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VC/UHV Library |
Copyright Tutorial Table of Contents
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16. DMCA |
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19. Bibliography and list of resources (very helpful!) |
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What is Copyright?
Copyright is defined as the exclusive right of the creator to reproduce, prepare derivative works, distribute, perform, display, sell, lend or rent their creations.
Copyright law is based on the Constitution
"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"
U.S. Constitution, Article 1, Section 8, Clause 8
Copyright is a federal law (17 U.S.C. 101 et. seq.). It allows authors to control the use of their works for a limited period of time. Once that time period has expired, the public is allowed to freely use the works without paying royalties or obtaning permission from the copyright holder.
The last major revision to the copyright law of the United States was the Copyright Act of 1976. It set forth the law that, with some small provisions, is still in effect today. The passage of the TEACH Act in 2002 updated Section 110 for distance education technology.
What is/is not covered by copyright law?
Please note: the items in 'not covered' may be covered by other types of law such as licensing, patent, trademark, etc.
Covered: Original works of authorship
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Not covered:
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What is protected and for how long?
How can you tell if something is copyrighted?
The work must be an original work that is fixed in a tangible medium of expression. All works in a fixed medium, whether published or unpublished, are copyright protected. This includes:
- Literary, musical and dramatic works
- Pantominmes and choreographic works
- Pictorial, graphic and sculptural works
- Sound recordings
- Motion pictures and other AV works
- Computer programs
- Compilations of works and other derivative works
- Architectural works
The copyright symbol is not necessary for a work to be copyrighted--it is automatic. Works do, however, need to be registered with the Copyright Office before legal action can be taken.
Works that are not copyrighted include:
- Ideas, procedures, methods, systems and processes (these can, however, be protected by patent law)
- Titles, names, short phrases and slogans (again, patent or trademark law)
- Facts, news and research
- Works produced by United States goverment employees and some state agencies
- Works in the public domain
- Works in which no copyright is claimed
How long is a work protected?
Works published before 1923
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Works published between 1923 & 1963
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Works published between 1964 & 1977
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Works published after 1977
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Librarycopyright.net has an excellent online tool for determining copyright status.
Rights of the copyright holder
The Copyright Act grants 5 rights to the copyright holder:
1] Reproduction of the work (copies or phonorecords)
2] Adaptation or creation of derivative works
3] Distribution of copies or phonorecords by sale, gift, rental lease or lending
4] Public performance of the work (for literary, musical, dramatic works and dance, plus motion pictures and other audiovisual works)
5] Public display of the work (for literary, musical, dramatic, pantomime, and dance works, plus pictorial, graphic, sculptural works and individual images from motion pictures and other audio visual material)
DefinitionsPerform - To "Perform" a work means to recite, render, play, dance, or act it, either directly or by means of any device or process, or, in the case of a motion picture or other audiovisual work, to show images in any sequence or to make the sounds accompanying it audible.
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Penalties and Liability
Penalties for copyright infringement may be actual or statutory. For schools, damages would most likely be statutory, with fines ranging from $250 to $10,000 per work infringed upon. Legal fees and court cost may also be included. Damages for willful violation may be as high as $100,000 per instance. In 1992, the penalty for infringement of computer software copyright (piracy) was raised to felony status, with fines up to $250,000.
Liability for copyright infringement may extend up the chain of command, from librarian or instructor, to dean, president and system liability. Employees can be considered "contributory infringers" if the assisted or helped the infringer or where in a position to control the use of a copyrighted work.
Fair Use (Section 107)
The limitations of these rights that allow educators to use copyrighted materials is Fair Use. These rights may also be sold, licensed or given away by the owner. It is possible that several persons may own different rights to the same work. Copyright is violated if even one of the five rights is abridged.
Regarding works for hire: the employer has the right to control the manner and means by which the work is produced. The copyright is owned by the employer if the work was produced in service to the employer.
Section 107, Title 17, U.S. Code
"Not withstanding the provisions of Section 106, the fair use of a copyrighted work, including such use in reproduction in copies or phonorecords or by any means specified by that section, for purposes such as criticism, comment, news rporting, teaching (including multiple copies for classroom use), scholarship, or research is not an infringement or copyright."
What is Fair Use?
Fair Use is intended to balance the rights of copyright holders with society’s legitimate need to make copies in certain limited circumstances. Fair use lets you make a copy for you or your class for educational use with certain limitations.
Congress has set forth four provisions to be considered in deciding whether copying falls under Fair use:
1]The purpose and character of the use (is it a non-profit educational purpose?)
2]The nature of the copyrighted work (is it more creative or factual?)
3] The amount and substantiality used (how much of the work are you copying and is it the "meat" of the work?)
4] The effect of the use on the potential market for the work
Let’s examine each of these factors, one by one, for an explanation...
1] Purpose of the use
The first factor asks primarily whether the use is of a commercial nature or whether it is intended for educational use.
Favors fair use
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Favors permission
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2] Nature of the copyrighted work
Factual material has little protection since facts cannot be copyrighted. A list of common facts such as the 10 longest rivers cannot be copyrighted (however the format can). Highly creative material (novels, poems, artwork, web page design, etc.) would be much more likely to be protected.
Favors fair use:
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Favors permission
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3] Amount and substantiality used
If you plan to copy the entire poem, book, article, webpage, etc., then you better be sure you meet the other 3 factors. The more you are using, the less leeway you have. The substantiality of the excerpt is important also. You may use only a small part of a work, but it may be the "creative essence" of the work.
Favors fair use
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Favors permission
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4] Effect on potential market
This is the factor that the courts place the most weight on. Did the use deprive the copyright owner of a sale. If everyone made similar use of the material, what effect would it have?
Favors fair use
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Favors permission
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If the balance weighs in favor of fair use, then the work can be used without permission. All educational use is not automatically fair use. Fair use applied to all mediums of transmission, so may be applied regardless of the technology.
Congressional Guidelines
The 1976 Copyright Act did not define Fair Use; it merely set out four factors to consider in which fair use might be applicable.
The House of Representatives established guidelines for making single copies for educational use. These are guidelines only; they are not law and should only be used as a general reference. They are there to establish a "safe harbor" within which educators may use materials without permission from copyright holders.
The House guidelines state that teachers may make single copies of the following:
- A chapter from a book;
- An article from a periodical or newspaper;
- a short story, essay or poem, whether or not from a collective work;
- a chart, graph, diagram, drawing, cartoon or picture from book, periodical or newspaper
Libraries and Fair Use
Educators may also find certain services provided by libraries useful in making single copies available to students. For research purposes, a teacher may select books, magazine or journal articles or other documents to be placed in the library’s Reserve collection, which functions as an extension of the classroom. Students may borrow these materials and make a single copy on machines that are plainly marked with notices citing protection of the works under the Copyright Act, Section 108. The students, as users of self-service photocopies, are held accountable for any copyright violations.
Copies of items may also be placed on Reserve for student use for one semester. A second semester, whether subsequent or not, would require permission. The library will request permissions if necessary.
Items may be placed on electronic reserve following the same requirements and restrictions provided that access is limited to students enrolled in the class only. The library will handle any copyright clearance necessary for items that you would like to place on Reserve.
Multiple Copies for Classroom Use
Using the guidelines (not law) set by Congress in the 1976 Act, a teacher may make multiple copies for students provided that:
Multiple copies (not to exceed more than one copy per pupil in a course) may be made by or for the teacher giving the course for classroom use or discussion, provided that the copying
- meets the test of brevity and spontaneity defined below;
- meets the accumulative effect test as defined below; and
- each copy includes a notice of copyright
Brevity:
- For an article, the limit is 2,500 words
- For a longer work of prose, the limit is a 1,000 words, or 10% of the work, whichever is less
- For a poem, the limit is 250 words
- No more than one chart, diagram, cartoon or picture from a book, periodical or newspaper
Spontaneity:
- The copying must be done at the initiative of the teacher, not mandated by the Dean or some higher authority for every section of a class.
- The is no reasonable expectation of obtaining permission in a timely manner
Accumulative effect:
- No charge is made to the students except to recover copying charges
- The copying is done for only one course
- The same item is not reproduced from term to term
No more than...
- One work is copied from a single author
- three authors are copied from a collective work
- nine instances of multiple copying occur during a single semester
- "consumable works" may never be copied (i.e. workbooks, standardized tests)
You may not put copies into collected works (anthologies) such as coursepacks without permission. Copying shall not substitute for the purchase of books, reprints or periodicals.
Remember, these are guidelines, not laws, and are to be considered a "safe harbor" for educators. They are the minimum boundaries for making copies. Requesting permission for more is always an option as well as applying the fair use factors.
Audiovisual Materials
An AV work is composed of sound, sequence of pictures or both. AV works include motion pictures, videos, audiocassettes, CDs, DVDs, etc. AV should not be confused with multimedia which may include several types of AV materials, but has different guidelines.
When discussing AV works, we are talking about Performance and Display rights as well as Fair Use.
The 1976 Copyright Act provided for performance and display(Section 110) in face-to-face teaching situations only. Performance and display to distance students were not allowed under this law unless permission was given or performance rights were licensed with the AV item. Many videos today allow performance rights in the purchase and the library includes this whenever possible. If performance rights are covered under a purchase agreement, then fair use or the TEACH Act cannot be applied; a licensing agreement takes precedence. Transmission over a closed-circuit television within the same building may be permissible. Section 110(2) was amended by the TEACH Act in 2002 to allow transmission of materials to distance education students(see Distance Education section for more on TEACH).
Guidelines for AV Materials
ALL of the following conditions must be met for a use to fall under Fair Use. If all five are met, then public performance permission is not required, but if the answer to even one is no, then permission must be received.
- The display or performance must be in a non-profit educational institution (no problem here)
- The performance must be by and for students and/or teachers in a class for educational purposes (must related in a timely manner to the lesson at hand for the class only)
- The performance must take place in a classroom or other instructional setting (no class trips, cafeterias, etc.)
- The media must be legally acquired (no copying is allowed of audio visual materials. Can be rented, borrowed, or owned
Some other considerations when performing or displaying AV:
- Music may be in the public domain, but the performance and arrangement can be copyrighted
- Synch rights must be obtained for background music
- No admission may be charged in a school setting (band concerts). Performance may be fair use, but a copy of the actual print music must be legally obtained for each student and participant.
- There may be several copyright holders, i.e. on music you may have a composer, performer, producer, arranger, publisher, record label, etc.
- Extracurricular activities and entertainment purposes do not fall under Fair Use.
- You cannot convert an AV work to another format except under certain conditions when the hardware is obsolete or an analog work is not available in digital format.
Multimedia Guidelines
Multimedia involves the integration of text, graphics, audio and/or video into a computer-based environment. These guidelines apply to educational, not commercial, purposes. These guidelines were developed in 1996 by a committee created to develop a "safe harbor" for multimedia use. They are widely accepted by many authors, publishers, educators, and attorneys, but are not law.
Works created by students or teachers with copyrighted material:
Students may incorporate other’s works into their multimedia creations and perform and display them for academic assignments
Faculty may incorporate others’ works into their creations to produce curriculum materials
Presentations may be used:
by studentsin class where created in portfolio for jobs, etc. personal use |
by facultyin face-to-face instruction assigned for students to view in workshops in portfolios, evaluations, etc. |
Faculty may make multimedia works accessible to distance ed students provided that only those students have access to the work
How much can I use?
There are specific limits on how much of an item may be incorporated into a presentation without first obtaining permission. Students and teachers have the same limitations.
- Films, videos, etc.–up to 3 minutes or 10%, whichever is less
- Text-10% or 1,000 words, whichever is less
- Music-10%, but not more than 30 seconds
- Illustrations, graphics, cartoons, photos-entire picture is okay, but not more than 5 from one artist or photographer or more than 15% of a collection, whichever is less
- Databases-up to 10% or 2,500 cells, whichever is less
Additional considerations in using multimedia:
- Multimedia can be placed on a network if the network is secure (login and restrictions on copying) and only for two years.
- The opening screen must state that copyrighted materials were included under Fair Use and that further use in prohibited.
- The full copyright information is included in the bibliography along with the copyright symbol, year of copyright and the copyright holder of the presentation.
Electronic Reserves
Guidelines for electronic reserves were recommended by CONFU but there was no consensus on adoption. The fair use factors should apply whatever the format of the item and should be the deciding factors in using a work. These are the guidelines recommended by CONFU:
1] Limit reserve materials to:
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single articles or chapters; several charts, graphs or illustrations; or other small parts of a work
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a small part of the material required for the course
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copies of material that a faculty member or library already possesses legally
2] Include:
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any copyright notice on the original
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appropriate citations and attributions to the source
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a Section 108(f)(1) notice
3] Limit access to students enrolled in the class and administrative staff as needed. Terminate access at the end of the class.
4] Obtain permission for materials that will be used repeatedly by the same instructor for the same class.
Items may be placed on electronic reserve provided that access is limited to students enrolled in the class only. The library will handle any copyright clearance necessary for items that you would like to place on Reserve. If you are not sure, ask!
Update: Recently ARL published Code of Best Practices in Fair Use for Academic and Research Libraries . The library considers these guidelines when providing ereserves, either streaming or electronic copies.
Distance Education
Many of the differences between face-to-face and distance education teaching were resolved by the enactment of the TEACH Act (Technology, Education, and Copyright Harmonization) in November 2002. It amends Section 110(2) of the Copyright Act. Some provisions of the TEACH include:
TEACH:
- eliminates classroom requirement
- allows material to be stored on a server for a limited amount of time
- expands categories of permitted works to include portions of audiovisual and sound recordings
- expands the rights to include exemptions necessary to the workings of the Internet
- requires implementation of safeguards (passwords)
- requires technological measures to prevent downstreaming reproductions
- requries end users to be educated in copyright
Some specific changes to 110(2) that are now allowed under TEACH:
- · Performances of nondramatic literary works( no drama or video);
- · Performances of nondramatic musical works (can't do opera);
- · Performances of any other work, including dramatic works and audiovisual works, but only in "reasonable and limited portions"; and
- · Displays of any work "in an amount comparable to that which
is typically displayed in the course of a live classroom session
Some works are specifically excluded:
- Works that are marketed "primarily for performance or display as part of mediated instructional activities transmitted via digital networks"; and
- Performances or displays given by means of copies "not lawfully made and acquired" under the U.S. Copyright Act, if the educational institution "knew or had reason to believe" that they were not lawfully made and acquired.
There are requirements of the institution and the instructor to implement the TEACH act provisions:
- Access must be limited to currently enrolled students only and will be removed at the end of a semester.
- Copyright information and policies must be in place and available at the accredited institution.
- Notice to students that materials used in connection with the course may be subject to copyright protection
- Technological controls on storage and dissemination
- Limited long-term retention of copies
This law is not intended to permit scanning and uploading of full or lengthy works, stored on a website, for students to access throughout the semester-even for private study in connection with a formal course.
The TEACH Act includes a prohibition against the conversion of materials from analog into digital formats, except under the following circumstances:
- The amount that may be converted is limited to the amount of appropriate works that may be performed or displayed, pursuant to the revised Section 110(2); and
- A digital version of the work is not "available to the institution," or a digital version is available, but it is secured behind technological protection measures that prevent its availability for performing or displaying in the distance-education program consistent with Section 110(2).
The TEACH Act is still being evaluated by copyright experts. Georgia Harper has also posed a paper on the University of Texas Copyright Crash Course website about the TEACH Act. The University of Maryland University Center for Intellectual Property has gathered together many helpful links for you.
Remember, you can still use the Fair Use factors to incorporate a work into your class if it is beyond the scope of the TEACH Act.
DMCA
The DMCA (Digital Millenium Copyright Act) was enacted in 1998 and prohibits the circumvention of protection devices. It also prohibits the manufacturing and selling of circumvention devices used to defeat copy control measures. There is no Fair Use under the DMCA for evaluation or educational purposes.
It also required the Copyright Office to make "recommendations...to facilitate the use of digital technologies in Distance Education". The Copyright Office report was issued in 1999 and its most salient points include:
- the performance of media over the Web or via educational television
- the use of dramatic works to be allowed
- the recognition that distance learning can take place in situations other than the classroom
- protections for publishers/authors from unauthorized duplication, including access by enrolled students only, password protections, and legal penalties for circumventing encryption prevention devices.
The DMCA did give libraries the right to make up to three copies of out of print items is a copy is damaged, lost or stolen. Computer programs are the only media for which libraries are allowed to make a back up copy (as long as only one copy circulates).
World Wide Web
What on the Web is copyrighted?
- Web pages (text, design, pictures, graphics, music and other audiovisual works)
- Electronic mail
- Newsgroups and discussion lists
- Internet coding
Every document or image available via the Internet, unless you know to the contrary, is protected by copyright. The form of distribution (print, airwave, or computer network) makes no difference in the copyright protection provided to a work. The fact that a copyright holder elected to share his work over the Internet does not mean that anyone can freely appropriate it for other uses.
The technology of the Internet makes copying an item very simple. It is easy to adapt, modify, resend, forward, copy or display an item. Copyright law still applies, as do the fair use exemptions.
Electronic Information
Electronic mail
- the content is owned by the author of the message. You legally cannot make copies or distribute without the author’s consent
- fair use does not apply since the work has never been published
- keep private email private unless you have permission. Don’t forward it to news groups or listservs or post it on your webpage.
Newsgroups and discussion lists
- postings are considered published works
- you could copy, for non-profit purposes, a few sentences or paragraphs
- probably okay to repost to another newsgroup unless specifically stated by the author
Web page information
- use of a Web page involves display
- private display is expected; public display, such as to a class, is not
- most Webmasters can be reached electronically with ease
- programs designed to capture Webpages for use offline involves copying and displaying and may have monetary consequences for the creator regarding hits on a Webapages.
- small amounts are probably okay, but entire pages need consent
Internet code
- HTML code is copyrighted–it is a creative work
- downloading and adapting may be a violation-ask permission
Links to a site, as long as they are to the main page, are not a violation. Remember, permission can always override any limitations imposed by law and/or guidelines.
Reasonable and limited portions
The definition of 'reasonable and limited portions' has not yet been determined by courts or by precedence. In her book Complete Copyright, Carrie Russell states:
"The use of dramatic literary works--those works with a dramatic element like an opera or play--and any other work (including audiovisual works) is limited to smaller, discrete portions of the work unless performing or displaying the entire work is essential to the course. For example, an instructor teaching the course "Films of John Ford" probably needs to show one of more John Ford films in their entirety to meet course goals. In the rare instance where it is necessary to transmit a digital copy of a film via a computer network to students in remote locations, TEACH could also apply, but only if the digital copy is necesary to meet pedagogical goals."
Each request to digitize and transmit a video will be evaluated on its own merits by the Media Librarian, Copyright Officer and the requesting faculty member. Consider whether the entire work is necessary for pedagogical goals. The Library will consider both Fair Use and the ARL Best Practices in Fair Use for Academic and Research Libraries.
Bibliography and List of Resources for Copyright Information
ALA OITP. Exceptions for Instructors. Online tool for evaluating your own situation.
-----. Fair Use Evaluator. Online tool where you enter the information from your item to help you make an informed decision.
ALA Washington Office Home Page
Code of Best Practices in Fair Use for Academic and Research Libraries, Association of Research Libraries, 2012
Code of Best Practices in Fair Use for Online Video. Center for Social Media.
Consortium for Educational Technology in University Systems (CETUS). This site has several .pdf articles on distance learning and intellectual property issues.
Copyright Act, The 1976.17 USC TITLE 17 - COPYRIGHTS.
Copyright and Fair Use. Stanford University Libraries.
Copyright Crash Course. University of Texas Libraries.
Copyright Module. Information in Cyberspace, University of Texas. Written for an Information School course at UT.
Copyright Policy. University System of Georgia.
Copyright Primer. University of Maryland University Center. An introduction to issues concerning copyright ownership and use of information.
Copyright Term and the Public Domain in the United States. Cornell University. Chart showing duration of copyright.
Cornell School of Law. This site links to the entire 1976 Copyright Act with links to relevant sections (e.g., 107, 110) to higher education.
Crews, Kenneth. Fair Use Checklist. Columbia University Libraries. Printable form for fair use evaluations.
Gasaway, Laura N. TEACH Act Comparison Chart. Charts the changes in 110(2) by the TEACH Act.
Copyright for Music Librarians. Music Librarians Association
O'Mahoney, B. (1995-1997). The Copyright Website.
Public Domain Slider, OITP, ALA Washington Office
Russell, Carrie. Complete Copyright: An Everyday Guide for Librarians. Office for Information Technology Police, ALA, 2004.
Smith, Kevin. Scholarly Communications @Duke. Duke University Libraries.