Copyright is one of four types of intellectual
property protected by federal law in the
The Copyright Law (first enacted in 1790) gives
Copyright owners the exclusive right to duplication (reproduction),
distribution, derivation, display, and public performance (directly, digitally
or by telecommunications). The attempt to balance the rights of copyright
owners and the needs of researchers is provided for in the various
exemptions found in Sections 107 through 121 of the Copyright Law. Of particular importance to students and
educators are Section
107: The Fair Use Exemption and Section
110 The Face-to-face Teaching Exemption of The U.S. Code Title 17
(aka The Copyright Law). These portions
of the copyright law provide educators and researchers (students) for the reasonable
use of copyrighted materials without permission from the copyright owner.
For more information on Copyright see Circular 1
Copyright Basics from the Library of Congress Copyright Office and for
more in-depth study of the Copyright law as it relates to Educators see Circular 21
Anything that fits into one of these eight
categories is copyrightable works:
1) literary works (not
limited to literature)
2) musical works
3) dramatic works
4) pantomimes and
choreographic works
5) pictorial,
graphics, and sculptural works
6) motion pictures and
other audiovisual works
7) sound recordings
and
8) architectural works
These apparent narrow classifications are in
fact interpreted very broadly and cover pretty much anything the human creative
intellect can come up with. For instance
computer programs fall under the category of “literary works” and can be
registered with the copyright office.
What is Protected By Copyright?
Copyright protects the original expression of
an idea in a fixed medium. The emphasis
is on expression. The work must
exist in some physical tangible form.
But this can be just about anything, the RAM on your computer, e-mail,
software code, magnetic or digital video or audio recording, your lecture notes
and PowerPoint slides even a note scribbled on a napkin. It only requires a modicum of originality and
a minimal level of creativity.
What Cannot Be Protected By Copyright?
According to section 102 of Title
17 copyright protection does not extend to ideas, procedures, processes,
systems, methods of operation, concepts, principles, or discoveries, regardless
of the form in which they are described, explained, illustrated, or embodied.
In other words facts, ideas and slogans cannot
be copyrighted; only the expression
of ideas. A live performance such as a
lecture or a sermon or a concert cannot be copyrighted. The video tape or audio tape of the concert
is copyrighted as is a transcript of a lecture or sermon.
The quality of a work, its aesthetics,
similarity to another work and even the amount of effort (or lack thereof) put
into creating a work is irrelevant to copyright protection. Copyright rewards originality, not
effort.
A good example of similarity is the oft told
tale of forbidden love. It has been
retold over and over again in a variety of scenarios as in Romeo & Juliet
vis-à-vis West Side Story. The theme is
not copyrightable but the details reinvented with each new telling are.
A good example of effort viz
a viz creativity is a telephone book. A
telephone book takes a great deal of effort to create but cannot be copyrighted
because it is only a list of facts - names, addresses and phone numbers.
On the other hand a subject arrangement of those same facts are copyrighted
because there exists some creativity -- minute though it may be -- in the
development of a subject listing of names, address and phone numbers.
When is it OK to use other people’s material
without permission? The first thing to
do is determine if the work is in the public domain. If it is, you’re free to duplicate,
distribute, derive, display, and perform publicly. If it’s not in the Public Domain, then you
have the option of defending your use with one of the exemptions or you must
pay the piper (copyright owner) or don’t use it.
How do you know if it’s in Public Domain? It’s in the public domain if it’s in the FRIDGE of course.[1]
Facts
Recipes
Ideas
Dedicated works
Government works (
Expired Works
F is for Facts. Any fact, historical, scientific,
biographical, news reports are Public Domain.
News broadcasts maybe copyrighted but not the news itself. Facts cannot be copyrighted.
R is for Recipes. Recipes are really just an example of facts
it makes the mnemonic work, otherwise we’d have fidge. But it’s a good example of facts vis-à-vis creativity.
Because recipes are facts they are therefore
not copyrightable, there’s only one way to list the ingredients for the world’s
best chocolate chip cookie. Cookbooks on
the other hand maybe copyrighted especially the creative elements, like annotations
and pictures and special arrangement of the recipes, but the recipes themselves
within the cookbook are Public Domain.
Recipes and the like although not protected by copyright can be
protected to a degree by the intellectual property laws governing trade secrets.
I is for Ideas. Ideas cannot be
copyrighted. But, applied ideas can be patented
as long as they are novel, useful and non-obvious. But ideas themselves cannot be copyrighted so
copy away!
D is for Dedicated. Works maybe dedicated to the public
domain. You will sometimes see
statements to this affect on Web sites.
Dedicated works are those that the copyright owner explicitly
gives to the public domain as in “I grant this to the public domain” or words
very much to that effect. They may also
contain conditions (for instance only for nonprofit use). Like “This
chart may be freely duplicated or
linked to for nonprofit purposes. No
permission needed. Please include web address on all
reproductions of chart so recipients know where to find any updates.” However, if a work is clearly in the public
domain, yet it has a copyright notice on it, the notice is meaningless. Also, long elaborate copyright notices have
no bearing on Fair
Use.
G is for Government. All works published by officials of the
E is for Expired. Expired works are those which have reached
the limit of their copyright protection.
Unfortunately this is not always easy to determine. Mainly because the copyright laws have
changed over time and they are not retroactive.
However, on January 1, 2003 there was a shout of joy heard round the
world from archivists everywhere, because on that day a large number of unpublished
works entered the Public Domain.
What about older published works? That depends mostly on what copyright law was
in effect at the time of publication. If
you want to know, you can use the chart below.
Everything before 1923 is Public Domain unless it has been renewed. To find out if a work has been renewed, you
can pay the Copyright Office $20 per hour to do a search for you, you can hire
a private copyright search firm like Copyright Clearinghouse or you can conduct
a search yourself at the Library of Congress Copyright Office. For more information on investigating the
status of a copyrighted work see Investigating
Copyright Status .
“ll terms of
copyright run through the end of the calendar year in which they would otherwise
expire, so a work enters the public domain on the first of the year following
the expiration of its copyright term. For example, a book published on 15
March 1923 will enter the public domain on 1 January 2019, not 16 March 2018
(1923+95=2018).
Unpublished works when the death date of the author is not known may
still be copyrighted, but certification from the Copyright Office that it has
no record to indicate whether the person is living or died less than 70 years
before is a complete defense to any action for infringement. See 17 U.S.C. § 302(e).”
http://www.copyright.cornell.edu/training/Hirtle_Public_Domain.htm
For more information on when and how
copyrighted materials enter the Public Domain see Circular 15a “Duration of Copyright: Provisions of the Law
Dealing with the Length of Copyright Protection” and Circular 15t “Extension
of Copyright Terms” from the Library of Congress Copyright Office. This Fact Sheet (SL 15) will be helpful also “New terms for copyright
Protection”.
For additional help in your
understanding of Copyright terms and conditions for works published and
unpublished outside of the United States see the Public Domain Chart published by Cornell
Copyright Information Center.
You could also use the Digital
Copyright Slider, an online tool for very simply and easily
determining if a work used within the U.S. is protected by copyright or not.
Unfortunately (if you are the user),
fortunately (if you are the entrepreneur), even works that are in the Public
Domain can be protected against duplication, display, derivation, distribution
and public performance.
Physical inaccessibility is one type
of protection given to public domain materials.
For example on one of Todd Bolen’s archeological digs he uncovers a
scroll of the Book of Genesis written by Moses himself. This scroll is public domain because it was
written before 1883, but Todd is practicing the time honored tradition of
“finders’ keepers”. He’s got it locked
in a vault. If you can’t get to it, you
can’t use it!
Licenses and contracts are another
means of protecting public domain intellectual property. Licenses and contracts always supersede
copyright. Online Indexes and databases
have very explicit licensing agreements because much of the data is public
domain and it’s the only way they have of protecting their market. On the bright side though, as an innocent
third party, unless you have clicked or signed one, you are not responsible for
adhering to the license agreement signed by another party.
Encryption is also used to protect material that is
available to the public domain. At the
moment anything protected by encryption or by some type of technological
protection the work cannot be copied because it would require the breaking of
the code. It is illegal to circumvent
any technological controls protecting access to a work even if the work
protected by these measures is in the public domain. The same is also true of fair use -- it is
infringement to circumvent any access controls even if the work can be defended
as a fair use.
As
of March 1, 1989 a work is copyrighted the instant it becomes tangible. It is no longer necessary to register with the copyright office. However, it is still a good idea to file a
work with the Library of Congress Copyright Office in order to give the
copyright owner a stronger case in court and more money if someone infringes on
the work. A copyright
notice is also still a good idea because it discourages
infringement, it forestalls a claimant’s argument the he didn’t know it was copyrighted,
and it makes it easier to track down the owner to get permission to use it.
The
proper form for notice of copyright is the word Copyright the date(s) and the
author or owner’s name. Some foreign
countries still require the phrase “All Rights Reserved” but it is not
necessary in the
“no part of this book may be reproduced in any format or by
any means in part or in full without express permission of the copyright
owner”, etc, etc, etc. go ahead but, the only thing it might do is act as a
deterrent to infringers; it really has no legal merit. What does have legal merit is that the notice
should be noticeable; not hidden away in the fine print. The location of the copyright notice is
legally defined as “in such manner and
location as to give reasonable notice of the claim of copyright”.
For
more information on the Copyright Notice see Circular
3 from the Library of Congress Copyright Office.
The Fair Use Exemption is the primary defense
used by individuals who wish to legally duplicate, display, derive, distribute
or publicly perform copyrighted materials without the need to obtain permission
from the copyright owner. It is applied
very broadly by the courts, yet the law itself is very brief. Here it is in its entirety:
Sec. 107. - Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106
and 106A, the fair use of a copyrighted work, including such use by
reproduction in copies or phonorecords or by any other means specified by that
section, for purposes such as criticism, comment, news reporting, teaching
(including multiple copies for classroom use), scholarship, or research, is not
an infringement of copyright. In determining whether the use made of a work in
any particular case is a fair use the factors to be considered shall include -
(1) the purpose and character
of the use, including whether such use is of a commercial nature or is for
nonprofit educational purposes;
(2) the nature of the
copyrighted work;
(3) the amount and
substantiality of the portion used in relation to the copyrighted work as a
whole; and
(4) the effect of the use upon
the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of
fair use if such finding is made upon consideration of all the above factors
These four factors are weighed by the courts to
determine whether or not a work qualifies for fair use protection. There is no
definitive yes or no to fair use. For
each situation and every circumstance all four factors must be weighed. An unfavorable use in one factor does not
automatically mean the work cannot be used.
As users you can analyze these four factors yourself to determine the
likelihood of your use qualifying as fair use or not. The risk to you is related to the amount of
fines you might have to pay in the event you loose a law suit. The key to reduced liability relates
directly to your ability to present proof of a “good faith effort”. To that end it is important that you keep a
record of your fair use analysis to establish your “reasonable and good-faith”
attempts to apply fair use. If fair use
does not apply, you must get permission from the copyright owner or don’t use
the material.
Thanks to Dwayne Buttler and Kenneth Crews a Fair Use Checklist has been devised
at the Copyright Management
Center of Indiana University. They
have made this checklist available to anyone who desires to use it. This tool has been designed “to help educators… focus on the
circumstances that are important to the evaluation of fair use and [to provide]
a means for recording your decision-making process”. The checklist is derived from the four
factors and from the judicial decisions interpreting copyright law. In using the Fair Use checklist, check all
the pertinent issues whether in favor of or opposed to fair use. Sometimes, some issues will weigh more than
others.
This and
other
fair use calculators are available online and can be consulted as an aide in
ascertaining whether or not your use is a defensible fair use. However, none of them should be consulted
without first understanding the fair use factors themselves and how they relate
to one another.
Let’s take a closer look.
The four fair use factors are Purpose and character of the use of
the work being copied, The Nature of
the work, the Amount and
substantiality of the portion being used in relation
to the whole, and the Effect of the
use on the Market.
PURPOSE
The first factor to consider is the Purpose and
character. That is, what are you going
to use it for? Is it for educational
use, news reporting or criticism? The
law specifically state's “…the fair use of a copyrighted work,
… by …teaching … scholarship, or research, is not an infringement of
copyright.” Educational use especially
in a nonprofit institution weighs in favor of Fair Use.
Uses likely to favor Fair Use
• Nonprofit Educational
• Teaching
• Transforming
• Parody
• Criticism
• News reporting
• Restricted access
Uses likely to oppose Fair Use
• Commercial
• Entertainment
• Bad-faith behavior
• Denying credit to original author
If it is a commercial use, you need to consider
whether or not you are duplicating or transforming the work. The courts favor transformation of a work
over exact duplication. Are you making a
derivative of the original or are you making something quite creative that is
different than the original intended purpose?
Restricted
access is particularly important when uploading material onto a Web page. Restricting access to only your students and
only for a limited period of time will weigh in favor of your freedom to use
it.
NATURE
The next
factor to weigh is the Nature of the work.
The more creative and artistic the original the less favorable it is to
Fair Use. Also unpublished works are
less favorable than published works.
Facts cannot be copyrighted so the more factual the copyrighted work the
greater the work favors Fair use.
Uses likely
to favor Fair Use
• Factual
• Nonfiction
• Important to educational objectives
• Published
• Out of print
Uses likely
to oppose Fair Use
• Creative (music, poetry, play scripts, fictional novels,
short stories, paintings and the like)
• Fictional
• Artistic
• Unpublished
AMOUNT
How much of
the work is being copied? A small
percentage of the work in relation to the whole will find favor with Fair Use, but
only if that small percentage is not the heart of the work.
Uses likely
to favor Fair Use
• Small percentage
• Portion not central or significant to entire work
• Portion appropriate for educational objectives
Uses likely to oppose Fair Use
• Substantial in proportion to the whole
• Heart of the work
Here are
some examples explaining the “heart of the work”. The famous segment of the I Love Lucy show in
which Lucy is working in the chocolate factory is a classic scene and worth a
fortune to the copyright owners. So
although it is only a few minutes out of the whole episode it is the heart of
not only that particular episode but of the entire Lucy show and if you want to
use it you must pay a fortune for it.
The chariot race from Ben Hur again a very
small percentage of the whole movie but it has come to be symbolic of the whole
and using it would weigh against fair use.
MARKET EFFECT
Market
Effect is linked closely with Purpose.
If your purpose is commercial than market effect is presumed. Many works are being marketed to the academic
community and it is being argued that even educational uses have direct adverse
market consequences and so duplicating these materials maybe unfavorable to Fair
Use.
Harm to the potential
market must also be considered. It does
not matter that a market does not currently exist only that it could exist and
be hurt.
Uses likely
to favor Fair Use
• Does not hurt the current market or the potential market
(does not compete in sales of the original)
• Copy is not a substitute for the original
• Limited copies made
• Copy is not for sale or widely distributed
• Copy is not published or posted online
• No similar product on the market
• Original is lawfully acquired
•
Lack of licensing mechanism
• Parody – has different market
• Cannot get permission (efforts must be documented)
Uses likely
to oppose Fair Use
• Hurts the market or POTENTIALLY hurts the market (competes in sales of
the original)
• Copy can substitute for the original
• Numerous copies made
• Work is widely distributed or electronically made available to
the world
• Repeated or long-term use
• Affordable permission available
• Reasonable licensing available
Remember all
four factors apply. A negative mark in
one area does not mean Fair Use does not apply.
On the other hand one positive mark in favor of Fair Use does not mean
Fair Use does apply. You will discover
when you fill out your checklist that some items tend to weigh more heavily
than others and sometimes they negate each other. For instance, it’s a small portion but it’s
the heart of the work. And although the
courts have said that all four factors are equal, the reality is that market
effect weighs more heavily than any of the others.
So, is your
use Fair Use? You’re asking the wrong question. Rather you must ask “In good faith is it
likely to favor fair use? By evaluating
these four factors, the best you can hope for is to demonstrate a
“reasonable and good faith effort” for a favorable fair use defense. A definite “Yes” or “No” to fair use can only
be determined by the courts. If you get
sued and your use is found to be unfavorable
to fair use and you cannot
demonstrate a “good faith effort” in applying the four fair use factors, your
fines will be the highest allowed by law ($30,000 per incident).
However, if
you can demonstrate a “good faith effort” in applying the four
fair use factors and you get sued and your use is found unfavorable your
fines will be minimal ($300 maximum fine).
It may even be that you won’t be fined at all (this is only true for
employees or agents of nonprofit educational institutions, libraries, or
archives acting within the scope of employment). If you as an educator can demonstrate that
you made those copies in good faith believing that yours was fair use, you may
not have to pay a fine at all even if the courts decide it is NOT fair use.
One other
aspect to keep in mind is that it is illegal to circumvent any technological
controls protecting access to a work even if the work protected by these
measures qualify for fair use.
So what
happens when fair use does not apply?
Get Permission or don’t use it.
For more information about Fair Use see the
Library of Congress Fact Sheet (FL 102) “Fair Use” and Circular 21 “Reproduction
of Copyrighted Works by Educators and Librarians”.
There is also the First Sale Doctrine from section 109a which
permits the sale or disposal of a copy lawfully obtained.
“Notwithstanding the provisions of section 106(3),
the owner of a particular copy or phonorecord lawfully made under this title,
or any person authorized by such owner, is entitled, without the authority of
the copyright owner, to sell or otherwise dispose of the possession of that
copy or phonorecord.”
This is the part of the copyright law that says
if you legally obtain a copyrighted item you may sell it or give it as a gift
or tear it up into little pieces, but it does not permit the duplication of
that item.
This document is provided as a courtesy of the
For further information and updates please visit http://www.copyright.iupui.edu/. This document last updated March 10, 2003.
Face-to-Face Teaching Exemption and TEACH Act
In addition to the Fair Use exemption, of importance to those who teach in a professional capacity is the Face-to-Face Teaching exemption (section 110 of Title 17). In summary this exemption allows for legally reproduced work (e.g., articles, small portions of books, short video clips) to be used in a classroom or similar place devoted to instruction in the course of face-to-face teaching activities of a nonprofit educational institution and expands exemptions to educators for digital transmission of public displays and performances. The exemption applies as long as there is no direct or indirect admission charge, it is a regular part of the instructional activities and it is directly related to the teaching content. This means you cannot show a video that has nothing to do with your course or copy a cartoon onto a transparency or PowerPoint slide show or even put it in the syllabus just to entertain your students. It must relate to the course content.
The
TEACH Act (§ 110(2); 112 (f)) permits a work to be
transmitted via a digital network in an amount comparable to that which is
typically displayed in the course of a live classroom session. The transmission must be made at the
direction of the instructor; it must be an integral part of a class session, is
offered as a regular part of the instructional activities and is directly
related to the teaching content. The
transmission must be limited to students officially enrolled in the
course. Informational materials must be provided
to faculty and students that accurately describe, and promote compliance with,
the copyright law. And each instructor
must provide notice to students that materials used in connection with your
courses may be subject to copyright protection.
There are more conditions but those relate specifically to our DEEP program.
Here’s
a suggested notice that you can use for all your courses and even on any
digital resources that you provide to your students: “These materials are made
available at this site for the educational purposes of students enrolled in
[course name] at The Master’s College.
The materials may be subject to U.S. Copyright law and further
reproduction or transmission may be prohibited.
For more information concerning § 110. Limitations on exclusive rights: Exemption of certain performances and displays, visit these Web pages
http://www.copyright.iupui.edu/sec110(1).htm;
and
http://www.copyright.iupui.edu/sec110(2).htm;
So
what about the Web? When it comes to
using intellectual property from the Internet you will need to concern yourself
with copyright and trademark law but
you don’t need to worry about patent or trade secret laws.
The
law is way behind technology. The fair
use doctrine is intended to be flexible enough to accommodate a variety of
situations and unforeseen scenarios.
But to date, none of the existing case law related to the Internet tells
us much about fair use or educational purposes.
We must therefore apply what we do know and attempt to make the best
judgment. To that end we should treat
the Internet no differently than any other tangible form of expression even if
there is no copyright notice in sight and the author cannot be identified.
Here
are some suggested applications of the four factors that would likely favor
Fair Use. These have not been tried in court but could serve as a demonstration
of your “good faith effort” if it comes to that.
·
Purpose: Limiting access to your students or fellow classmates only or by
password can demonstrate educational purpose.
·
Nature: Use nonfiction, scientific over fiction or motion pictures.
·
Amount: The shorter the better; use only what is appropriate for the
educational purpose.
·
Market effect: Reduce it by limiting access to the system, limit to one
semester, use only news or academic works, use
materials not easily available for purchase.
·
Place a notice: “These materials are made available at this site for the
educational purposes of students enrolled in my class at The Master’s
College. The materials are subject to
U.S. Copyright Law and are not for further reproduction or transmission.”
·
Ask
your students and fellow classmates to respect the law or risk losing the
opportunities for creative teaching in the future.
There
are two new laws that affect copyright, the Internet and education. These are the
Digital Millennium
Copyright Act (DMCA) and the TEACH Act. The TEACH Act has been incorporated into the copyright
law as a revision of Section 110(2).
Visit Copyright
and Distance Education at the Copyright Management Center of IUPUI for
information about the TEACH ACT and Stanford’s Copyright
& Fair Use site for information on the DMCA.
An employee who creates a work within the scope
of his or her employment produces a “work for hire”. The copyright of a work for hire is owned by
the employer. However, this is
not automatic. A “work for hire” must
be written into the contract. This
is an important issue for faculty to consider.
The contract with your institution may supersede your copyrights as
regards your research and writing. If
this has not been put into writing, perhaps it is something that ought to be
addressed to protect both parties.
For more information about “work for hire” see
the Library of Congress Copyright Circular 9 “Works Made for Hire under the 1976 Copyright
Act”.
What about copyright outside of the
Circular 38a from the
Library of Congress Copyright Office will provide more information on
International Copyright Relations of the
For additional help in your
understanding of Copyright terms and conditions for works published and
unpublished outside of the
International Treaties & Conventions
· Berne Convention
for the Protection of Literary and Artistic Works
· Collection
of Laws for the Electronic Access of Works From the World Intellectual Property Organization,
electronic archive of international intellectual property legislation.
· Convention for the
Protection of Producers of Phonograms (1971)