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library reference guides: Copyright & fair use information
 
 


"Copyright. It's many things ...

To publishers, it's a means to ensure a return on the creative dollar.
To librarians, it's a guarantee to provide information that 'promotes the sciences and useful arts.'
To educators, it's a pain in the neck."

-- The Southwest Group, Copyright Bay


COPYRIGHT LAW

What is copyright?

It is an "intellectual" property right, defined as the exclusive right of a creator to reproduce, prepare derivative works, distribute, perform, display, sell, lend or rent his/her creation(s).

What does copyright NOT protect?

Copyright does not protect ideas, titles, names, short phrases, works in the public domain, mere facts, logos and slogans (these are protected by trademark), blank forms that collect information rather than provide it, and URLs, (i.e., links to a web site)

What does copyright protect?

Copyright protects "forms of expression," (e.g., poetry, prose, computer programs, artwork, written or recorded music, animations, movies and videos, java applets, web pages, architectural drawings, photographs, and more ...)

UNITED STATES CONSTITUTION

Article I, Section 8, Clause 8
"The Congress shall have power ... 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."

As set forth in the Copyright Act, the copyright owner has been granted five rights:

  1. The right to reproduce the copyrighted work.
  2. The right to prepare derivative works based upon the original(s).
  3. The right to distribute copies of the work.
  4. The right to perform the work publicly.
  5. The right to display the work publicly.

NON-INFRINGING USES INVOLVING COPYRIGHT

If you work at a non-profit educational institution, you are allowed to use copyrighted work, in certain limited circumstances, without making payment or seeking permission from the copyright holder.

SECTION 107: FAIR USE EXEMPTION

Educators are allowed exemptions under the "Fair Use" doctrine, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use) and scholarly research.

This is a controversial idea that has grown out of 200 years of court rulings in U.S. history. When Congress passed the 1976 Copyright Act, it was loathe to define FAIR USE, saying, "there is no disposition to freeze the (fair use) doctrine in the statute, especially during a period of rapid technological change." However, Congress did provide certain basic "criteria" to determine what use was "fair." The 1976 Copyright Act set forth four "provisions" by which copyrighted materials could be used in non-profit educational settings. Remember, these are guidelines only; the Copyright Act doesn't set quantitative limits on what can be copied. In determining if "fair use" has been violated, courts try to answer the following four questions, based on the four provisions of the law:

  1. Is the purpose or character of use commercial or non-profit (i.e., educational)?
  2. Is the nature of the copyrighted work creative or informational (i.e., factual)?
  3. What is the amount and substantiality of the portion used in relation to the copyrighted work as a whole? (Rule of thumb: use no more than is necessary. For small poems, perhaps the entire work; for larger works, only a small amount; but NEVER copy the "heart" or "creative essence" of a work -- that's infringement!)
  4. What is the effect of this use on the potential market for, or value of, the copyrighted work? (This is the most important question of the four; did the copying or use deprive the copyright holder of a sale? Copying should not harm the commercial value of the work.)

SINGLE COPIES FOR CLASSROOM USE

Fair use guidelines allow teachers to make single copies of the following:

  • A chapter from a book
  • An article from a periodical or newspaper
  • A short story, short essay, or short poem, whether or not from a collective work
  • A chart, graph, diagram, drawing, cartoon, or picture from a book, periodical or newspaper

SINGLE COPYING IN LIBRARIES

 For research purposes, a teacher may select books, magazines or journal articles, or other documents, to be placed "on reserve" in the library, which functions as an extension of the classroom.

Students may borrow these materials and make single copies on machines that are plainly marked with notices citing protection of the works under the Copyright Act. The students, as users of self-service photocopiers, are held accountable for any copyright violations.

Libraries may also make single copies for use "on reserve," but ONLY at the request of a faculty member. At the end of the semester, these copies must be returned to the faculty member. MULTIPLE COPIES FOR CLASSROOM USE Fair use guidelines allow teachers to make multiple copies with the following limitations:

  • The copying MUST be done at the initiative of the teacher (at a moment of inspiration, when it is unreasonable to get permission from the copyright owner). NOTE: If you have time to seek a publisher's reprint, or get permission, you are obligated to do so. It is only if you do NOT have time that "fair use" allows you to make copies for students.
  • Only one copy is made for each student.
  • No charge is made to the student except to recover the cost of copying.
  • The copying is done for only one course.
  • The same item is NOT reproduced from term to term.
  • No more than one work is copied from a single author.
  • No more than three authors are copied from a single collective work (e.g., an anthology).
  • No more than nine instances of multiple copying occur during a single term or semester.
  • For an article, the limit is 2,500 words.
  • For a longer work of prose, the limit is 1,000 words, or 10% of the work, whichever is less.
  • For a poem, the limit is 250 words.
  • For a longer poem, an excerpt of no more than 250 words.
  • For a chart, diagram, cartoon or picture, the limit is no more than one from a book, periodical or newspaper.
  • "Consumable works," (e.g., workbooks and standardized tests) shall NOT be copied.

COURSEPACKS

The practice of creating "Coursepacks" of selected readings for students to use in their coursework is surrounded by controversy. It's probably an issue that falls more properly under the category of making multiple copies. In any event, under the law, coursepacks may be:

  • Limited for brevity
  • Limited to one semester or term
  • Limited to non-profit educational settings
  • Subject to acquisition of permissions or licensing

OFF-AIR RECORDING OF BROADCAST PROGRAMMING FOR EDUCATIONAL PURPOSES

A broadcast program may be recorded off-air simultaneously and retained by a non-profit educational institution for 45 days after date of recording. After than, it must be erased or destroyed. Use of the copy is restricted to educational settings where it may only be used once. Requests must come from individual teachers. Other restrictions apply.

SOFTWARE COPYING

Software owners are permitted to make a back-up archival copy of software in the event the original disk fails to function. Such back-up copies are not to be used on a second computer at the same time the original is in use.

PUBLIC PERFORMANCE EXEMPTION

When an educator presents to students an AV, audio-visual work (e.g., video, VHS tape, laserdisc, DVD movie, 35mm slide, filmstrip, or 16mm movie), we are talking about "Performance and Display." An AV work is a form of expression and, as such, is protected by copyright.

The 1976 Copyright Act allows teachers to share AV works with students in a face-to-face teaching situations only. AV works may NOT be transmitted to other schools or locations without permission of the copyright holder .

This all but rules out distance education as a venue for the performance of AV works. Transmission of an AV work may be permissible over closed circuit television to classrooms located within the same building.

In similar situations, the performance of nondramatic literary or musical works is permitted, IF the performance or display is a regular part of systematic instructional activities, IF it is directly related to teaching content of transmission, IF the setting is normally devoted to instructional activities, or IF it is sited to accommodate persons with disabilities.

Assuming the purpose is curricular and the setting is face-to-face, two additional criteria apply:

  • The performance of the AV work must meet the instructional objective, and
  • The AV work must be a "lawfully made" copy.

Any other type of performance or display is potentially an infringement. This means you CANNOT perform a popular video to students as a reward for hard work, or as an extracurricular activity.

AV COPYING and FAIR USE

"Fair Use" and "Performance and Display" are distinct from each other in the 1976 Copyright Act. When an educator perceives the need to copy a portion of an AV work to be used in an instructional situation, we are talking about "Fair Use," and that means DUPLICATION, a real "hot button" for video owners and distributors.

Remember that it is illegal to copy an entire AV work or to convert it to another format. For example, you CANNOT copy a 16mm film onto VHS videotape, even if the title is not available to buy in VHS format. You CANNOT copy a 3/4-inch videotape onto VHS tape, nor can you copy a laserdisc onto videotape.

If you intend to copy any AV item, the best advice is: always seek permission from the copyright holder. Copying AV materials without first gaining permission is subject to challenge under the "Fair Use" doctrine. If you cannot get permission in time, and you do go forward with your copying decision, remember to abide by the four "fair use" criteria for copying. Use only the smallest amount necessary to meet the instructional objective of your course and avoid using the "creative essence" of the copyright work. Finally, be advised that the definition of the "heart" or "creative essence" of a work may differ markedly from user to creator.

If you contemplate taking a small portion of a video to incorporate into a multimedia work, read on.

FAIR USE GUIDELINES FOR EDUCATIONAL MULTIMEDIA

Multimedia involves the integration of text, graphics, audio and/or video into a computer-based environment.

Issues of copyright infringement are growing along with growth of the World Wide Web on the Internet.

Seen from one perspective, the inclusion of others' works into a multimedia program violates the copyright holder's fundamental right to create "derivative" works. But from another perspective, an educator is merely exercising fair use privileges to utilize small protions of relevant works to fulfill a legitimate teaching objective.

Following are fair use guidelines for educational multimedia, developed in 1996 by CONFU, (Conference on Fair Use) a group of educators, attorneys, publishers, librarians and others, convened by the Clinton Administration:

  • Students may incorporate others' works into their multimedia creations and perform and display them for academic assignments.
  • Faculty may incorporate others' works into their multimedia creations to produce curriculum materials for educational use. (NOTE: Faculty may retain these multimedia products incorporating the copyrighted works of others for a period of two years. After that, permission must be sought.)
  • Faculty may provide for multimedia products using copyrighted works to be accessible at a distance (i.e., distance learning), provided that only those students may access the material.
  • Faculty may demonstrate their multimedia creations at professional symposia and retain same in their own protfolios.
  • For motion media (e.g., video clips), use is limited to 10%, or three minutes, whichever is less.
  • For text, use is limited to 10%, or 1,000 words, whichever is less.
  • For poems, use is limited to 250 words, three poems per poet, and five poems by different poets from an anthology.
  • For music, use is limited to 10%, or 30 seconds, whichever is less.
  • For photos and images, use is limited to five works from one author and 10%, or 15 works, whichever is less, from a collection.
  • For database information, use is limited to 10%, or 2,500 fields, or cell entries, whichever is less.

FAIR USE GUIDELINES FOR DISTANCE EDUCATION

 Members of CONFU could not reach consensus on fair use guidelines for distance education. Following are SUGGESTIONS for what is permissable for display in a distance education setting:

  • Text.
  • A photograph, chart, map or graph.
  • A computer screen display (static, not moving).
  • An illustration.
  • A single still frame from a video, videotape, laserdisc, or DVD.
  • Portions of audio from non-dramatic music.

Following are SUGGESTIONS for what is NOT permissable in distance education (without first seeking and receiving permission from the copyright holder.)

  • Full motion video or audio from a videotape, a laserdisc, DVD, video file on a computer (even though the digitization of that video may be fair use. The performance and display in distance education is still not allowed.)
  • Consecutive images from a slide set, filmstrip, or 16mm movie.
  • Audio from a dramatic work (e.g., "South Pacific").
  • Live performance of a play or musical.

Important "rule of thumb" for distance education:

If it moves, it's NOT ALLOWED! Proceed from the basic assumption that under no circumstances can performance of audio-visuals or dramatic works be sanctioned in distance education without permission from the copyright holder.

SECTION 108: LIBRARY/ARCHIVE EXEMPTION

Exemptions are given to libraries and archives for limited reproduction and distribution of copyrighted materials.

NOTE: These exemptions do not apply to musical works, pictorial, graphic or sculptural works, or motion picture or other A/V works, with the exception of news reporting.

A library or archives or any of its employees, acting within the scope of employment, can reproduce a single copy or phonorecord or work and distribute such copy or phonorecord under this section if:

  • Copy is made without purpose of direct or indirect commercial advantage.
  • Library or archive collections are open to the public or available to affiliated researchers and other researchers in the specialized field.
  • Reproduction or distribution includes Notice of Copyright.

SUMMARY OF LIBRARY PROVISIONS OF SECTION 108

108 (b) Unpublished works currently in the collection can be duplicated in facsimile form for preservation and security or for deposit for research use in another library or archives which is open to public.

108 (c) Items in the collection which are published (copy or phonorecord) and have been damaged, lost, stolen or are deteriorating may be duplicated in facsimile form IF the library has made a reasonable effort to purchase an unused replacement at a fair price and has been unsuccessful.

108 (d) A single copy of an article or contribution to a copyrighted work may be made for a user IF he requests it, IF it is the only item from that copyrighted collection or periodical issue, IF the copy becomes the property of the user, IF the library has no notice that the copy will be used for any purpose otheer than private study, scholarship or research, and IF the library displays the "Warning of Copyright Statement" prominently where orders are taken and on the order form.

108 (e) An entire work may be copied and distributed by a library/archive IF it is part of a library collection, IF the library/archives first determines after reasonable investigation that the copy or phonorecord cannot be obtained at a fair price, IF the copy or phonorecord becomes the user's property, IF the library/archives has no notice that the copy/phonorecord will be used for any purpose other than private study, scholarship or research, and IF the library/archives displays prominently the "Warning of Copyright Statement."

108 (f) Library employees are not liable for copyright infringement for unsupervised use of reproducing equipment located on library premises IF the equipment displays a notice that making copies may be subject ot copyright law.

108 (g) Library employees may be liable IF they are aware or have a substantial reason to believe that systematic reproduction or distribution of multiple copies is intended. Interlibrary Loan is acceptable as long as it does not have the purpose or effect of substituting for subscriptions or purchase of the work in question.


NOTE: The above textual material is intended to provide general information as it applies to copyright and fair use in a non-profit and educational setting. It is NOT to be construed as legal opinion nor relied upon as a substitute for otaining legal advice from a licensed attorney.

The information printed on this Web Page has been excerpted, with permission, from two basic sources:

  • Notes and other information supplied by Professor Marsha L. Baum, formerly Associate Professor of Law and Law Librarian, University of South Carolina Law School, and currently Law Librarian, University of New Mexico.

  • Text from the Internet site, Copyright Bay (no longer active), created by The Design and Development Team of Janet Agnew, Glen "McKay" Gummess, and Mike Hudson, graduate students in Educational Technology Leadership at The George Washington University.

RECOMMENDED WWW COPYRIGHT SITES

Last modified Tuesday January 17, 2006

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