Copyright & Fair Use Guide

Copyright and Fair Use Guide: Facilitating a Campus Culture of Copyright

Compliance was authored by Willette F. Stinson, Ph.D. and Gerald Hankins, Ph.D. and is to be periodically edited by a supporting Committee for Copyright and Fair Use as part of their work to the West Virginia State University through the Academic Affairs Office.  

This is a guide to applying the concept of fair use when seeking to use third-party copyrighted materials. This guide describes the generally accepted practices surrounding fair use. Remember, the law is intentionally vague in order to allow teachers a large amount of leeway for purposes of education. You can find out more information about the copyright and the Fair Use Act at the U.S. Copyright website.

DISCLAIMER: The information presented here is only general information. Legal advice must be provided in the course of an attorney-client relationship specifically with reference to all the facts of the particular situation under consideration. Such is not the case here, and accordingly, the information presented here must not be relied on as a substitute for obtaining legal advice from a licensed attorney.

Date Created: October 10, 2014

Classroom Copies

SINGLE COPIES

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

  • A single chapter from a book.
  • A single 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.


MULTIPLE COPIES

Multiple copies may be made by or for the teacher giving the course for classroom use or discussion, provided that:

  • The number of copies do not exceed more than one copy per student in a course.
  • Each copy includes a notice of copyright and the appropriate citations and attributions.
  • The copying meets the tests of brevity and spontaneity.
  • The copying meets cumulative effect test.

For further information and definitions as to what is meant in this context by brevity, spontaneity and cumulative effect see U.S. government Circular 21 on Reproduction of copyrighted works by educators and librarians. (http://www.copyright.gov)

Classroom Use Guides

Images – illustrations & photographs:

  • If using a single image, the image may be used in its entirety. The generally accepted fair use practice is that no more than five images from a single artist are used.
  • If using multiple images, the generally accepted fair use practice is to use no more than 15 images or 10% of the entire work, whichever is the less.
  • Images may be either in the public domain, creative commons, or under copyright. If an item is under copyright, one must first contact the owner of the image for permission to use it. If an image is in the public domain or creative commons, contacting the owner is not necessary but one must still cite the source.

Videos – music videos, feature films, educational films:

  • If using a video in a face-to-face class the professor may show it in its entirety.
  • If using a video in an online class, the generally accepted practice is to use less than 10% or 3 minutes, whichever is the less.
  • If used in its entirety the film will include its own attribution, if used in portion the professor must be sure that a proper citation is added.

Music – records, CD’s, audiotapes, audioclips online:

  • Live performances or playing of a single recorded song in class generally falls under the requirements of the TEACH Act, and permission is not needed. If there are any doubts about meeting the requirements of the TEACH Act, one should contact the owner to be certain.
  • If the song is old enough to be out of copyright, permission is not needed.

Television – broadcast:

  • Recordings or DVD’s from broadcast television may be used for instructional purposes.

Television – cable:

  • Recordings or DVD’s from cable television may be used for instructional purposes after obtaining permission. See Cable in the Classroom for more information.

Codes of Best Practices

RESOURCES FOR CODES OF BEST PRACTICES IN FAIR USE

At American University, the Center for Media & Social Impact has worked with various groups of content creators to help them document practices in their communities that are widely considered to be fair use.

Courts take into account the common practices of a given community when deciding fair use cases. Each Code includes principles describing how and why fair use applies to a given practice or situation as well as limitations that should be observed to strengthen the case for fair use. 

This document is a code of best practices designed to help those preparing OpenCourseWare to interpret and apply fair use under United States copyright law.

This guide identifies five principles that represent the media literacy education community’s current consensus about acceptable practices for the fair use of copyrighted materials, wherever and however it occurs: in K–12 education, in higher education, in nonprofit organizations that offer programs for children and youth, and in adult education.

This code of best practices in fair use in teaching for film and media educators, created by the Society for Cinema and Media Studies, deals with classroom screenings, broadcasts, and derivative works.

Describes six uses of copyrighted still images that the Visual Resources Association believes fall within the U.S. doctrine of fair use.

This document is a code of best practices that helps U.S. communication scholars interpret the copyright doctrine of fair use. It identifies four situations that represent the current consensus within the community of communication scholars about acceptable practices for the fair use of copyrighted materials.

This code of best practices helps poets understand when they and others have the right to excerpt, quote and use copyrighted material in poetry.

This document is a code of best practices that helps creators, online providers, copyright holders, and others interested in the making of online video interpret the copyright doctrine of fair use.

Documentary filmmakers have created, through their professional associations, a clear, easy to understand statement to help other filmmakers understand some instances where using copyrighted material without clearance is considered fair use,

Clarifies what librarians, archivists, curators, and others working with dance-related materials currently regard as a reasonable application of the Copyright Act’s fair use doctrine.

Journalists have created a set of principles that allows them to stop censoring their journalistic choices, especially in emerging digital environments. This Set of Principles reduces risk of copyright infringement by clarifying professional community standards. It identifies seven situations in which journalists routinely employ fair use, and what its limitations are: Incidental capture; proof; use in cultural journalism; illustration; historical reference; to foster public discussion and advancing the story.

Identifies the relevance of fair use in eight recurrent situations for librarians and affirms that fair use is available in each of these contexts; provides helpful guidance about the scope of best practice in each.

Copyright Basics

WHAT RIGHTS DOES COPYRIGHT PROTECT?

Copyright is a bundle of exclusive rights. A copyright owner has the exclusive right to do and to authorize others to do any of the following:

  • To reproduce the work in copies or phonorecords
  • To prepare derivative works based upon the work
  • To distribute copies or phonorecords 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 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
  • To perform the work publicly (in the case of sound recordings) by means of a digital audio transmission

WHAT TYPES OF WORKS CAN BE COPYRIGHTED?

Copyright protection attaches automatically to original works of authorship fixed in a tangible medium of expression. Originality requires that the work was created independently (i.e. not copied from another) and that it embodies a minimum amount of creativity. To be fixed in a tangible medium of expression means that the work can be perceived either directly or by a machine or device such as a computer or projector.
Copyrightable works include the following categories:

  • 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

These categories should be viewed broadly. For example, “literary works” includes novels, poetry, compilations, and computer programs. “Pictorial, graphic, and sculptural works” includes images, photographs, paintings, maps, charts, and architectural plans.

WHAT CANNOT BE COPYRIGHTED?

Certain types of works are not eligible for copyright protection. These include:

  • Ideas, theories, concepts
  • Procedures, methods, processes
  • Titles, names, short phrases and slogans, familiar symbols or designs, variations of type styles, lists of ingredients
  • Facts
  • Works consisting entirely of information that is common property and containing no original authorship (e.g. standard calendars, height and weight charts, tables taken from public documents)
  • Works of the U.S. government

These works are in the public domain, meaning they are freely available for use without copyright restrictions.

LIMITATIONS ON COPYRIGHT

In order to balance the needs of users with those of rightsholders and to preserve copyright’s purpose to promote science and the useful arts, copyright law contains a number of exceptions.
For example:

  • Section 107: Fair use — Permits use of copyrighted material without acquiring permission. Examples of fair use include criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, and research.
  • Section 108: Library copying — Allows libraries to make copies of works for preservation, research and study, and interlibrary loan.
  • Section 109(a): First sale doctrine — Limitation on the copyright holder’s distribution right that states that once a copy of a work has been lawfully sold, the owner of the copy is free to resell it, rent it, loan it, or give it away. Allows for library lending, video rentals, used book and CD sales, and the ability to give copyrighted materials as gifts.
  • Section 109(c): Exception for public displays — Allows the owner of a lawfully made copy of a work to display it to the public at the place where the work is located. Allows for display of art in museums and bookstore and library displays, for example.
  • Section 110(1): Displays and performances in face-to-face teaching — Allows for the performance and display of copyrighted materials in the course of face-to-face teaching at nonprofit educational institutions.
  • Section 110(2): Displays and performances in distance education (TEACH Act) — Ability to display or perform certain types of copyrighted works in the course of distance education. Use of 110(2) is subect to many conditions, including establishing institutional policies and implementing technological controls.
  • Section 117: Computer Software — Owners of computer software can make backup copies and modify the software so that it works on a specific computer platform.
  • Section 120: Architectural Works — Anyone may take and use photographs of publicly visible buildings without infringing the copyright in the architectural design.
  • Section 121: Special formats for the blind or other people with disabilities — Organizations that serve the disabled can reproduce or distribute copies of previously published, nondramatic literary works in specialized formats for use by the blind or other persons with disabilities.

Many of the exceptions in copyright law apply only to certain types of works under very specific conditions. The exceptions can be difficult to understand and apply without the advice of a lawyer.

In contrast, fair use is easier to understand, applies to all types of works, and is flexible. It is for these reasons that this guide recommends relying on fair use when deciding when and how to use (or not to use) third-party copyrighted material in online education.

Fair Use and the TEACH Act

The fair use doctrine recognized under U.S. copyright law and allows certain uses of copyright protected material without first obtaining permission from the copyright holder. It is intended to serve the public good by allowing use of copyright protected materials for comedy, parody, criticism, news reporting, research and education.  However, The concept of fair use is somewhat vague and the law does not clearly distinguish which uses are fair and which are not.   What constitutes fair use depends critically on the particular facts of the individual situation and it is important to remember that not every use in an academic setting is automatically considered a fair use.

The following factors must be considered and weighed to determine whether fair use applies. A thoughtful analysis of these factors in relation to the desired use is needed in order to make a “good faith” determination of fair use.  Significant penalties that can be imposed for copyright infringement.  Liability may be reduced in cases of nonprofit educational use if it can be established that an evaluation of these four factors resulted in a reasonable belief that the use was fair.

The character or purpose of the use.  If the use is for a nonprofit educational use as opposed to a commercial purpose, it is more likely to be considered fair use.

The nature of the work to be used. If it is a fact-based work developed for research or scholarly use as opposed to a creative work created for commercial purposes, it is more likely to be considered fair use.

The amount and substantiality of the portion used in relation to the copyrighted work as a whole. The amount and substantiality of the portion used in relation to the copyrighted work as a whole must be considered.  This refers to the amount, length, and duration of the use.  The smaller the amount used, the more likely it favors fair use.

The effect of the use upon the potential market for or value of the copyrighted work. In order to favor fair use, the use should have little or no effect on the creator’s ability to make money from the work. Where a work is available for purchase or license from the copyright owner in the medium or format desired, copying of all or a significant portion of the work instead of purchasing or licensing a sufficient number of “authorized” copies would be unfair. Where only a small portion of a work is to be copied and the work would not be used if purchase or licensing of a sufficient number of authorized copies were required, the intended use is more likely to be found to be fair. However, there is no specific number of words, lines, or notes that may safely be taken without permission. Moreover, acknowledging the source of the copyrighted material does not substitute for obtaining permission.

The U.S. government copyright office website (http://www.copyright.gov/) has the most recent information about copyright and fair use.
The Technology, Education and Copyright Harmonization Act (TEACH ACT) (http://www.copyright.gov/docs/regstat031301.html) became law in 2002 (it revised 17 U.S.C. section 110 of the U.S. code). The TEACH ACT only applies to accredited nonprofit educational institutions and it is quite complex.

FACE-TO FACE TEACHING

Title 17 of the United States Code, section 110(1) permits the display and performance of others’ works in the face-to-face classroom. An instructors and students may show or perform any work related to the course curriculum in a face-to-face setting regardless of the medium including music, images and movies. For example, an instructor can show an entire film in class without obtaining permission. However, the instructor must use a lawfully acquired copy of the work.  Here “Perform” means to show a film or video, recite a poem, read or act out a play, etc. and “display” means to show a copy either directly or by means of a projection.  The act does not include the right to make or distribute copies or to make derivative works based on the works that are performed or copied.

DISTANCE EDUCATION

Prior to the passing of the TEACH ACT, there were severe limitations on what could be performed in a distance education course. Although it makes the rights closer to what is available in the traditional face-to-face teaching environment, there is still a gap between the two. In some cases, it may be easier or more applicable to rely on the Fair Use factors when dealing with electronic teaching tools. The TEACH ACT only applies to in class performances and displays. Therefore, digital delivery of supplemental reading materials and other electronic resources used or made available to students outside of the digital classroom are not covered by the TEACH ACT, however the CONFU multi media guidelines may apply. (http://www.uspto.gov/about/offices/opa/index.jsp)

TEACH ACT REQUIREMENTS FOR IN CLASS PERFORMANCES AND DISPLAYS IN A DISTANCE EDUCATION COURSE

  • The material must be used in a course offered by an accredited nonprofit educational institution.
  • Access must be restricted to students registered in the course.
  • The performance or display cannot be made by means of a copy that was made or acquired unlawfully if the institution knows or has reason to believe the copy was made or acquired unlawfully.
  • The Act permits the performance of non-dramatic literary and musical works or reasonable and limited portions of any other works. Therefore, audio-visual and dramatic works (such as movies) can only be shown as ‘clips’ under the Teach Act.
  • The performance or display must be (1) directly related and of material assistance to the teaching content of the transmission and (2) an integral part of a class session offered as a regular part of the systematic mediated instructional activities of the institution.
  • The transmitting institution must (1) institute policies regarding copyright, (2) provide faculty, students and relevant staff with informational materials that accurately describe and promote compliance with copyright law, and (3) provide notice to students that materials used in connection with the course may be subject to copyright protection.
  • In the case of digital transmissions, the transmitting institution (1) must employ technological measures that reasonably prevent recipients from retaining the work in accessible form for longer than the class session and further disseminating the work to others without authorization, and (2) must not interfere with technological measures used by copyright owners to prevent such retention or unauthorized further dissemination.
  • The Act excludes the performance and display of works produced or marketed primarily for performance or display as part of mediated instructional activities transmitted via digital networks

RESOURCES

Further information on the teach act may be found at http://www.ala.org/advocacy/copyright/teachact/faq

Fair Use Checklists

Fair use checklists help you focus on the facts of a given situation in order to better evaluate how fair use might apply. They also assist you in recording your decision-making process and serve as proof of your good-faith effort to apply fair use if your use is challenged by a rightsholder.

Fair use checklists help you focus on the facts of a given situation in order to to better evaluate how fair use might apply. They also assist you in recording your decision-making process and serve as proof of your good-faith effort to apply fair use if your use is challenged by a rightsholder.

From the Copyright Advisory Office at Columbia University.

From the University of Minnesota University Libraries.

Tool that helps you describe how your intended use relates to each of the four fair use factors and how fair you feel your use is for each factor. Provides you with a time-stamped PDF document for your records.

Obtaining Permission

If material is still under copyright permission, fair use does not apply and there are no other applicable exceptions under copyright law, the only way to use the copyrighted work without potentially incurring legal liability is to obtain the permission of the copyright owner in advance. The owner is not always the author and is often the publisher.  Send a letter requesting permission to the owner of the work. If you do not know the identity of the owner, it is often best to begin with the publisher of the work.  Publishers, authors and artists are often, but not always, generous in granting permission to use their work in an educational context.

Public Domain

In cases where fair use does not apply, alternatives are suggested, for example using materials that are open access, that have open licenses, or that are in the public domain. It is also possible to purchase a license to use a work.

This guide applies only to the use of copyrighted materials created by others. Ownership rights to West Virginia State University said intellectual property per the Intellectual Property Rights Management Policy is located here.

Copyrights have a limited term.  Once the applicable copyright term has expired, the work passes into the “public domain” and may be freely used by anyone for any purpose.

The following guide applies to use within the U.S. as outlined in Section 104 of the U.S. Copyright Act (http://www.copyright.gov/title17/). “Publication” means “the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending.  The offering to distribute copies or phonorecords to a group of person for purposes of further distribution, public performance, or public display constitutes publication.  A public performance or display of a work does not of itself constitute publication.” (17 USC section 101)

The following would be considered to be in the public domain:

  • Works published before 1923
  • Works published after 1922 & before 1978 without ã notice
  • Works published after 1922 & before 1978 with ã notice, but not renewed after 28 years
  • Works published after 1977 & before March 1, 1989 without ã notice & without subsequent registration
  • Works published after 2002 but created before 1978 and author died more than 70 years ago & before 1978 with ã notice, but not renewed after 28 years

For use of other works, including unpublished works and works created under corporate authorship, permission May be needed.  Refer to the sections on Fair Use, the Teach Act, Classroom Copies and Obtaining Permission.

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