Copyright and Fair Use
The following information is from UW Extension's excellent "Teaching Online: A Workshop for Faculty and Staff Development" guest lecture by Tracey Gladstone-Sovell, Ph.D. is a Professor and Chair of the Department of the Political Science at University of Wisconsin-River Falls.
When the United States Constitution was written in 1787, Congress was explicitly given the authority "To promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Laws enacted under this authority are now referred to as copyright and patent protection.
The following information is adapted from Copyright Basics, (http://www.copyright.gov/circs/circ1.html) U.S. Copyright Circular 1, September 2000 with updates from the Digital Millenium Copyright Act and the Technology Education and Copyright Harmonization Act.
There are two basic functions of copyright law. It allows the creator of a copyrighted work to:
- Control how that work is used.
- Earn a profit from a work of value.
In order to achieve these goals, copyright provides certain forms of protection to authors of "original works of authorship," including literary, dramatic, musical, artistic, and certain other intellectual works. It is based on federal law (title 17, U.S. Code), and gives to the owner of copyright (and/or to authorize others to have) the exclusive right to do the following:
- To reproduce the work in copies or phonorecords;
- To prepare derivative works based upon the work (examples include such things as translations, musical arrangements, motion picture versions, art reproductions, sound recordings, or any other form in which a work is recast or adapted);
- To distribute copies or phonorecrods of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
- To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;
- To display the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and
- In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.
Types of Works Protected (and not protected) by Copyright
Copyright protects "original works of authorship" that are fixed in a tangible form of expression. Today such works are often seen as forms of "intellectual property." The following commonly used categories of intellectual property used for educational purposes are covered by copyright law:
- literary works
- musical works; including any accompanying words
- dramatic works, including any accompanying music
- pantomimes and choreographic works
- pictorial, graphic, and sculptural works
- motion pictures and other audiovisual works
- sound recordings
- architectural works
If you can see, read, watch or hear it, the work is considered fixed and is most likely eligible for copyright protection.
However, not everything that might be considered an intellectual produciton is covered by copyright law. The following works are not protected by copyright:
- ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices
- collection of facts such as the white pages of the phone book
- works that have not been fixed in a tangible form of expression (for example, an improvisational speech that has not been written or recorded)
- titles, names, short phrases, and slogans
- familiar symbols or designs
- listings of ingredients such as recipes
- information that is common property such as calendars, height and weight charts, rulers
- federal government publication
Notice of Copyright
Since 1989, works no longer need to carry notice of copyright (such as the letter c in a circle) in order to be protected. Copyright is secured automatically when a work is created. Works are created when they are fixed in a medium such as a book, manuscript, videotape, sheet music, or CD. Digital works created on the internet are copyrighted automatically as well.
Pre-1978 published works must carry the copyright notice and be registered in order to be protected. Pre-1978 unpublished works (e.g., a letter, a diary) are protected, even without copyright notice.
Duration of Copyright and Materials in the Public Domain
Under current law, copyright lasts the life of the author plus seventy years. Materials produced prior to 1978 documents are protected for a maximum of 95 years, if they have been formally copyrighted. When a copyright expires, the work is said to have entered the public domain. Because the question of when a copyright expires can be a complicated issue, the University of North Carolina has created a web site to help determine when works pass into the public domain. Consult this table (http://www.unc.edu/%7EuncIng/public-d.htm) to learn more about when works pass into the public domain.
Penalties and Exemptions
Anyone who violates any of the rights provided by the copyright law may be held civilly or criminally liable. These rights, however, are not unlimited in scope. The most important exemption from copyright liability for educators is the fair use exemption established by section 107, title 17, U.S. Code.
The fair use exemption outlines certain situations when the reproduction of a particular work is considered "fair," and the distance education exemption outlines situations in which instructors in nonprofit educational institutions may transmit online non-dramatic written works and portions of dramatic works such as movies.
Fair use, outlined in section 107 , title 17, U.S. Code, allows copyrighted works to be reproduced for purposes of criticism, comment, news reporting, teaching, scholarship, and research. [http://www.copyright.gov/title17/92chap1.html#107]. Fair use applies to all formats (print, AV, digital, etc.) If a use of a copyrighted work is considered "fair," you do not need to pay royalties or obtain permission to use or reproduce the work. Section 107 is the "umbrella" exception that allows for use of copyrighted works in a variety of unpredictable situations and provides some flexibility in the application of copyright law. Because of this provision, students and faculty can copy articles, parts of books, material from the web, etc. for personal use and instructors can use copyrighted material in the classroom.
Section 107 sets out four factors that must be considered in determining whether or not a particular use is fair. Those factors are:
- the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
- the nature of the copyrighted work
- amount and substantiality of the portion used in relation to the copyrighted work as a whole
- the effect of the use upon the potential market for or value of the copyrighted work
All educational uses of copyrighted works are not necessarily fair. Each time a copyrighted work is used, a fair use analysis must be conducted using the four factors. Generally, if you are using a small amount of a published, factual work in an educational setting, and that use has no effect on the market for that work, your use is likely fair. It is the responsibility of all faculty, staff, and students to conduct a fair use analysis each time a copyrighted work is used, and to make a reasonable, good faith determination if the use is fair or not.
Although you must determine fair use on a case-by-case basis, some uses of copyrighted works clearly are not fair. Some examples of activities that would not pass a fair use analysis are:
- Copying large sections of a work (the "heart of the work") and distributing it to all students in a class or posting it online for students
- Combining a number of copyrighted works into a course pack and selling copies to students without obtaining permission or paying royalties
- Taping a movie or television show to show in class and retaining and using the copy indefinitely
- Duplicating an entire CD or video and keeping it or giving the copy to a friend
- Sharing copies of copyrighted music or software on the internet
- Obtaining a video on loan, duplicating it, and using it in class
General Rules for Complying with Fair Use
- Remember that you are affiliated with a not-for-profit educational institution
- Never post copyrighted materials for general access on the web
- Use materials that have been lawfully acquired (material that you or your institution has purchased, received as a gift, or leased).
- Maintain copyright notice and authorship identification. Give credit to the copyright owner.
Because the distinction between fair use and infringement may be unclear, you may want to refer to the U.S. Copyright Office's Fair Use Fact Sheet and the Final Report to the Commissioner on the Conclusion of the Conference on Fair Use .
In addition the Checklist for Fair Use from the Copyright Management Center is also helpful in conducting a fair use analysis http://copyright.iupui.edu/checklist.htm.
Recent Modifications of Copyright Law
Digital Millenium Copyright Act
The Digital Millennium Copyright Act (DMCA) was enacted in 1998. It was an effort to update copyright law to take into account digitally produced and reproduced materials. The act affects universities in their role as Internet Service Providers and Information Technology Providers. It requires that Universities take reasonable efforts to insure that the copyright protections applying to digital material are in place on their campuses. Further information on the educational impact of DMCA is provided by EDUCAUSE.
The U.S. Copyright Office also provides a summary of the DMCA legislation .
The newest revision of copyright law affecting universities is The Technology, Education and Copyright Harmonization Act, (TEACH Act) which became law in November 2002. It is particularly important for those teaching in an online environment.
The TEACH Act modifies existing copyright law to allow educators to use some copyright protected materials in distance education without gaining prior permission and/or paying royalties without violating copyright law. The general intention of the act was to make the same "fair use" criteria that apply to face-to-face educational contexts also apply to distance education.
The TEACH Act applies only to accredited educational institutions that have stated copyright policies which are made available to faculty, staff and students. In order to comply with the TEACH Act, copyrighted material made available via distance education must, among other things, meet the following criteria:
- Access must be limited to enrolled students
- Access must be limited to the time needed to complete the class session
- Reasonable efforts must be made to prevent students from copying and disseminating the material after they view it
- Analog material cannot be converted to a digital format, if it is readily available in a digital format
- The material must have been legally acquired initially
When one is delivering a course through the University of Wisconsin , inside a closed environment such as Desire2Learn most of the requirements of the TEACH Act are covered. All faculty and staff engaged in distance education should become familiar with the provisions of this law.
More information can be found through the American Library Association at the following site: Distance Education and the TEACH Act and through the Copyright Management Center at Indiana University - Purdue University - Indianapolis Overview of Copyright and Distance Education.
Using Copyright Material
It is possible to use copyright material for educational purposes, but to do so, one must first obtain permission. If use of an item does not meet the four factor fair use test, then you must seek permission to use the work. Most universities have processes and procedures for how this is done on any particular campus. The library is a good starting point for seeking out that information. In addition, the Copyright Clearance Center (http://www.copyright.com/) can assist in obtaining permission. You can also obtain permission to use copyrighted material on your own. Here are some sample permission letters to use as a guide, if you choose to seek permission to use material on your own.
Audio, Video and Copyright
Fair use applies to audio and video material. The same four criteria should be used to assess whether or not fair use applies. However, due to the formats, audio and visual materials have additional considerations that have to be taken into account.
Material can only be transferred from analog to digital under certain conditions:
- If original analog version is damaged
- If analog version will be destroyed after copy is made
- If analog version is on unsupported format (1/2" reel to reel videotape)
Using audio and video clips in class and online:
- A clip can be shown a second time for reinforcement
- If clips will be a regular part of the class or will be downloadable on-line, seek copyright permission
- Give credit where due
- Seek legal commercial copies first
- One copy, one use: if you need more than one copy or use clips often, seek permission
Protection of Your Own Intellectual Property
The University of Wisconsin System established a policy "Copyrightable Instruction Materials Ownership, Use and Control," in 1997 that governs the status of copyrightable material produced by UW employees. This policy can be accessed at http://www.uwsa.edu/fadmin/gapp/gapp27.htm.
The UW system has also required that each campus develop its own official copyright policy. An example of this is the UW-River Falls general copyright policy which can be found at http://www.uwrf.edu/administration/policies/ad_pol/adpol44.html.