Originating in the copyright clause of the Constitution, copyright protection, expressed in Title 17 of the U.S. Code, is a privilege extended to creators of "original works of authorship fixed in any tangible medium of expression, now known or later developed."
Copyrightable works include literary works; musical works; dramatic works; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; computer programs; and architectural works.
Copyright laws give the author/owner of original works exclusive rights to do and to authorize any of the following:
- Reproduce the copyrighted work
- Prepare derivative works
- Distribute copies by sale or other transfer of ownership
- Perform or display the copyrighted work publicly, as in literary, musical, dramatic, or choreographic works, pantomimes, motion pictures and other audiovisual works, or works of art.
The copyright law is violated whenever a third party exercises any of the above rights without authorization of the copyright owner and without having express permission to do so under the law. The law has provided that certain limited uses of copyrighted materials may be made without the author's permission and without infringing the author's copyright. One widely used exception to the copyright owner's exclusive control over the copying and distribution of his work is found in 17 U.S.C. 107 pertaining to fair use.
Fair use eliminates the need to obtain permission or pay royalties for "purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, and research." However, this important statute does not specifically set forth what is permissible and what is infringement. Instead, the user must determine if his or her use is a fair one on a case-by-case basis.
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
- the purpose of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes ("multiple copies for classroom use" is an acceptable purpose);
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole ("There is no specific number of words, lines, or notes that may be safely taken without permission." Generally, excerpts are favored over entire works. Be aware that in some cases, a small portion could capture the heart or essence of a work and be considered infringement.); and
- 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.
A. Photocopying that is Completely Unrestricted
1. Published Works Which Were Never Copyrighted
Anyone may photocopy, without restriction, works published prior to 1989 without a notice of copyright.
A notice of copyright consists of the copyright symbol or the word "copyright," plus the first year of publication and the name of the copyright owner. Writings published without copyright notices prior to January 1, 1978 are not protected. Publication is defined to mean the distribution of copies of a work to the public by sale or other transfer of ownership, or by rental, lease, or loan.
Notice requirements for works published between January 1, 1978, and February 28, 1989, were relaxed somewhat with respect to both the position of notices and the inadvertent omission of them. Effective March 1, 1989, the requirement that a work have a notice of copyright was abolished. Thus, any work created or published after March 1, 1989 is protected by copyright even if no notice of copyright is affixed.
2. Published Works Whose Copyrights Have Expired
Anyone may photocopy, without restriction, published works on which the copyright term and any renewals thereto have expired.
Copyrights dated 1924 (75 years prior to the current year) or later may or may not have expired, depending upon whether its owner renewed the copyright after the first term of protection. Thus it is recommended that photocopiers either assume the protection is still in effect, or ask the copyright owner or U.S. Copyright Office whether the work is still subject to copyright protection. Usually a publisher owns the copyright or knows the owner's location. If not, an owner can be located through the
U.S. Copyright Office at the Library of Congress, Washington, D.C., 20559.
3. U.S. Government Publications
U.S. government publications may be photocopied without constraint, except to the extent that they contain copyrighted work from other sources. This classification consists of documents prepared by an officer or employee of the U.S. government as part of that person's official duties. It does not extend to documents published by others with the support of U.S. government grants or contracts. Because such documents may or may not be copyrighted, educators should consult the publication for a copyright notice.
B. Photocopying that is Permitted as Fair Use
In an effort to further clarify the limits of fair use, an ad hoc committee of publishers, authors, and educational institutions prepared a set of guidelines for classroom copying in not-for-profit educational institutions. These guidelines are generally considered to establish minimum permissible conduct under the fair use doctrine for unauthorized copying; however, these guidelines are not binding on the courts.
1. Single Copies
For teaching, including preparation for teaching, and for scholarly research, an instructor may make, or have made at his or her individual request, a single copy of:
- one chapter from a book;
- one article from a periodical or newspaper;
- one short story, essay, or short poem;
- one chart, graph, diagram, drawing, cartoon, or picture from one book or periodical.
2. Multiple Copies
For one-time distribution in class to students, an instructor may make, or have made, multiple copies if he or she:
- makes no more than one for each student;
- includes the notice of copyright;
- is selective and sparing in choosing poetry, prose and illustrations;
- makes no charge to the student beyond actual cost of photocopying;
- the copying meets the tests of "brevity" and "spontaneity" and "cumulative effect" as defined below:
a. The copying meets the test of "brevity":
- Poetry: a complete poem of fewer than 250 words printed on no more than two pages, or an excerpt from a longer poem not to exceed 250 words;
- Prose: a complete article, story or essay of less than 2500 words, or an excerpt from any prose work of not more than 1000 words or 10% of the work, whichever is LESS, but in any event a minimum of 500 words;
- Illustrations: one per book or article;
- "Special" works (poetry and/or prose that combines language and illustration, such as a children's book): the work may not be reproduced in its entirety; however, excerpts may be reproduced of no more than two pages, totaling less than 10% of the work.
b. The copying meets the test of "spontaneity":
- The copying is at the instance and inspiration of the individual teacher;
- The inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission.
c. The copying meets the "cumulative effect" test:
- The material copied is for use in one course;
- Not more than one short poem, article, story or essay or two excerpts of the above may be copied from the same author, nor more than three copies from the same collective work or periodical volume during one class term;
- There shall be no more than nine instances of such multiple copying for one course during one class term.
In any case of photocopying that meets the above requirements, the original copyright notice must appear on all copies of the work.
C. Copying For Which Permission Must Be Obtained
The guidelines prohibit the following:
Copying shall not be used to create, replace, or substitute for anthologies, compilations, or collective works. Such replacement or substitution may occur whether copies of various works or excerpts therefrom are accumulated or reproduced and used separately.
2. Consumable Works
There shall be no copying of or from works intended to be "consumable" in the course of studying or teaching. These include workbooks, exercises, standardized tests, test booklets and answer sheets, and like consumable material.
3. Unpublished Works
One should obtain permission from owners of unpublished works in order to copy them. The law gives automatic protection to unpublished works from the time they are created until they are published.
4. Copying Shall Not Be a Substitute for the Purchase of Books or Periodicals
5. Repetitive Copying
Copying of the same material by the same teacher from term to term is not permitted.
A. Reproduction by Libraries
1. Photoduplication and Document Delivery
In general, it is not a violation of the Copyright Act for a library to reproduce or distribute no more than one copy of a work, provided the following conditions are met:
- the reproduction or distribution is made without any purpose of direct or indirect commercial advantage;
- the collections of the library or archives are open to the public;
- the reproduction of the work includes a notice of copyright. All copies generated by the library and covered under this section must bear a copyright notice as follows: "Notice: This material may be protected by copyright law (Title 17, U.S. Code)."
a. Articles and Small Excerpts
Libraries are authorized to reproduce and/or distribute a copy of not more than one article or other contribution to a copyrighted collection or periodical issue, or of a small part of any other copyrighted work. The copy may be made by the library where the patron makes his or her request, or by another library pursuant to an interlibrary loan.
The copy must become the property of the user, and the library or archives must have no notice that the copy will be used for any purpose other than private study, scholarship, or research.
b. Out-of-Print Works
Libraries may reproduce and/or distribute a copy of an entire work under certain circumstances, if it has been established that a copy cannot be obtained at a fair price. Such a determination will require inquiries to commonly-known trade sources in the United States, and ordinarily also to the publisher or other copyright holder.
The copy must become the property of the user, and the library or archives must have no notice that the copy will be used for any purpose other than private study, scholarship, or research.
c. Multiple Copies and Systematic Reproduction
The rights of reproduction and distribution under Section 108 extend to the isolated and unrelated production of a single copy of the same material on separate occasions, but do not extend to cases where the library or archives is aware or has substantial reason to believe that it is engaging in related or concerted reproduction of multiple copies of the same material, whether made on one occasion or over a period of time, and whether intended for aggregate use by one or more individuals or for separate
use by the individual members of a group.
2. Replacement of Damaged Copy
The University Libraries may reproduce a published work solely for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost or stolen, if it has determined that an unused replacement cannot be obtained at a fair price. [See paragraph III. A. 1. a.]
3. Archival Reproduction
Libraries may reproduce and/or distribute a copy or phonorecord of an unpublished work for the purposes of preservation and security, or for deposit for research use in another library or archives, if the copy is currently in the University library collections. This right extends to any type of work, including photographs, motion pictures and sound recordings.
Libraries and their employees are specifically exempted from liability for the unsupervised use of
photocopy machines located on their premises, provided that the equipment displays a notice that the making of a copy may be subject to the copyright law. This exemption does not extend to the person using the equipment or requesting such copy if the use exceeds fair use.
B. Reserve Room Use of Copyrighted Materials
According to the American Library Association Model Policy Concerning College and University Photocopying for Classroom, Research and Library Reserve, the reserve unit functions as an extension of the classroom when it makes course readings available to students, and reflects an individual students right to photocopy for personal scholastic use under the doctrine of fair use. The following provisions governing such use are drawn from the ALA Model Policy:
1. General Provisions
At the request of a faculty member, the library may photocopy and place on reserve excerpts from copyrighted works in its collection in accordance with the guidelines governing formal classroom distribution [discussed in Section II of this document]. In general, library employees may photocopy and/or accept copies of materials for reserve room use for the convenience of students both in preparing class assignments and in pursuing informal educational activities which higher education requires, such as advanced independent study and research.
a. Single Copies Placed on Reserve
If the request calls for a single copy to be placed on reserve, the library may photocopy an entire article, an entire chapter from a book, or an entire poem.
b. Multiple Copies Placed on Reserve
Requests for multiple copies to be placed on reserve should meet the following guidelines:
- the amount of material should be reasonable in relation to the total amount of material assigned for one term of a course, taking into account the nature of the course, its subject matter and level;
- the number of copies should be reasonable in light of the number of students enrolled, and the difficulty and timing of assignments (in no case to exceed five copies of any given reading);
- the material should contain a notice of copyright as described in paragraph III. A. 1. above;
- the effect of photocopying the material should not be detrimental to the market for the work .
Libraries will not accept anthologies of readings, also known as course packets, for deposit in the reserve units. Only individual articles, including reprints and photocopies, as well as books and other monographs will be accepted as readings reserved for classroom use.
d. Repeated Use
Copies of copyrighted materials may not be retained on reserve for more than one term for any faculty member unless the library receives proof from the faculty member that permission to reproduce and distribute copies in this fashion has been granted by the copyright holder and that said reproduction is in accordance with all copyright laws.
C. Interlibrary Loan
The National Commission on New Technological Uses of Copyrighted Works (CONTU) prepared a set of guidelines governing photocopying and interlibrary arrangements in conjunction with Section 108 of the copyright law. Their provisions are as follows:
1. Restrictions on Number of Copies
Interlibrary Loan may not submit, during any calendar year, more than five requests for photocopies of articles from a particular periodical title if those requests are from issues published within the last five years. No restrictions are placed on the number of photocopies of articles requested for materials exceeding five years.
b. Books and Collective Works
Interlibrary Loan may not submit, during any calendar year, more than five requests for photocopies of excerpts from any given book or collective work in copyright.
Requests in excess of the above limits are subject to the copyright permissions process and payment of royalties, where applicable.
2. Record-Keeping Requirements
The requesting library must maintain records of all such requests and the fulfillment of requests for the current calendar year plus three previous calendar years.
All copies made by Interlibrary Loan and interlibrary loan order forms must bear a notice of copyright as described in paragraph III. A. 1. above.
In brief, the guidelines allow copies of videos and off-air tapes to be held for a 45 calendar day retention period. During the first 10 consecutive school days, the tapes may be used once in teaching activities and repeated once for reinforcement. After the first 10 days, the tapes can only be used for teacher evaluation purposes. At the end of the 45 day retention period, the tapes must be erased.
In addition, the taping can only be made at the request of individual teachers -- no advance taping in anticipation of requests is allowed. With restrictions, a limited number of copies can be made. The recorded programs may not be altered or included in anthologies or compilations. And, finally, the recording must include the copyright notice and a citation.
A. Reproduction of Copyrighted Music Material
1. Permissible Uses
Copyrighted music material may be photocopied under the following circumstances:
- emergency copying to replace purchased copies which for any reason are not available for an imminent performance, provided purchased replacement copies shall be substituted in due course;
- multiple copies of excerpts of works may be made for academic purposes other than performance, provided that such copying does not exceed 10% of the work and no more than one copy per student is made;
- printed copies which have been purchased may be edited OR simplified provided that the fundamental character of the work is not distorted or the lyrics altered or lyrics added;
- a single copy of recordings of performances by students may be made for evaluation or rehearsal purposes and may be retained by the educational institution or instructor;
- a single copy of a sound recording (such as a tape, disc or cassette) of copyrighted music may be made from sound recordings owned by an educational institution or instructor for the purpose of constructing aural exercises or examinations and may be retained by the educational institution or instructor. This pertains only to the copyrights of the music itself and not to any copyright which may exist in the sound recording.
Photocopying of copyrighted music material is prohibited under the following circumstances:
- copying to create or replace or substitute for anthologies, compilations, or collective works;
- copying of or from works intended to be "consumable" in the course of study or teaching such as workbooks, exercises, standardized tests, answer sheets, and like material;
- copying for the purpose of performance, except as noted in "permissible uses" above;
- copying for the purpose of substituting for the purchase of music except as noted in "permissible uses" above;
- copying without inclusion of the copyright notice which appears on the printed copy.
A. Face-to-Face Teaching Activities
Section 110(1) permits the performance or display of any copyrighted work in face-to-face teaching activities without having to obtain a public performance license if certain conditions are met. This section requires that the performance or display of a copyrighted work take place in a classroom or similar place of instruction (such as a school library). Also, the performance or display must be directly related to the curriculum and not connected with recreation or a reward. For example, treating a class to a movie (unrelated to course content) would require obtaining permission.
Section 110(2) permits the transmission of a performance of a non-dramatic literary or musical work or display of a work without having to obtain a public performance license if certain conditions are met. Permissible copyrighted works include singing a song, reciting a poem, reading a short story out loud, or displaying paintings. Plays, movies, and most audiovisual works are not "non-dramatic" and are not covered by this section.
Make note that the performance must be a "regular part of systematic instructional activities" and "directly related and of material assistance to the teaching content." Furthermore, the transmission must be made for reception in a classroom or similar place of instruction.
C. Live Performance
Section 110(4) permits a live performance (not televised) of a non-dramatic literary or musical work, without having to obtain a public performance license if certain conditions are met. Under this section, a performance must be without commercial advantage and non-dramatic (a concert, choral work, or poetry reading, for example). Performing dramatic works, such as plays and musicals, is only allowed in face-to-face teaching activities; here a license must be obtained.
The Digital Millennium Copyright Act of 1998 ("DMCA"), which addresses copyright issues regarding digital materials, was signed into law by the President on October 28, 1998. One of the provisions of the DMCA is to limit the liability of educational institutions for damages due to copyright infringement by members of their community. The College complies with all DMCA's requirements, including:
- all members of the College community must follow the College's Copyright Guidelines for digital material (see below)
- all members of the College community must adhere to the College's Acceptable Use Policy
- the designation of an Agent to receive notices of copyright infringement (Dorothy Hughes, firstname.lastname@example.org)
A. Computer Software
The College prohibits the improper copying, distribution, or use of contractually protected and/or copyrighted computer software. "Copying" not only entails duplicating floppy disks, but also takes place when a program is transferred from a floppy onto a hard disk, sent over a local area network, or sent over long distance lines via telecommunication. The following prohibitions and areas of caution are to be observed by all students, faculty and staff:
- Use of software may be restricted. For example, use of software may be restricted to a particular computer at a particular site. In such cases, permission of the copyright owner must be obtained in order to use the software on a different computer at a different site.
- Individual employees who acquire software for their professional use in the course of their duties must obtain any necessary licenses. If the software is purchased by the College, any licenses will be in the name of the institution. Employees may not make copies of software for associates or personal use.
- If the College supplies licensed software to students in the course of instruction in a classroom situation or in other than a classroom situation, sufficient licenses must be held for all users.
- Shareware is easily identifiable through explicit statements within the software documentation, or identification is displayed on the computer screen. Unless these explicit statements identify the software as shareware, the user should assume that it may NOT be duplicated.
- Software not containing a copyright notice is not necessarily in the public domain. The user should consult with the manufacturer to ensure that such software may be copied freely.
The Fair Use Guidelines for Educational Multimedia were released by the Conference on Fair Use (CONFU) in 1997 with the endorsement of the U.S. Copyright Office. These new guidelines are currently undergoing a trial use and monitoring period.
Educational Multimedia Projects:
"Educational multimedia projects created under these guidelines incorporate students' or educators' original material, such as course notes or commentary, together with various copyrighted media formats including but not limited to, motion media, music, text material, graphics, illustrations, photographs and digital software which are combined into an integrated presentation."
- Students may perform and display their own educational multimedia projects for the course for which they were created and may use them in their own portfolios as examples of academic work.
- Educators may perform and display their own education multimedia projects for face-to-face instruction, assigning to students for directed self-study, peer conferences, and professional portfolios.
- Time Educators may use their projects for teaching courses for two years. Use beyond that time period requires obtaining permission for each copyrighted portion.
- Portion Portions are generally specified "in the aggregate," meaning the total amount that can be used from a single copyrighted work.
- Motion Media Up to 10% or 3 minutes, whichever is less, from a single copyrighted work.
- Text Material Up to 10% or 1000 words, whichever is less, from a single copyrighted work. Special limitations are placed on poems.
- Music, Lyrics, and Music Video Up to 10%, but in no event more than 30 seconds, of the music and lyrics from an individual musical work.
- Illustrations and Photographs No more than 5 images by an artist or photographer. From a published collective work, no more than 10% or 15 images.
- Data Sets Up to 10% or 2500 fields or cell entries from a database or table.
- Copying and Distribution There may be no more than two copies, only one of which can be placed on reserve. An additional copy may be made for preservation (backup) purposes.
When Permission is Required:
Educators and students must seek individual permissions for all copyrighted works incorporated in their educational multimedia projects for non-educational or commercial purposes, duplication beyond guidelines limitations, and for distribution over an electronic network other than the remote instruction uses.
Educators and students are advised to exercise caution in using digital material downloaded from the Internet in producing their own educational projects, because there is a mix of works protected by copyright and works in the public domain on the network. Access to works on the Internet does not automatically mean that these can be reproduced and reused without permission or royalty payment and, furthermore, some copyrighted works may have been posted to the Internet without authorization of the copyright holder.
Users have the responsibility to keep copyrighted software of any kind from entering the College via the Internet.
Because the Copyright Law and related guidelines have not specifically addressed this new technology, the best strategy is to apply the existing law (and especially the fair use doctrine) to the Internet:
- Face-to-face teaching activities permit the display of copyrighted works, including web pages, in classrooms and similar places devoted to instruction. Downloading a web page and storing it for use in an offline browser, however, requires obtaining permission from the site's webmaster.
- Copying Internet materials to paste onto a College web page or incorporate into a multimedia project also requires obtaining permission. E-mailing a site's webmaster is a good way to seek permission (be sure to save a record of your e-mail correspondence).
Finally, always properly credit your sources.
D. Distance Learning
The Conference on Fair Use (CONFU) was unable to agree on Educational Fair Use Guidelines for Distance Learning. Recognizing this, the Digital Millennium Copyright Act of 1998 requires the Copyright Office to "initiate consultation with representatives of copyright owners, nonprofit educational institutions, and nonprofit libraries and archives [and] submit to the Congress recommendations on how to promote distance education through digital technologies, including interactive digital networks, while maintaining an appropriate balance between the rights of copyright owners and the needs of users of copyrighted works."
These recommendations on distance education exemptions will eventually lead to a revision of Section 110(2) of the Copyright Act. Until then, the following should always be considered:
Some attorneys consider certain types of materials and delivery mechanisms -- such as interactive television (compressed video) -- to be covered, or at least defensible, under Section 110, the classroom exemption. These individuals believe that Section 110(2)(C)(ii) may provide some protection for course delivery to certain groups of adult learners in remote sites.... However, there are equal opinions to the effect that very little copyrighted material may be transmitted or broadcast over a distance education network without proper written permission or licensing agreements. Thus, it is highly advisable to obtain permission unless one is ready to take risks, be sued, and serve as a test case for the field.
- Copyright Legislation
- Copyright Legislation. Link (via Thomas) to the text of legislation in Congress (both pending and passed) from this U.S. Copyright Office page.
- U.S. Copyright Office: NewsNet. Stay informed with this e-mail news service. "NewsNet alerts subscribers to hearings, deadlines for comments, new and proposed regulations, new publications, and other copyright-related subjects of interest."
- THOMAS -- U.S. Congress on the Internet. Entering the search term "copyright" in the Library of Congress legislative database will turn up a long list of bills from the 105th Congress.
- Digital Millennium Copyright Act
- Digital Millennium Copyright Act: H.R.2281/Public Law 105-304. An original bill to amend title 17, United States Code, to implement the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, to provide limitations on copyright liability relating to material online, and for other purposes. Signed by President on Oct 28, 98. Now Public Law 105-304.
- SUNY Copyright Policy
- Fair Use of Copyrighted Works. CETUS (SUNY/CUNY/California State) Discussion Series pamphlet on copyright and fair use in education.
- U.S. Copyright Office: Copyright Internet Resources. See the links to "Copyright Licensing Organizations & Publications Rights Clearinghouses."
- Getting Permission. A detailed guide from the University of Texas System.
- Copyright Clearance Center Online. "Copyright Clearance Center (CCC) is a not-for-profit organization created at the suggestion of Congress to help organizations comply with U.S. copyright law. Through its collective licensing programs, CCC provides authorized users with a lawful means for making photocopies from its repertoire of more than 1.75 million titles." Click "Services Guide" to access APS (Academic Permissions Service). APS gives you permission to make academic coursepacks or classroom handouts. The APS Demo allows you preview APS and search the CCC Online catalog to locate titles and see individual royalty fees.
- Circular 22: How to Investigate the Copyright Status of a Work. This Copyright Office circular provides practical guidance on what to look for to determine if the work you plan to use is under copyright protection.
- When Works Pass Into the Public Domain. Use this chart to find out if an older work is in public domain or still protected by copyright.