESAC
• Harry Fox Agency

Artistic Works

The following is a list of agencies that deal with copyright permissions for artistic works.