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(The following
material is excerpted from a guide published by the University
of Maryland, which can be found on the Web at http://www.umuc.edu/library/copy.html).
This page is devoted primarily to the
use of copyrighted materials in classroom teaching. You
may want to look at CBU's Interlibrary
Loan and Reserve policies,
which address related copyright issues.
Fair use is the most significant
limitation on a copyright holder's exclusive rights. Deciding
whether the use of a work is fair IS NOT a science. There
are no set guidelines that are universally accepted. Instead,
the individual who wants to use a copyrighted work must
weigh four factors:
- The purpose and character of the use:
- Is the new work merely a copy of the original? If it is, it
may not be fair use.
- Does the new work offer something above and beyond the original
or transform the original work in some way? If the work is altered
significantly, used for another purpose, or appeals to a different
audience, it is more likely fair use.
- Is the use of the copyrighted work for nonprofit or educational
purposes? If so, it is more likely to be fair use.
- The nature of the copyrighted work
- Is the copyrighted work published or unpublished? Unpublished
works are less likely to be considered fair use.
- Is the copyrighted work out of print? If so, it is more likely
to be fair use.
- Is the work factual or artistic? The more a work tends toward
artistic expression, the less likely it will be fair use.
- The amount and substantiality of the portion used
- The more you use, the less likely it will be fair use.
- Does the amount you use exceed a reasonable expectation? If
it approaches 50% of the entire work, it is likely to be an unfair
use of the copyrighted work.
- Is the particular portion used likely to adversely affect the
author's economic gain? Using the "heart" or "essence"
of a work is less likely to be considered fair.
- The effect of use on the potential market for the
copyrighted work
- The more the new work differs from the original, the less
likely it will be considered an infringement.
- Does the work appeal to the same audience as the original? If
so, it will more likely be an infringement.
- Does the new work contain anything original? If it does, it
is more likely that the use will be considered fair use.
What are the rules for fair use for
instructors?
Copying by teachers must meet the tests of brevity and spontaneity.
- Brevity refers to how much of the work you can
copy.
- Spontaneity refers to how many times you can copy.
According to the rule, the need to copy should occur closely in
time to the need to use the copies (as if there were not enough
time to seek permission). If you use something for one semester,
it is likely to be seen as fair use. If you use something repeatedly,
it's less likely to be fair use. The expectation is that you will
obtain permission as soon as it is feasible. Using something over
a period of years is not within the spirit of the guidelines.
What should be avoided?
- Making multiple copies of different works that could substitute
for the purchase of books, publisher's reprints, or periodicals.
- Copying the same works from semester to semester.
- Copying the same material for several different courses
at the same or different institutions.
- Copying more than nine separate times in a single semester.
Is information on the Internet part
of the public domain?
- Always assume that a work is copyrighted. The Internet IS
NOT the public domain, as there are both copyrighted and uncopyrighted
materials available.
- Find out if the author of a work (e.g. video, audio, graphic,
icon) provides information on how to use the work. If explicit
guidelines exist, follow them.
- Whenever feasible, ask the copyright owner for permission.
Keep a copy of your request for permission and the permission
received.
A note about "special works"...
- These are defined as "Works that combine language and
illustrations and which are intended sometimes for children
and at other times for a general audience." A child's
book is an example.
- Special works should never be copied in their entirety.
- An excerpt of no more than two pages or 10 percent, whichever
is less, is the rule for special works.
- The use of the copies should be for one course at one school.
- The copies should include a notice of copyright acknowledging
the author of the work
COPYRIGHT
BASICS
What is copyright?
"Simply put, copyright
is a legal device that provides the creator of a work of art or
literature, or a work that conveys information or ideas, the right
to control how the work is used."
- Steven Fishman, Esq., The Copyright Handbook, 1996.
The intent of copyright
is to advance the progress of knowledge by giving the author of
a work an economic incentive to create new works.
What can be copyrighted?
Tangible, original expression. This means, for example,
that a verbal presentation which is not recorded cannot
be copyrighted. However, anything tangible can be copyrighted.
There are three fundamental requirements
for something to be copyrighted:
- Fixation: The item must be fixed in some
way. For example, a piece of paper, a computer disk, an audiotape,
or a videotape are all legitimate forms of fixation.
- Originality: The work must be original.
Examples of originality include a student's email message to
a professor, as well as a novel. Both are considered examples
of original expression. It is not necessary for a work to be
completely original. Works may be combined, adapted, or transformed
in new ways that would make them eligible for copyright protection.
- Minimal creativity: The work must
include something that is above and beyond the original. Verbatim
use is not considered original. Reference to the original work
that is used to discuss a new concept would be considered original,
however. Creativity need only be extremely slight for the work
to be eligible for protection.
What cannot be copyrighted?
- Works in the public domain:
- Ideas are in the public domain.
- Facts are in the public domain.
- Words, names, slogans or other short phrases cannot be copyrighted.
However, slogans can be protected by trademark law.
- Blank forms
- Government works, which include judicial opinions; public
ordinances; administrative rulings
- Works created by federal government employees as part of their
official responsibilities
- Works for which copyright wasn't obtained or copyright has
expired
What does copyright protect?
Copyright provides authors fairly substantial control over their
own work. The four basic protections are:
- The right to make copies of the work
- The right to sell or otherwise distribute copies of the work
- The right to prepare new works based on the protected work
- The right to perform the protected work (such as a stage play
or painting) in public
HELPFUL
LINKS
- Know
Your Copy Rights (PDF brochure)
Print this easy- to-scan explanation of when and how you
may legally use intellectual property in your teaching,
often without requesting permission or paying fees.
- Campus
Guide to Copyright Compliance
This guide from the Copyright Clearance Center answers
difficult copyright questions and provides guidelines
and resources—including a sample compliance policy—to
help academic institutions ensure copyright compliance
campus-wide.
- Distance
Education and the TEACH Act
From the American Library Association.
- Baruch
College's Guide to Using Copyrighted Media in Your Courses
Free, interactive guide helps faculty determine appropriate
copyright guidelines to follow in using different types
of copyright-protected media in courses. Requires Flash
Player.
- Copyright
and Fair Use: Stanford University Libraries
- Copyright
Law and Graduate Research
- Copyright
Management Center
Offers in-depth information on the fair use concept for
educators; explanations of major Supreme Court decisions
including the TEACH Act.
- Copyright
Term and the Public Domain in the United States
Information table from Cornell Copyright Information Center,
updated January 2005.
- Crash
Course in Copyright
University of Texas site gives overview of copyright and
its applications in educational settings. Includes explanation
of fair use guidelines for educators.
- United States
Copyright Office (Library of Congress)
Permission to use a copyrighted work is required:
- When you intend to use the materials for commercial
purposes
- When you want to use the materials repeatedly
- When you want to use a work in its entirety
and it is longer than 2,500 words
Invariably, each member of the university
community encounters situations where we need to obtain
permission from a copyright owner. At the Copyright
Clearance Center (http://www.copyright.com), you can
get permission to reproduce copyrighted content such as
articles and book chapters in your photocopies, coursepacks,
library reserves, Web sites, e-mail, and more. The CCC
acts as an agent, so you don't have to deal directly with
the publishers and authors themselves.
From "Obtaining
Permissions" (www.cetus.org/fair7.html)
A common situation might involve photocopying an entire article
or book chapter into a course reader that students will purchase,
or mounting substantial text or graphic work onto a publicly accessible
web page.
If you do not obtain permission through an authorized agent
such as the CCC, you must contact the copyright owner. Often
the copyright owner is named in the formal copyright notice
accompanying the work. Such notices are no longer required
to obtain copyright protection, so many works lack the notice
or include the name of someone who is not the current copyright
owner. Nevertheless, you should logically begin your search
for the copyright owner by directly contacting the author
or publisher. Reference librarians can help in finding names
and addresses. Your quest for the copyright owner can be
simplified by calling the parties on the phone and asking
direct questions about ownership and rights of use.
Please bear in mind that copyright
owners have wide discretion when responding to your request
for permission. Your permission may be granted, denied,
or granted, but only on condition of paying a fee. The
fee may be modest or exorbitant. Copyright owners have
no obligation to respond at all. For most common uses
of materials for educational and research purposes, you
will often find that copyright owners are cooperative
and understand your needs.
The following is a sample letter to
adapt when requesting permission. Remember that a telephone
call before sending a letter may give you the exact name
and address of the person to contact or even give you
an immediate answer to your request. Oral permission granted
over the telephone is legally valid, but good practice
requires that you document the permission with a letter
that the grantor will sign and return to you.
Sample Letter
[letterhead stationery or return address]
[Date]
[Name and address of addressee]
Dear [title, name]:
[If you called first, begin your letter: This letter will confirm
our recent telephone conversation.] I am [describe your position]
at [name of university]. I would like your permission to [explain
your intended use in detail, e.g., reprint the following article
in a coursepack for my course.]
[Insert the full citation to the original work.]
Please indicate your approval of
this permission by signing the letter where indicated below and
returning it to me as soon as possible. My fax number is listed
above. Your signing of this letter will also confirm that you
own [or your company owns] the copyright to the above described
material.
Thank you very much.
Sincerely,
[Your name and signature]
PERMISSION GRANTED FOR THE USE REQUESTED ABOVE:
[Type name of addressee below signature line]
Date:
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