The Five Step Approach For Analyzing Copyright Use Questions
You don’t need a lawyer to answer many of your common copyright questions. What is needed, however, is for your decision about using a copyrighted work to rest solidly on a reasonable, good faith analysis of relevant facts and circumstances. Such an effort is important because it is the right thing to do and because the US Copyright Act provides relief from monetary statutory damages to employees of non-profit educational institutions, acting within the scope of their employment, who base their copyright decision on a reasonable, good-faith evaluation.
Whether your copyright question involves using copyrighted works in your traditional face-to-face classroom setting or use within your online course, working through these questions, in order, will provide you with a reasonable and logical method for analyzing and, hopefully, answering your particular question.
The questions are exactly the same, whether a traditional or online class use is anticipated, with the exception of Question No. 3, involving specific performances and displays of works.
1. Is the work copyrighted? If not, no further analysis is needed. If yes or if you don’t know, read on.
4. Does the fair use provision of the copyright law justify my proposed use?
5. Do I need permission from the copyright holder for the use I propose?
1. How do I know if the work I want to use is copyrighted?
Copyright protection arises automatically the moment an original work is fixed in a tangible medium of expression. It does not need to be registered, published, or have a copyright notice on it. Copyright has expired for works published in the US before 1923 and, therefore, they are in the public domain. For other works that may have entered the public domain, see Copyright Term and the Public Domain in the United States.
Another exception includes works produced by US government employees as part of their job; these are not copyrighted. States, however, can claim copyright in works created by state entities - but the only way to know, is to ask them.
In short, the default assumption is that everything you are likely to use is copyrighted, even if it does not contain a copyright notice, unless it’s very old or produced by the US government. Of course, this does not automatically mean that you always need permission to use the work for teaching. If you decide the work is copyrighted, continue reading.
A word about linking: Providing a URL or linking to a work is always an option. There is no copyright protection for facts or ideas. A url is simply an address, i.e., a fact and is not copyrighted. You do not need permission to link to another Web site.
a. What if I got the work from a Web site that
- didn’t say anything about copyright?
- didn’t have a copyright notice?
- said everything on it was public domain?
- said I could use it for teaching?
Web sites vary wildly in terms of quality, authenticity, validity, and accountability. Works residing on a site that is silent on copyright should be presumed to be copyrighted (with the exception of US Government Web sites).
For works on sites claiming to be in the public domain, you will have to judge whether or not these claims are trustworthy, keeping in mind that such claims will not protect you should a copyright holder object to your use. Similar assessments will need to be made about sites purporting to give permission to use material on the site. Only the real copyright holder, or those authorized by him or her, can give permission. Do you believe the entity giving you permission fits one of these categories?
Copyright infringement is a strict liability offense; in other words, not knowing that you are infringing or relying on the assertions of a Web site owner with whom you have no contractual promise or warranty that they have the rights/authority to grant you permission to use the work, will not protect you from infringement liability.
Fair use is the only copyright provision that allows you to copy, display, or distribute a copyrighted work that you find on Web sites. In order to lawfully make use of such works, without obtaining the permission of the copyright holder, you must decide whether your use is a fair use (see question #4, below) or direct students to a link to the work.
b. What if I created the work?
Unless you wrote the work under contract as a work for hire or as an employee, you are the author and the initial copyright holder. If, however, you have transferred your copyright to another entity (in writing), without retaining any "use" rights for yourself, you are no longer the copyright holder and have no special privileges to use the work.
To keep your copyright, the next time a publisher’s agreement proposes transferring exclusive rights from you to them as a condition of acceptance for publication, consider your options. You should at least retain the rights you need to use your work in your future teaching, research, and publication. You may also want to retain rights to place your own work in an open archive and/or share it with your students and colleagues. The SPARC Author Addendum is one means of securing these rights. Various other addendums and sample publishing language can be found in the ownership area of this Web site.
c. Suppose a student created the work?
Students hold the copyright to the works they create, such as their papers, projects, theses, and dissertations. If you wish to use their work, absent any relevant university policy, you will have to treat it like any other copyrighted work.
Assuming the work you wish to use is still protected by copyright, move on to the next question.
2. Is the work covered by a license, such as those governing my library’s electronic journals and databases?
You are most likely to encounter licensed works when you access them through your campus library’s electronic journals and databases. Essentially all of these electronic resources came with a license and the terms of those licenses may hold the answer to your question. Licenses are contracts and contract law trumps copyright law. Therefore, if you have signed away your fair use rights, they are gone. Fortunately, libraries carefully negotiate these licenses and have a good idea of what terms are or are not acceptable. These license negotiators are usually successful in getting the rights you need to do your work here at the University. If you have a specific concern or question, you can always contact your library for information about a specific license.
You may also encounter works, particularly on the Internet, that specify "Terms and Conditions of Use" (browse-wrap licenses) or sites that require you to affirmatively click "Yes" or "I Agree" to their set of terms and conditions. [Courts are split whether these types of licenses are enforceable]. You may find that the terms and conditions allow your particular proposed use. Many Web sites now use Creative Commons licenses to convey how their works may be used, obviating the need to actually contact them or go through a fair use analysis. The Creative Commons suite of licenses has grown tremendously in popularity. The Creative Commons Web site allows you to select particular conditions or uses that you wish to allow (perhaps you approve of nonprofit educational uses, no commercial use, proper attribution, and no modification; the license generator will then present you with three forms of a license with those conditions: lawyer-readable, human-readable, and machine readable which you can then place on your site).
If there is no license or other terms and conditions associated with the work you proposed to use, move along to the next question.
3. Is there a specific provision in the copyright law that supports my proposed use without seeking prior permission from the copyright holder?
Here is where our analysis diverges depending upon the setting for your class. Do you propose to use the copyrighted work in a traditional face-to-face setting or in an online class or online portion of a class? Recall that our analysis is focused on teaching with copyrighted materials. At this point, you wish to use some or all of a copyrighted work in teaching your class. You wish to display the work, such as showing your students images, graphics, photographs, charts, slides or something else that is static. Or perhaps you wish to perform a work for them to see or hear such as music, a sound recording, an audio-visual work or a movie. The specific copyright exemption that addresses the performance and display exceptions is §110. It is very important that you keep the verbs straight: you perform a movie or music, you do NOT display it. Conversely, you display static works.
Traditional Face-To-Face Classroom Teaching: "F2F"
Section 110(1) is the specific copyright law provision that applies to the performance or display of copyrighted works in the face-to-face setting of a traditional classroom. Section 110(1) is a great provision - it allows teachers and students to perform or display any work in the course of face-to-face teaching activities at a nonprofit educational institution, in a classroom or similar place devoted to instruction. The only limitation is that if you are performing a movie or other audiovisual work, the movie has to have been a lawfully made copy. (no pirated works) Otherwise, this provision is quite generous -your performance or display of a work just needs to be for instructional purposes (not entertainment), in a traditional face-to-face classroom, at a nonprofit educational institution.
It's a very friendly provision of the Copyright Act. Faculty and instructors have been employing provision for years, without a second thought or realizing that there was actually a specific law that authorized their activities; and that, without that law, their activities would have been illegal. These teaching methods are so ingrained in the teaching culture that faculty often have no idea that copyright plays any role at all. It, therefore, comes as quite an unpleasant shock, to find that similar provisions do not exist once the class is moved online, or, to be more precise, once the works are transmitted.
It is also important to note that the performance and display provisions of §110 do NOT address the act of reproduction that often must precede the performance or display. In other words, many times the faculty member must make a copy of the work before it can be displayed. The justification for making that single copy to show in the traditional classroom frequently relies upon the fair use provision. (see below)
The following questions address situations that can arise in the face-to-face classroom setting. [§110(1)]
a. Can I show part or all of a copyrighted movie in my classroom? And does it matter if I’m
- using my own copy?
- using the library’s copy?
- using a copy I rented from a store?
In order to fit within the 110(1) exemption, the copy, whoever it belongs to, must have been “lawfully” made. Note that a "fair use" copy is lawfully made. (See fair use described below in question #4.) What this is intended to prohibit is the use of bootlegged or pirated copies.
Under section 110(1), you are allowed to show all or part of any of these copies in your face-to-face classroom as long as it is for the educational purposes of your class (not just entertainment). In particular, you can show a rented movie as long as you have not entered into a license or agreement with the rental store that would prohibit such use.
b. My copy of the movie I have is in VHS format and is getting worn out. Can I
- digitize it and show that?
- ask the library to digitize either my copy or theirs for showing in class?
There is nothing in section 110(1) that addresses “reproduction” which is what migrating your VHS copy to digital format would be. In order for you, the faculty, to digitize your VHS, you would have to rely on fair use (see question #4, below), which may justify digitizing portions of the work, but probably not the entire movie. If the work is available in digital format, buy it (or ask your library to buy it) and you can show that in your traditional classroom.
If the work is not available in digital format for you or your library to purchase, your library can digitize its VHS copy as long as the tape can be reasonably described as deteriorating. The library (only) is allowed to do this under certain circumstances and pursuant to a different section of the Copyright Act. [§108]
c. Can I display a copyrighted picture, image, graph, chart, text, etc. to my face-to-face class?
Yes, you may display these kinds of copyrighted works in your class. However, what you need to consider is how you obtained the copy of the image etc. that you want to display. Are you using slides (35 mm or digital) you made from
- printed books or journals?
- the library’s electronic databases and journals?
- works you found on a Web site?
Reproducing a picture, image, graph, etc. from printed works or works found on the Web, in whatever format, is not covered in section 110(1). Your reproduction must be able to qualify as a fair use (see question #4, below) or you need to seek permission. There is often a strong fair use argument in favor of this practice.
Reproducing works obtained from the library’s electronic databases and journals, on the other hand, is governed by the terms of the library's license. Consult your library to be confident this kind of use is permitted by the license.
For works found on the Web, consider accessing the work from a “live” projection of the site during class. This would avoid the reproduction question altogether.
d. Can I play music to my F2F class?
Yes.
e. Can I copy a chapter or article as a handout for my lecture?
You may be able to make such handouts, but you must turn to fair use for your answer. (See question #4, below.) Also, remember that copyright law does not prevent you from directing your students to a link to the copyrighted work, if you are lucky enough to have it online.
Transmitting Performances and/or Displays: Teaching Online
As soon as you transmit a performance or display of a copyrighted work, you are no longer within § 110(1); the act of transmitting has moved your situation into §110(2), otherwise known as the TEACH Act.
Yes, this section specifically applies to displaying images, playing motion pictures or sound recordings, or performing works in your online class. Since this section applies to any “transmissions” of performances or displays, cable television classes would also be included here.
There are a number of institutional and faculty member obligations that must be fulfilled in order to quality for the TEACH Act exception. Consult your library or university counsel on whether and how the TEACH Act is implemented locally. If your university cannot or does not wish to comply with TEACH Act obligations, consider whether what you have in mind for your online course is a fair use. (See question #4, below.)
If you do wish to explore the TEACH Act option, here is a brief description of the faculty member’s obligations. Generally, to transmit the performance or display of a work in your online class the work must be
• used under your supervision
• as part of the class session
• as part of systematic mediated instructional activities
• directly and materially related to the teaching content
The work must be lawfully made and not excerpted from a product that was specifically designed and marketed for use in an online course. Furthermore, there are three additional requirements:
• You must password protect or otherwise restrict access to your online class Web site to enrolled students, and
• You must reasonably prevent your students from being able to save or print the work, i.e., control the “downstream” uses, and
• You must include a general copyright notice on your class Web site.
4. Does the fair use provision of the copyright law justify my proposed use?
The fair use provision of the Copyright Act (§107) is always potentially available as an option, even if another specific and more restrictive provision of the law also applies. That means you can choose whether you wish to rely on fair use (if your use qualifies). Fair use is a very important provision of the law for educators. What is it?
Fair use allows limited use of copyrighted material without requiring prior permission from the copyright holder. The statute lists four factors to be weighed when making a reasonable, good-faith analysis of the proposed use in order to determine whether it is a fair one. Consideration of all factors is required, although all factors do not have to be in favor of a use to make it a fair one.
A fair use analysis is necessarily a fact-driven one. Each unique set of facts regarding a proposed use leads to its own reasoned conclusion. Reasonable individuals may come to different decisions concerning the same set of facts, but the operative word is "reasonable."
The four fair use factors are as follows:
1. The purpose and character of the use, including whether the 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.
For assistance in analyzing these factors relative to your proposed use, see the Fair Use Considerations Worksheet.
5. Do I need permission from the copyright holder for the use I propose?
If you wish to pursue permission for your use, you will need to identify and locate the copyright holder, a task often easier said than done. Sample letters and suggestions can be found at this Permissions Guide. Allow yourself plenty of time and patience. See below if you can’t reach a copyright holder.
a. What if they say no but now I believe fair use or a specific provision of the copyright law applies? Am I disadvantaged because I asked?
Previous payment of a fee or even outright denial of permission does not preclude you from exercising your rights under the Copyright Act. You can still employ an appropriate specific provision or the fair use provision and there is no presumption against you for having asked permission.
b. What if they don’t respond?
Lack of response does not translate into a passive grant of permission to use. If your proposed use exceeds all provisions of the law, including fair use, you probably need to direct your students to a link to the work, find another work to use, or modify your proposed use to fit within fair use.
c. What if the work is out of print? Is that the same as out of copyright?
“Out of print” is not the same as “out of copyright.” An out of print work may still be protected by copyright and should be approached the same as a work still in print.
d. What if I can’t find current contact information for the copyright holder? For example the publisher is out of business or the author is deceased?
These situations present the problem of a work whose copyright holder cannot be located, despite reasonable efforts. The US Copyright Office has recognized this problem, calling such works “orphan works.” Much work is currently being done to create an exemption in the law that would encourage uses of such works by mitigating the liability risk.
At the present time, however, educators and libraries must make individual decisions concerning their use of such works, including evaluating the risk of liability. Those who proceed with their use should document and preserve their efforts to locate the copyright holder.
