Copyright and Fair Use

Copyright Icon

What is Copyright?

Copyright law ensures that authors or creators have exclusive rights to protect their creative efforts. The item protected must be a tangible one, whether it be a book, periodical article, poem, software, multimedia work, recording, work of art, web site, digital audio or video file, digital image, or any other publication. The item must also be creative; an alphabetical list of facts would generally not be copyrighted while a creative compilation of those same facts would be protected.

The 1976 Copyright Law of the U.S. (Title 17, U.S. Code) provides basic protection for original works of authorship. Section 106 of the Copyright Law gives the copyright owner the exclusive right to reproduce, distribute, perform, display, or license his or her work, or to produce or license derivative copies of his or her work.

As new technologies associated with the Internet have evolved and distance education initiatives have expanded, copyright laws developed in 1976 have become increasingly inadequate. In 1988 the United States signed the amended Berne Convention for the Protection of Literary and Artistic Work, an international copyright treaty. Changes brought by the Berne Convention included greater protection for copyright holders, copyright relations with other countries, and the elimination of a requirement of copyright notice on a protected work.

In 1998 the Digital Millennium Copyright Act of 1998 was signed into law by President Clinton. Its primary purpose was the implementation of two World Intellectual Property Organization (WIPO) treaties that extended the same copyright protections to foreign works as to domestic ones. Other provisions of the law include:

  • new prohibitions concerning the circumvention of encryption, scrambling or any other technological locks used by copyright owners to protect their works,
  • limited liability of higher education institutions serving as online service providers for copyright infringement by faculty members or graduate students, and
  • required the Registrar of Copyrights to submit recommendations to Congress for balancing distance education information needs with the the rights of copyright owners.

The TEACH Act became law on November 2, 2002. The law was supported by the higher education community and libraries, and carries out recommendations made by the U. S. Copyright Office. The legislation supports distance education by expanding the materials that may be used, allowing educators to deliver course content outside of the classroom, providing authority to archive copies of distance education course materials, and the right to convert some materials to digital formats. The TEACH Act also carries restrictions on access and copying, limits on the quantity of works that can be digitized, as well as other restrictions. The University of Texas Coyright Crash Course includes a checklist of criteria for meeting the TEACH Act.

The U.S. Copyright Office provides further information about Copyright Basics.

Table of Contents 




What is Fair Use?

Faculty and students have "fair use" rights to use copyright-protected works for educational activities. The goal is to enable teachers and scholars to use copyrighted materials for teaching, scholarship, and research, balancing those needs with respect for the rights of copyright holders.

The Copyright Law of 1976 outlines conditions that constitute fair use for research and education but does not define fair use. Section 107 lists four factors that a court will consider in determining fair use. The factors 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 use, and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

Fair use guidelines were developed by an ad hoc committee convened by the House Judiciary Committee in 1976 during deliberations on the Copyright bill. They were endorsed by the Conference Committee and included in the conference report that accompanied the bill. These guidelines are considered to be an authoritative interpretation of fair use in relation to photocopying of books and periodicals for educational use:

 

AGREEMENT ON GUIDELINES FOR CLASSROOM COPYING IN NOT-FOR-PROFIT EDUCATIONAL INSTITUTIONS -- WITH RESPECT TO BOOKS AND PERIODICALS

The purpose of the following guidelines is to state the minimum and not the maximum standards of educational fair use under Section 107 of H.R. 2223. The parties agree that the conditions determining the extent of permissible copying for educational purposes may change in the future; that certain types of copying permitted under these guidelines may not be permissible in the future; and conversely that in the future other types of copying may not permitted under these guidelines may be permissible under revised guidelines.

Moreover, the following statement of guidelines is not intended to limit the types of copying permitted under the standards of fair use under judicial decision and which are stated in Section 107 of the Copyright Revision Bill. There may be instances in which copying which does not fall within the guidelines stated below may nonetheless be permitted under the criteria of fair use.


I. Single Copying for Teachers

A single copy may be made of any of the following by or for a teacher at his or her individual request for his or her scholarly research or use in teaching or preparation to teach a class:

A. A chapter from a book;

B. An article from a periodical or newspaper;

C. A short story, short essay or short poem, whether or not from a collective work;

D. A chart, graph, diagram, drawing, cartoon or picture from a book, periodical, or newspaper.


II. Multiple Copies for Classroom Use

Multiple copies (not to exceed in any event more than one copy per pupil in a course) may be made by or for the teacher giving the course for classroom use or discussion; provided that

A. The copying meets the tests of brevity and spontaneity as defined below; and,

B. Meets the cumulative effect test as defined below; and,

C. Each copy includes a notice of copyright.

Definitions
Brevity

(i) Poetry: (a) A complete poem if less than 250 words and if printed on not more than two pages or, (b) from a longer poem, an excerpt of not more than 250 words.

(ii) Prose: (a) Either a complete article, story or essay of less than 2,500 words, or (b) an excerpt from any prose work of not more than 1,000 words or 10% of the work, whichever is less, but in any event a minimum of 500 words.

[Each of the numerical limits stated in "i" and "ii" above may be expanded to permit the completion of an unfinished line of a poem or of an unfinished prose paragraph.]

(iii) Illustration: One chart, graph, diagram, drawing, cartoon or picture per book or per periodical issue.

(iv) "Special" works: Certain works in poetry, prose or in "poetic prose" which often combine language with illustrations and which are intended sometimes for children and at other times for a more general audience fall short of 2,500 words in their entirety. Paragraph "ii" above notwithstanding such "special works" may not be reproduced in their entirety; however, an excerpt comprising not more than two of the published pages of such special work and containing not more than 10% of the words found in the text thereof, may be reproduced.

Spontaneity

(i) The copying is at the instance and inspiration of the individual teacher, and

(ii) The inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission.

Cumulative Effect

(i) The copying of the material is for only one course in the school in which the copies are made.

(ii) Not more than one short poem, article, story, essay or two excerpts may be copied from the same author, nor more than three from the same collective work or periodical volume during one class term.

(iii) There shall not be more than nine instances of such multiple copying for one course during one class term.

[The limitations stated in "ii" and "iii" above shall not apply to current news periodicals and newspapers and current news sections of other periodicals.]


III. Prohibitions as to I and II Above

Notwithstanding any of the above, the following shall be prohibited:

(A) Copying shall not be used to create or to replace or substitute for anthologies, compilations or collective works. Such replacement or substitution may occur whether copies of various works or excerpts therefrom are accumulated or reproduced and used separately.

(B) There shall be no copying of or from works intended to be "consumable" in the course of study or of teaching. These include workbooks, exercises, standardized tests and test booklets and answer sheets and like consumable material.

(C) Copying shall not:

(a) substitute for the purchase of books, publishers' reprints or periodicals;

(b) be directed by higher authority;

(c) be repeated with respect to the same item by the same teacher from term to term.

(D) No charge shall be made to the student beyond the actual cost of the photocopying.

Section 110(1), referred to as the "classroom exemption," provides an exemption to the rights of the copyright holder for performances and displays in the classroom if certain face-to-face teaching conditions are met.

In 1981, a congressional subcommittee created guidelines for off-air taping of television and radio broadcasts for educational use. The guidelines allow educators to tape a radio or television broadcast for instructional use if the following conditions are met:

  • the program is recorded simultaneously with the broadcast
  • the program is being broadcast without charge
  • the program is recorded only in response to a specific request
  • the program is recorded (but not necessarily used) in its entirety
  • the program is not altered
  • the tape is retained by the educational institution for no longer that 45 days after the date of the recording
  • the tape is used only once with each class during the first ten consecutive school days of the 45-day retention period
  • the tape is used from the tenth to the 45th day of the retention period for teacher-evaluation purposes only.

Although courts have ruled in many fair use cases, no precise definition of fair use has emerged. Although some interpret the guidelines liberally as minimum examples of the intent of the law, rather than using them to set specific limits, it is safer to assume a more rigid interpretation, considering the ad hoc nature of the guidelines.

In 1994, as part of President Clinton's National Information Infrastructure initiative, the Working Group on Intellectual Property Rights in the Electronic Environment called for interested groups to participate in CONFU: The Conference on Fair Use. This group worked until 1997 to propose guidelines in the following areas:

Although much work was accomplished in the CONFU process, no consensus was reached, with copyright owners feeling they were giving too much away and users believing the guidelines were too restrictive. Some still use the proposed guidelines as a starting point but there is no guarantee that using the guidelines provides protection against a lawsuit. See CONFU: The Conference on Fair Use for more information.

The TEACH Act does not limit fair use; it still applies in the distance learning environment. Instructional performance, displays, students downloading course materials, and other aspects of distance education continue to be subject to fair use guidelines.

Table of Contents 




How to Register a Copyright

Under current law, works created after March 1, 1989, are protected whether or not a copyright notice is attached and whether or not the work is registered. "Copyright is secured automatically when the work is created, and a work is 'created' when it is fixed in a copy or phonorecord for the first time." 1

The U.S. Copyright Office Registration Procedures provides printable information circulars and forms for requesting copyright registration. You must have the Adobe Acrobat Reader installed in order to view some circulars and all forms.

Table of Contents 




What is Not Protected?

Works not protected by copyright law include:
  • Works that lack originality (compilations like the phone book)
  • Materials in the public domain
  • U.S. government publications
  • Ideas
  • Short phrases
  • Facts (unless they are presented in an original work such as a list of facts)

Table of Contents 





How to Obtain Permission

If the name and address of the copyright holder are not included, the information may be found by using the Internet or library reference sources. Many publishers' web sites provide information on how to obtain copyright permission. Acqweb provides addresses for book publishers (the site is dated but still includes useful links). You can check the Ulrich's Periodicals Directory from the libraries' reference section to find contact information for magazines and journals.

The Copyright Clearance Center provides a fee-based academic permission service for books and journal articles. If the work you want to use is registered you can get permission within several days.

When writing to a copyright holder for permission, include the following information:

  1. Title, author, editor, and edition of the materials to be duplicated
  2. Exact material to be used, including page numbers and chapters; a photocopy should be included if possible
  3. Number of copies to be made
  4. The use for which the copies are needed
  5. The manner of distribution; for classroom use, for use in a newsletter, etc.
  6. Indicate whether the material will be sold
  7. Type of reproduction (photography, photocopy, etc.)

You should include a self-addressed, stamped envelope and should give the publisher sufficient time to respond to the request. Some commercial copy services will obtain necessary permissions (for a fee) when producing course packs.

Check the U.S. Copyright Offices's Copyright Office Basics and the LSCC Library's list of Copyright and Fair Use resources for further information.

Table of Contents