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Copyright Basics

This guide contains information about using copyrighted materials for instruction.

The ability to locate, copy, and upload digital materials to an online course makes it much easier to inadvertently infringe the copyright of the content provider.   What should you keep in mind while selecting course content and what can you use?

Some ground 'rules'

•  Assume all content, regardless of format, publication status, or absence of a copyright notice is copyrighted.

•  Proper attribution is necessary.  It does not mean you can use any amount of any work as long as attribution is given.

•  A nonprofit educational use is not, in and of itself, a fair one.

•  Remember that students hold the copyright to works they create for the course.  You may need their permission before you use their work.

•  Password protecting your course enhances any claim of fair use.  It is not, however, permission to upload anything/everything you wish to include.

What Can You Use?

• Use your own original works - as long as you are still the copyright holder or have retained a right to use the work for teaching purposes.

• Use works in the public domain.  A quick, but not complete, rule of thumb: if the work was published in the U.S. before 1923, it is in the public domain. However, beginning January 1, 2019, this benchmark -1923- will update to 1924.  And each year thereafter, the benchmark year will progress, that is, on January 1, 2020, the benchmark year will be 1925 and so forth.

•  Use federal government works [works created by a federal government employee within the scope of their employment]

•  Use works pursuant to the Performance and Display Provisions of Section 110(2):

     - Performance of reasonable and limited portions of movies and music as long as the work was not specifically created for online mediated educational use.

     - Display of text, images, photos, graphs, etc., in an amount comparable to what you would have ordinarily shown in a face-to-face classroom setting.

     - Requires access control at the class level and requires reasonable technological efforts to prevent the students from saving, downloading, printing, or otherwise having the work in accessible form after they log out of the class.

     - If you are unable to fit within Section 110(2), fair use (Section 107) is available.

•  Use works pursuant to Fair Use, Section 107.


Frequently Asked Questions

1.  May I upload pdf's of articles or book chapters to my online course?

2.  May I stream entire movies in my online course?

3.  May I embed or link to entire YouTube videos in my online course?


Q: May I upload pdfs of articles of book chapters to my online course?

A: Where did you obtain the pdf?

If you downloaded the work from the Libraries' electronic resource collection, the terms of the license for that resource will control what can be done with the content.  Most of the licenses prohibit reposting materials but you are usually able to link to the work directly from your course website.

If instead, you scanned the article from a unlicensed resource, such as a print book or print journal, you will need to do a fair use analysis.

Q: May I stream entire movies in my online course?

A: Generally speaking, no, not without a streaming license. 

Streaming an entire movie does not constitute transmitting the performance of “reasonable and limited portions.” [see Section 110(2) discussion above).  Furthermore, if the audiovisual work is an educational work created specifically for online mediated instructional activities or is a pirated copy, it is automatically ineligible for the Section 110(2) exemption.  Similarly, this scenario is unlikely to pass the fair use analysis because most of the four factors are not in favor of a fair use finding.  Although it is a nonprofit educational use, it is not particularly transformative, the nature of the work is highly creative, the amount used is the entire work, and there may or may not be an effect on the market. 

Q: May I embed or link to YouTube videos into my online class?

A: There appears to be minimal risk in this activity, as follows, -

There are several broad categories of YouTube videos used for courses. One type of YouTube video is one that may incorporate portions of commercially made movies and music.  YouTube has a very sophisticated system in place that automatically and immediately compares every second of every uploaded video with content in its rights management database and applies whatever rule the rights holder has attached to the content.  Given the ubiquitous nature of YouTube, it is reasonable to assume that commercial rights holders will have deposited copies of their works in YouTube’s rights management database with accompanying instructions on what to do should any of their material show up in a video.  Therefore, it follows that if a video is up for viewing on YouTube, the rights holder has allowed it.  Watch this explanatory TED video: Margaret Gould Stewart: How YouTube Thinks About Copyright.

The other type of YouTube video often used is the homemade video.  These are the ones you see of students sleeping in class, pets and children doing unusual things, and so forth.  It is likely that the photographer, who is automatically the copyright holder, is the same individual who uploaded the film to the YouTube site in the first place - clearly aware that millions of people will view and possibly use or link to it.  Based on that, there is likely an implied license to use it.

Before trying to determine what copyrighted works can be used - how much, under what conditions, for what purpose and for how long - take a moment to figure out whether the work you wish to use is even protected by copyright in the first place.  If it isn't, for example if the copyright has expired, then there would be no copyright concerns regarding your proposed use.

Knowing some basic copyright information is a good place to start.  Find out what the public domain is and how to check the public domain status of the work you wish to use.  There is a wealth of helpful information on the web, including copyright tutorials and very rich copyright websites.

What is a copyright?  It is a limited monopoly given to authors and creators of intellectual property to control uses of their work.

Why was copyright created? The Constitutional purpose of copyright is to "promote the progress of science and the useful arts" by giving authors and creators limited monopoly over uses of their work.  The enrichment of authors/creators is a secondary goal.
• Fundamentals: Copyright protection
        - Applies to works in every media format.
        - Arises automatically (no action required) as soon as
                →   an original work (writing, photo, song, movie, etc.)
                →   is fixed in a tangible medium of expression (written, recorded, photographed, etc.)

        - The © notice is no longer required for works created after 1989.

        - Works do not need to be published or registered in order to be fully protected by copyright.                

- However, timely registration with the U.S. Copyright Office will affect amount of damages recoverable.

  √ Your default assumption should be that most works you encounter are copyrighted whether or not there is a copyright notice.

• What is meant by giving the author a "limited monopoly?" 

The Constitution recognizes that intellectual property is fundamentally different than other types of property and that for society to advance, people need to be able to access, use, and build upon what has come before.  At the same time, creators should be given incentives and rewards for the things they create.  Copyright law tries to balance the needs of society to access and use protected works with the need to incentivize and reward creators.

Towards that end, Congress was empowered, in the Constitution, to create laws designed to "promote the progress of science and the useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."  Again, note that the progress of science and the useful arts is explicitly stated as the primary purpose of copyright.  Copyright law does not existas is often asserted, soley to enrich copyright holders. 

To accomplish this objective, copyright law begins with the set of exclusive rights given to copyright holders followed by important limitations on those exclusive rights that advance society's need to use copyrighted works. Examples of such essential uses are education, parody, news reporting, criticism, and commentary.

 These are the exclusive rights granted to a copyright holder:

  • To reproduce the work (copy)
  • To make derivative works (modify or base your work on it)
  • To distribute the work
  • To publicly perform the work
  • To publicly display the work
  • To publicly perform a sound recording by digital transmission

 Limitations, particularly those relevant to higher education and libraries, on these exclusive rights include:

How long does a copyright last?

A copyright does not last forever.  However, determining whether a copyright term has expired can be difficult due to numerous changes to copyright law over the years.  In addition to works whose copyright term has expired, the following works are in the public domain:

  • Works created by federal government employees with the scope of their employment;
  • Works published in the U.S. before 1923; However, beginning January 1, 2019, this benchmark -1923- will update to 1924.  And each year thereafter, the benchmark year will progress. For example, on January 1, 2020, the benchmark year will be 1925 and so on.
  • Works that failed to comply with required formalities, when required (e.g., no © notice before 1989).

The term of copyright:

Fair Use in the Day in the Life of a College Student

Fair Use Explained: Two Minute Video by Brandon Butler, UVA

Perhaps the most critical limitation on the copyright holder's exclusive rights is the the fair use exemption, codified in 17. U.S.C. §107.  Fair use allows limited uses of portions (or sometimes all) of a copyrighted work without the need for prior permission.  Favored fair uses include nonprofit educational, transformative uses or criticism, commentary or parody.  Determining whether a particular use is fair requires weighing the four factors set forth in the statute: 

  • Purpose and character of the use;
  • Nature of the copyrighted work;
  • Amount and substantiality of the amount used;
  • Effect or potential effect on the market or potential market for the work.

There are no clear-cut rules that state when a particular use might be a 'fair use.'  Instead, the four fair use factors must be evaluated in the context of the specific facts of the proposed use.   Because of this, a reasonable, good faith fair use analysis is necessarily fact-driven. Reasonable and knowledgeable people can, and often do, disagree about whether a particular use at a particular time is a fair one.   The fair use provision, while uncomfortable for some who wish for more certainty, is a deliberate choice by Congress and the courts to allow the doctrine to have flexibility and achieve a responsible balance between needs of creators and those of society.  

Fair use, therefore, provides the necessary play in the joints without which society would become gridlocked in trying obtain permissions for any use of any amount of a copyrighted work.  Fair use will always be an educated opinion - the adage "when in doubt, get permission" is entirely incompatible with the good faith exercise of the intent and purpose of the fair use provision of copyright law.  To assume that one "answer" exists for the infinite variety of situations would destroy the very flexibility fair use is intended to address.

Given that faculty and students are frequent users of third party copyrighted materials in their courses, the responsible exercise of fair use is particularly crucial to each and every course taught.  What could be more mission critical?

As you read through this short overview of fair use, or some other resource on the web, it is easy to become overwhelmed, but keep in mind the following: 
•  Not all four factors need to favor fair use (usually at least half)
•  Reasonable minds can differ over what is a fair use
•  All that is expected of you, as an employee of a nonprofit educational institution doing your job, is that you take the time to do a reasonable/reasoned consideration of each factor in the context of your situation and make a good-faith, objective decision.

The Four Fair Use Factors

1.  The PURPOSE AND CHARACTER of the use, including whether the use is of a commercal nature or is for nonprofit educational purposes
•  The purpose of the use:  University nonprofit educational uses are favored fair uses. However, all factors must still be considered; educational use alone does not automatically constitute a fair use.
•  The character of the use is more likely to weigh in favor of fair use if the proposed use is a transformative use as opposed to 'slavish' copying.  Recent court decisions have emphasized that if a use is substantially transformative, the other fair use factors are less significant.  Generally speaking, the test for a transformative use is "does the use merely supercede the objects of the original creation or instead add something new, with a further purpose of different character, altering the first with new expression, meaning, or message." Blanch v. Koons, 467 F.3d 244 (2d Circ. 2006)

2.  The NATURE of the copyrighted work
•  This factor generally weighs in favor of a finding of fair use if the work being used is primarily factual (scholarly, technical, scientific) as opposed to works that consist of lots of creative expression, such as plays, poems, fictional works, photographs, paintings and so forth.

3.  The AMOUNT AND SUBSTANTIALITY of the portion used in relation to the copyrighted work as a whole
•  The amount factor is a sliding scale - the larger the portion of the work you wish to use, the less likely it will be considered to be a fair use.  For example, using 50% or half of an entire work is less likely to be considered a fair use than using 10%.  On the other hand, under the right set of facts, use of 100% of the work might be found to be fair as in the use of an entire image or graphic.   
•  Whether the proposed amount is a substantial amount looks at whether the proposed portion is the "heart of the matter."  But just because a particular portion is selected for use does not necessarily mean that portion is the "heart.'  That is, it has been argued in some copyright infringement lawsuits that the defendant would not have chosen the portion of the work to use if that portion wasn't the most important or best part of the entire work, i.e., the 'heart.'  In that instance, the court rejected that reasoning pointing out that there are many reasons why a particular portion is chosen for inclusion, not necessarily because it is the 'heart.'

4.  The EFFECT of the use upon the potential market for or value of the copyrighted work
•   If the proposed use became widespread and would negatively impact the market for or value of the copyrighted work, the fourth factor likely weighs against a finding of fair use.  Note that there are two markets that are arguably relevant to this inquiry: the market for the work itself and the permissions market.  Which is the relevant market?   Should the permissions market be considered in the fourth factor analysis?  

Why is a fair use analysis being done in the first place?  It is being done to determine whether the proposed use is a fair one and, therefore, does not require permission and payment of permission fees. In other words, it is being done to decide whether permission and, therefore, permission fees are even due, keeping in mind that the copyright holder cannot lose what isn't hers to begin with.  

Note that the permission fee market will always be affected if permission fees are not paid but you can't lose what isn't yours.  Affecting a permissions market is not affecting the market for the work.  In other words, just because a permissions market exists should not determine whether a fee is necessary in the first place.    

Use the Fair Use Considerations Guide for assistance in your fair use deliberations and as documentation of your good faith effort.

For an excellent discussion of fair use in the academic setting, see Peter Jaszi's Fair Use Today essay.

The fair use doctrine, as codified in 17 U.S.C. 107, sets forth four factors to be considered
when evaluating whether a proposed use of a copyrighted work is a fair use and, therefore, does not require permission from the copyright holder. The legislative history of this section and court
decisions have provided further insight into the application of these factors to particular situations.

•  Cornell's Fair Use Checklist

•  Fair Use Checklist Columbia University Libraries Copyright Advisory Office

•  Thinking Through Fair Use University of Minnesota Libraries

•  LSU Libraries Fair Use Considerations Worksheet

The fair use doctrine, as codified in 17 U.S.C. 107, sets forth four factors to be considered
when evaluating whether a proposed use of a copyrighted work is a fair use and, therefore, does not require permission from the copyright holder. The legislative history of this section and court
decisions have provided further insight into the application of these factors to particular situations.

•  Cornell's Fair Use Checklist

•  Fair Use Checklist Columbia University Libraries Copyright Advisory Office

•  Thinking Through Fair Use University of Minnesota Libraries

•  LSU Libraries Fair Use Considerations Worksheet

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