Copyright for Higher Education

Just Because You Can

Does Not Mean You May!

There are many devices which make duplication, distribution, derivation, display, and public performance of copyrighted work possible, easy and quick.  But the ability to do so does not make it legal to do so.  Just because you can easily make copies of articles, download music, duplicate videos, cut and paste text from Web sites, etc. does not automatically mean you may do so!

 

Use the following links to learn about the copyright law particularly as it relates to higher education.

 



 


 

The Copyright Law

Copyright is one of four types of intellectual property protected by federal law in the U.S.  The others are patent, trademark and trade secret.  Copyright is important for students and educators to understand.  But everyone who creates Web pages should watch for trademark issues as well as copyright issues.

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

 

Back to Top

 

What are Copyrightable Works?

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.

 

Back to Top

 

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.

 

Back to Top

 

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.

 

Back to Top

 

Public Domain

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 (U.S.)

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 U.S. government are public domain.  However, private contractors sometimes write government publications, but retain the copyright and sometimes the government republishes a work that is copyrighted but got permission.  The government has a wealth of information and images.  This can be a real boon to webmasters.  And if you’re looking for pictures to put in your PowerPoint presentations search your subject in Google and limit to .gov sites.

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 15aDuration 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.

 

Back to Top

 

Protected From Public Domain

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.

 

Back to Top

 

The Copyright Notice

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 U.S. or signatories of the Berne Convention (see International Copyright below for more details).  You could use the © if you choose instead of the word “Copyright” and for sound recordings regardless of format (e.g. VHS, DVD, CD, audio cassette)use the è.  If you want to be more emphatic with longer statements like

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.

 

Back to Top

 

Fair Use Exemption

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.

 

Back to Top

 

Fair Use Checklist

 

 

This document is provided as a courtesy of the Copyright Management Center, IUPUI, 530 W. New York St., Indianapolis, IN 46202.

For further information and updates please visit http://www.copyright.iupui.edu/. This document last updated March 10, 2003.

 

Back to Top

 

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; 

 

Back to Top

 

Copyright and the Web

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.

 

Back to Top

 

Work for Hire

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”.

 

Back to Top

 

International Copyright

What about copyright outside of the United States?  There is no “International Copyright” per se; however, the Berne Convention and the General Agreement on Tariffs and Trade treaty (GATT treaty) allow authors to enforce their copyrights in signatory countries which include most industrialized nations.  Some foreign countries still require the phrase “All Rights Reserved” but it is not necessary in the US or signatories of the Berne Convention.

Circular 38a from the Library of Congress Copyright Office will provide more information on International Copyright Relations of the United States as will the International Copyright Fact Sheet and World Intellectual Property Organization Diplomatic Conference (WIPO) Geneva.

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.

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)

·       International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations

·       GATT 1994 (including the Agreement on Trade-Related Aspects of Intellectual Property)

·       World Intellectual Property Organization Copyright Treaty (1996)

·       World Intellectual Property Organization Performances and Phonograms Treaty (1996)

·       World Intellectual Property Organization Basic Proposal for Substantive Provisions of the Treaty on Intellectual Property in Respect to Databases and H.R. 3531 (Information and Antipiracy Act)

·       Universal Copyright Convention

 

Back to Top

 

Investigating Copyright Status

Here are some helpful guides to investigating the copyright and renewal status of published or unpublished works.

Samuel Demas and Jennie L. Brogdon, "Determining Copyright Status for Preservation and Access: Defining Reasonable Effort," Library Resources and Technical Services 41:4 (October, 1997): 323-334.

How to investigate the copyright status of a work. Circular 22 from the Library of Congress Copyright Office which provides general information on what is and is not protected by copyright, how to search for copyright records and updates on legal aspects of copyright issues.

The Online Books Page FAQ, especially "How Can I Tell Whether a Book Can Go Online?" and "How Can I Tell Whether a Copyright Was Renewed?"

Copyright Term and the Public Domain in the United States is a chart indicating when a work will go into the public domain whether published or unpublished in the U.S. or outside the U.S.

Copyright Registration for Online Resources  This circular also from the Library of Congress and gives information about copyright registration of online works made available over a communications network such as the Internet.

Copyright Research from Stanford University give instructions for finding information about ownership and copyright validity

Copyright Clearance Center can verify the copyright status of a work for you because they manage the rights relating to over 1.75 million works and represents more than 9,600 publishers and hundreds of thousands of authors and other creators, directly or through their representatives.

Harry Ransom Center contains the freely-accessible WATCH File (Writers, Artists and their Copyright Holders), “a database of copyright contacts for writers, artists, and prominent figures in other creative fields.  WATCH is run jointly by the Harry Ransom Center and University of Reading Library.”

 

Back to Top

 

Getting Permission

Permission to use copyrighted material must be obtained when fair use, face-to face teaching or one of the other exemptions do not apply.  The only other legal option is to not use the material.  When permission is needed make sure you are getting permission from the person who has the authority to give it.  Permission must be obtained from the actual copyright holder.  This is not necessarily the author; it is generally the publisher.  Call or e-mail the person, publisher and or Webmaster to confirm copyright ownership.  In instances where there are multiple copyright owners it may be necessary to obtain permission from all of them.  Be sure you investigate this possibility.

It is also important to communicate with the copyright owner(s) the exact type of right you need.  You don’t want to pay for more than is necessary but at the same time you don’t want to have to go back and get additional permissions.  Clearly state your need and the use you will be making of all the parts of the work you will be using.  Don’t be afraid to negotiate the fees.

Even though permission is frequently given, there is no once for all permission and so for course packs, syllabi, reserves and the like permissions may need to be obtained for every semester the work is used.  Although royalties vary dramatically they are usually affordable.  Never-the-less this is an important consideration as they may be assessed every time permission is granted.  Another consideration is that these fees may be passed on to the students receiving the documents.

When requesting permission, be sure to get it in writing and keep it on file.  If you are uploading the material to a Web site and you have made a good faith effort to get permission but are unable to locate the owner, make a disclaimer to the effect that you will remove the material at the copyright owner’s request (see DMCA) Digital Millennium Copyright Act (DMCA)

For more information about getting permission peruse the Stanford University Libraries Copyright & Fair Use Web site: Permission: What is it? Why do I need it?.

For detailed information on getting permission for print, images/photos, music, audiovisuals and movies visit Getting Permission: Where and How at Washington State University

You could also use the Copyright Permission Request Generator from Towson University to generate a format that you can then cut and paste to a blank document for printing on departmental letterhead.

 

Back to Top

 

How to find copyright owners

Often you can locate the copyright owner from the copyright notice on the work.  However, because copyright ownership sometimes passes through several hands since the work was first published a more detailed research may be required.  In addition, some works (especially in the fine arts like film and music), can involve multiple owners --each with a separate right to different underlying works.  Also different industries will require different methods for identifying copyright ownership.

For more details about finding copyright owners and getting the right kind of permission for your need visit Stanford’s Copyrights & Fair Use Web site.  The following Web sites can help you identify copyright owners and obtain permission to use their works.

Copyright Crash Course Permissions http://www.utsystem.edu/ogc/intellectualproperty/permissn.htm

Great site that lists all the major rights organizations for requesting permission.

WATCH http://tyler.hrc.utexas.edu/.

Writers, Artists and Their Copyright Holders at the Harry Ransom Humanities Research Center – Univ. Texas Austin is a searchable database containing primarily the names and addresses of copyright holders or contact persons for authors and artists whose archives are housed, in whole or in part, in libraries and archives in North America and the United Kingdom.

Public Moving Image Archives and Research Centers - http://lcweb.loc.gov/film/filmofr.html

Copyright Clearance Center - http://www.copyright.com/

 

Back to Top

 

Some Myths About Copyright

“Plagiarism is a violation of copyright law”.  Plagiarism is not a legal issue it’s an ethical one.  A scholar can be discredited; a student can be expelled; someone might loose a job, but plagiarizing is not illegal.  However, plagiarism could become a copyright issue, if a sufficient portion of material is taken.

“As long as I cite the source, it’s OK to use copyrighted material”.  Giving credit to the author does not exonerate you from complying with copyright.  Denying credit will weigh against you, though.  This is especially true with electronic resources; be sure to always include the copyright statement of the work being used.

“There’s no copyright statement, so it’s OK to copy it”.  A notice serves to strengthen the protection but it is no longer a requirement.  It is best to assume a work is copyrighted until proven otherwise.  See also the Register of Copyright Office Report on Orphan Works

“If I don’t charge for the copies, I’m not violating copyright law”.  Giving away copies of any copyrighted work, without charging is a violation of the law even if the work has no commercial value unless one of the exemptions applies (like Fair Use or Face-to-Face Teaching.

Copyright law is mostly civil law and so you could get sued, but you won’t be charged with a crime.  The rights accorded to criminal offenders therefore, do not apply.  However, it is now a felony to violate commercial copyright when more than 10 copies and a value of over $2,500 are involved.

“If it’s on the Internet, I can download without worrying about copyright”.  Because information is stored somewhere on an Internet server, it is fixed in a tangible medium and qualifies for copyright protection (except of course government documents, public domain, works dedicated to public domain).  Being on the Internet does not make it public domain.  Just because you can easily download or print does not mean you may:

On the one hand, it is a reasonable assumption that when a copyright owner uploads a work there is an implied license to download it for personal use (although this has yet to be tried in court).

On the other hand, only the legitimate owner can upload the work and Internet users have no way of knowing who put it there in the first place.

On the other hand, someone who innocently downloads an illegally uploaded work, only for personal purposes of course, has done nothing wrong.

On the other hand, the courts have determined that a person who wrongfully uploads a work can be held liable for copyright infringement.

 

Back to Top

 

Sample Permission Letter I

The request should be sent, together with a self-addressed, stamped return envelope, to the permissions department of the publisher in question.

 

Permissions Department

[Publisher]

[Address]

 

Dear Permissions Editor:

 

I am requesting permission to copy the following for continued use in my classes in the all semester of 2002 for [course name and number]:

 

Title:

Copyright:

Author:

Material to be duplicated: [chapters, page numbers; volume; issue number]

Number of copies:

Distribution: The material will be distributed to students in my classes and they will pay only the cost of the photocopying.

Type of reprint: [photocopy, computer disc, electronic reserve, html, pdf]

Use: The chapters/pages will be used as supplementary teaching materials.

 

If you do not solely control copyright in the requested materials, I would appreciate any information you can provide about others to whom I should write, including most recent addresses if available.

 

I have enclosed a self-addressed, stamped envelope for your convenience in replying to this request.

 

Sincerely,

 

 

 

[Signature]

[Address]

[date]

 

  • Please initial any statement that applies:
    • I hereby represent that I have the authority to grant the permission requested herein.
    • I am the sole owner/author of the work.

 

Company Signature

_______________________

Name of authorized signatory

_______________________

Title

_______________________

Company

_____________________

Date

 



Sample Permission Letter II

 

Material Permissions Department

Hypothetical Book Company

100 Main Street

Chicago IL 60601

 

To Whom It May Concern:

 

I am requesting permission to copy the following for continued use in my classes in the all semester of 2002 for [course name and number]:

 

Title:

Copyright:

Author:

Material to be duplicated: [chapters, page numbers; volume; issue number]

Number of copies:

Distribution: The material will be distributed to students in my classes and they will pay only the cost of the photocopying.

Type of reprint: [photocopy, computer disc, electronic reserve, html, pdf]

Use: The chapters/pages will be used as supplementary teaching materials.

 

I have enclosed a self-addressed, stamped envelope for your convenience in replying to this request.

 

Sincerely,

 

 

 

Faculty Member

Sample Permission Letter III

 

Material Permissions Department

Hypothetical Book Company

100 Main Street

Chicago IL 60601

 

To Whom it May Concern:

 

I am writing to obtain permission to use the following material:

Nature of materials: ________________________________________________________ [describe]

Publisher: ______________________________________________ Date of publication: ____________

Author(s): ___________________________________________________________________________

Page numbers or other description of material: ______________________________________________

(Check if applicable)

¨     A photocopy of the materials in enclosed.

 

I wish to use this material in the following work:

Author(s): ___________________________________________________________________________

Title: _______________________________________________________________________________

Publisher: ________________________________ Proposed date of publication: ___________________

 

I am requesting nonexclusive rights to use this material as part of my work and in all future editions and revisions thereof, however they may be exploited, in any language or medium now known or hereafter discovered, including, but not limited to: print, microfilm and electronic media.

 

Unless you specify otherwise, the material will be accompanied on publication by the following credit line and copyright notice: __________________________________________ [specify credit line and copyright notice]

 

Other conditions, if any: __________________________________________________________________

 

If you do not control the world rights to the request material, please specify here any additional source from whom permission must be obtained: _______________________________________________________

 

Thank you for your prompt consideration of this request.  For your convenience, a release form is provided below and a signed copy of this letter is enclosed for your files.

 

Very truly yours,

__________________________________________

[Your signature]

 

Permission is granted for the use requested above.

_________________________________________

[Signature]

_________________________________________

[Specify name and title, if any]

_________________

[Date]

 

Back to Top

 

Current Legislation & Case Law

US Constitution

Article I Section 8 | Clause 8 - Patent and Copyright Clause of the Constitution.

[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;"

  • First Amendment Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

US Code

US Regulations

Case Law

 

Back to Top

 

Resources on Intellectual Property Law

Copyright Law Web Sites

US Copyright Office:  http://www.copyright.gov/

Library of Congress (LOC) Circulars and Form Letters:  http://lcweb.loc.gov/copyright/circs/

LOC Copyright and Licensing Resources - http://lcweb.loc.gov/film/copyrite.html

Public Moving Image Archives and Research Centers - http://lcweb.loc.gov/film/arch.html

Copyright Registration for Online Works - http://www.copyright.gov/circs/circ66.pdf

This circular gives instructions on registering web pages and other online works.

Digital Millennium Copyright Act (DMCA) - http://www.copyright.gov/legislation/hr2281.pdf

DMCA Summary - http://www.loc.gov/copyright/legislation/dmca.pdf

The full text of the Digital Millennium Copyright Act:  http://thomas.loc.gov/cgi-bin/query/z?c105:H.R.2281.ENR:

TEACH Act: http://www.copyright.gov/legislation/pl107-273.html#13301

TEACH Act Comparison Chart by Lolly Gassaway - http://www.unc.edu/~unclng/TEACH.htm

Orphan Works -- http://www.copyright.gov/orphan/

 

Web Sites and Articles

Creative Commons - http://creativecommons.org/

The goal of Creative Commons is to build a layer of reasonable, flexible copyright in the face of increasingly restrictive default rules.  It uses private rights to create public goods by protecting the works of the creator while encouraging certain uses of them.  Creators voluntarily declare "some rights reserved."

Copyright Clearinghouse - http://www.copyright.com/

Campus Guide to Copyright Compliance - http://www.copyrightoncampus.com/ -- basic information about copyright on campus as well as more complex issues like interlibrary loan and e-reserves.

Legal Information Institute - http://www.law.cornell.edu/

LibraryLaw.com - http://www.librarylaw.com/

Copyright and Libraries -- http://www.librarylaw.com/Copyright_and_Libraries.html

Nolo:  Law for All - http://www.nolo.com/lawcenter/ency

Peter B. Hirtle, Copyright Term and the Public Domain in the United States  - Among other things find copyright status of a work and even international concerns

The Copyright Law and Litigation Resources -- http://www.kasunic.com/.  Find articles, court cases, education information, journals, legislation, and more by Robert J. Kasunic, Principal Legal Advisor, Office of the General Counsel, U.S. Copyright Office, Library of Congress

Librarians Index to the Internet: Copyright, Intellectual Property Rights, and Licensing Issues -- http://sunsite.berkeley.edu/Copyright/

Publisher Copyright Policies -http://www.sherpa.ac.uk/romeo.php - Summaries of publishers default policies.

 

Books on Copyright Law

101 Questions About Copyright Law / Andrew Alpern. Mineola (NY): Dover Publications, 1999. [R/346.7304/AL74o/1999]

Copyright Essentials for Librarians and Educators / Kenneth D. Crews. Chicago: American Library Association, 2000. [R/346.7304/C867c/2000]

Copyright law on campus / Marc Lindsey. Pullman, Wash : Washington State University Press, c2003. [346.730482 L645c, 2003]

Getting Permission:  How to License & Clear Copyrighted Materials Online & Off / Richard Stim. Berkeley: Nolo, 2001. [R/346.7304/St54g/2001]

Libraries and Copyright: A Guide to Copyright Law in the 1990’s / Laura N. Gasaway and Sarah K. Wiant. Washington, D.C.: Special Libraries Association, 1994. [R/346.0482/G21L/1994]

Multimedia Law and Business Handbook / J. Dianne Brinson and Mark F. Radcliffe. Menlo Park (CA): Ladera Press, 1996. [R/346.0482/B772m/1996]

Patent, Copyright & Trademark / Stephen Elias. Berkeley: Nolo Press, 1997. [R/346.0482/EL42p/1997]

The public domain : how to find copyright-free writings, music, art & more / Fishman, Stephen. Berkeley, CA : Nolo.com, 2001. [346.7304 F539p]

Questions and Answers on Copyright for the Campus Community / Association of American Publishers, National Association of College Stores, Inc. (U.S.) and Software & Information Industry Association.  [6th ed]  Washington, DC : Association of American Publishers ; Oberlin, OH : National Association of College Stores ; Washington, DC : Software & Information Industry Association, c.2003. [346.0482 Q38a]

Technology and Copyright Law: a Guidebook for the Library, Research, and Teaching Professions / Arlene Bielefield and Lawrence Cheeseman. New York: Neal-Schuman Publishers, 1999. [R/346.7304/B476t/1999]

The Copyright Handbook:  How to Protect and Use Written Works / Stephen Fishman.  5th ed. Berkeley: Nolo, 2000. [R/346.7304/F539c/2000]

The Copyright Primer for Librarians and Educators / Janis H. Bruwelheide. 2nd ed. Chicago: American Library Association; Washington, D.C.: National Education Association, 1995. [R/346.0482/B839c/1995]

Online Copyright Tutorials

NCSU Copyright Tutorial:  http://www.lib.ncsu.edu/scc/tutorial/main.html

Crash Course in Copyright:  http://www.utsystem.edu/ogc/intellectualproperty/cprtindx.htm

Copyright Primer: http://www.umuc.edu/cgi-bin/cgiwrap/primer/primerwrap.cgi/enter.php

Copyright: Finding the balance: S:\Common\Staff_Public\Library\Copyright\Finding the Balance

Copyright Quickguide: http://copyright.iupui.edu/quickguide.htm

CopyOwn-Tutorial: http://www.inform.umd.edu/copyown/tutorial/

Fair Use Harbor in Copyright Bay - http://www.stfrancis.edu/cid/copyrightbay/fairuse.htm

A game for teachers

Additional Copyright Resources

What Every Teacher Should Know about copyright: http://www.2learn.ca/copyright/locate

UCLA Policy 964: Online Copyright Infringement Liability Limitation

Copyright Clearance Center:  http://www.copyright.com/

Copyright Management Center:  http://copyright.iupui.edu/

Stanford University Libraries Copyright and Fair Use:  http://fairuse.stanford.edu/

UCLA Cyberspace:  http://www.gseis.ucla.edu/iclp/dmca1.htm

CETUS: Fair Use of Copyrighted Works: http://www.cetus.org/fairindex.html

New Copyright Law for Distance Education: http://www.ala.org/washoff/teach.html

TEACH Act Toolkit: http://www.lib.ncsu.edu/scc/legislative/teachkit/resources.html

The TEACH Act finally becomes law: http://www.utsystem.edu/ogc/intellectualproperty/teachact.htm

WATCH: Writers, Authors and Their Copyright Holders:  http://tyler.hrc.utexas.edu/

An Intellectual Property Primer: Protecting your investment with Copyright, Patent, Trade Secret and Trademark: http://copyright.iupui.edu/IPPrimer.pdf

Copyright Law and Graduate Research: http://www.umi.com/products_umi/dissertations/copyright/

Multimedia & Technology

Intellectual Property & Technology Forum: http://www.bc.edu/bc_org/avp/law/st_org/iptf/

An Intellectual Property Law Primer for Multimedia and Web Developers: http://www.eff.org/CAF/law/multimedia-handbook

Legal Information for Internet Professionals: http://www.gigalaw.com/

Multimedia Law and Business Handbook / J. Dianne Brinson and Mark F. Radcliffe. Menlo Park (CA): Ladera Press, 1996. [R/346.0482/B772m/1996]

Trademark Law

United States Patent and Trademark Office: http://www.uspto.gov/web/offices/tac/tmlaw2.html

Trademark Law Overview, Legal Information Institute: http://www.law.cornell.edu/topics/trademark.html

BitLaw - A Resource on Technology Law: http://www.bitlaw.com/trademark/index.html

Primer on Trademark and Internet Addresses: http://www.loundy.com/JMLS-Trademark.html

Overview of Trademark Law: http://cyber.law.harvard.edu/metaschool/fisher/domain/tm.htm

International Trademark Law

International Trademark Association: http://www.inta.org/

International Trademark Law Treaty: http://www.wipo.org/treaties/ip/tlt/index.html

Nairobi Treaty on the Protection of the Olympic Symbol:   http://www.wipo.org/treaties/ip/nairobi/index.html

Patent Law

U.S. Patent Law, U.S. Patent and Trademark Office: http://www.uspto.gov/web/offices/pac/mpep/consolidated_laws.pdf

U.S. Patent Rules, U.S. Patent and Trademark Office: http://www.uspto.gov/web/offices/pac/mpep/consolidated_rules.pdf

U.S. Supreme Court Patent Decisions, Legal Information Institute: http://supct.law.cornell.edu/supct/cases/patent.htm

Overview of Patent Law, Legal Information Institute: http://www.law.cornell.edu/topics/patent.html

BitLaw - A Resource on Technology Law: http://www.bitlaw.com/patent

Patent Law at MIT: http://www.mit.edu:8001/courses/6.901/patent.html

International Patent Law

Patent Law Treaty: http://www.wipo.int/treaties/ip/plt/index.html 

 

Back to Top

 

The information presented here is not legal advice. Individuals and organizations should consult their own attorneys.

© Janet Tillman/The Master’s College, 2004 - 2008, permission is granted for non-profit educational use; any reproduction or modification should include this statement.



[1] FRIDGE mnemonic used by permission from Mary Minow, JD Policy Analyst for the California Association of Library Trustees and Commissioners < http://www.librarylaw.com/>.