Copyright and Fair Use

By Susan Gallanis in Library 0 Comment

What is Copyright?

(Source: https://www.copyright.gov/what-is-copyright/)

Copyright is a type of intellectual property that protects original works of authorship as soon as an author fixes the work in a tangible form of expression. In copyright law, there are a lot of different types of works, including paintings, photographs, illustrations, musical compositions, sound recordings, computer programs, books, poems, blog posts, movies, architectural works, plays, and so much more! Learn more from the U.S. Copyright Office.

Everyone is a copyright owner. Once you create an original work and “fix it”, like taking a photograph, writing a poem or blog, or recording a new song, you are the author and the owner.

Companies, organizations, and other people besides the work’s creator can also be copyright owners. Copyright law allows ownership through “works made for hire,” which establishes that works created by an employee within the scope of employment are owned by the employer. The work made for hire doctrine also applies to certain independent contractor relationships, for certain types of commissioned works.

Copyright ownership can also come from contracts like assignments or from other types of transfers like wills and bequests.

About Fair Use

Fair Use guidelines apply to digital course materials uploaded to the learning management system, regardless if the course is taught face-to-face or online.

(Source: https://www.copyright.gov/fair-use/)

Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use. On determining whether the use made of the work in any particular case is a fair use, Section 107 calls for consideration of the following four factors in evaluating a question of fair use:

  1. Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes: Courts look at how the party claiming fair use is using the copyrighted work, and are more likely to find that nonprofit educational and noncommercial uses are fair. This does not mean, however, that all nonprofit education and noncommercial uses are fair and all commercial uses are not fair; instead, courts will balance the purpose and character of the use against the other factors below. Additionally, “transformative” uses are more likely to be considered fair. Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work.
  2. Nature of the copyrighted work: This factor analyzes the degree to which the work that was used relates to copyright’s purpose of encouraging creative expression. Thus, using a more creative or imaginative work (such as a novel, movie, or song) is less likely to support a claim of a fair use than using a factual work (such as a technical article or news item). In addition, use of an unpublished work is less likely to be considered fair.
  3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole: Under this factor, courts look at both the quantity and quality of the copyrighted material that was used. If the use includes a large portion of the copyrighted work, fair use is less likely to be found; if the use employs only a small amount of copyrighted material, fair use is more likely. That said, some courts have found use of an entire work to be fair under certain circumstances. And in other contexts, using even a small amount of a copyrighted work was determined not to be fair because the selection was an important part—or the “heart”—of the work.
  4. Effect of the use upon the potential market for or value of the copyrighted work: Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work. In assessing this factor, courts consider whether the use is hurting the current market for the original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it were to become widespread.

In addition to the above, other factors may also be considered by a court in weighing a fair use question, depending upon the circumstances. Courts evaluate fair use claims on a case-by-case basis, and the outcome of any given case depends on a fact-specific inquiry. This means that there is no formula to ensure that a predetermined percentage or amount of a work—or specific number of words, lines, pages, copies—may be used without permission.

Using a fair use checklist can be useful in determining how to balance each of the fair use factors in an individual situation.

Guidance from the U.S. Copyright Office

The U.S. Copyright office cannot give legal advice or offer opinions on what is permitted or prohibited. However, the information below is from a circular they published with basic information on some of the most important legislative provisions and other documents dealing with reproduction by librarians and educators.

Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with Respect to Books and Periodicals

The purpose of the following guidelines is to state the minimum and not the maximum standards of educational fair use under Section 107 of H.R. 2223. The parties agree that the conditions determining the extent of permissible copying for educational purposes may change in the future; that certain types of copying permitted under these guidelines may not be permissible in the future; and conversely that in the future other types of copying not permitted under these guidelines may be permissible under revised guidelines. Moreover, the following statement of guidelines is not intended to limit the types of copying permitted under the standards of fair use under judicial decision and which are stated in Section 107 of the Copyright Revision Bill. There may be instances in which copying which does not fall within the guidelines stated below may nonetheless be permitted under the criteria of fair use.

A teacher may make a single copy for his or her scholarly research for use in teaching or preparation to teach a class of the following:

  1. A chapter from a book;
  2. An article from a periodical or newspaper;
  3. A short story, short essay, or short poem, whether or not from a collected work;
  4. A chart, graph, diagram, drawing, cartoons, or picture from a book, periodical, or newspaper.

A teacher may make multiple copies for classroom use only, not to exceed one copy per student in a given class, provided that the copying meets the tests of brevity and spontaneity as defined below:

Brevity:

  1. A complete poem if less than 250 words and if printed on not more than two pages or, from a longer poem, an excerpt of not more than 250 words;
  2. A complete article, sort of an essay of less than 2,500 words;
  3. An excerpt from any prose work of not more than 1,000 words or 10% of the work, whichever is less, but at least 500 words;
  4. One chart, graph, diagram, drawing, cartoon, or picture per book or periodical.

Spontaneity:

  1. The copying is at the instance and inspiration of the individual teacher, and
  2. 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. (Example: reading an article in the newspaper in the morning that perfectly matches what you will be discussing in class that afternoon)

A teacher may not:

  1. Copy more than one short poem, article, story, essay, or two excerpts from the same author, nor more than three from the same collective work or periodical volume during one class term;
  2. Make multiple copies of works more than nine times for one course during one class semester;
  3. Use copied materials to create or replace or substitute for anthologies, compilations, or collective works;
  4. Substitute copy for the purchase of books, publishers’ reprints or periodicals;
  5. Continue to copy previously copied materials from term to term;
  6. Charge the student above the actual cost of photocopying.
  7. Copy from works intended to be “consumable” in the course of study such as workbooks, test booklets, or answer sheets.

More About Copyright: Display or Perform Work

In-class Teaching Only

According to section 110(1) of copyright law, a teacher may DISPLAY or PERFORM (note: this exception does not apply to reproduction), any work (excluding unlawfully attained works and works designed for instruction) in any amount during face-to-face classroom instruction.

Online Teaching Only

According to section 110(2) of copyright law, a teacher may DISPLAY or PERFORM (note: this exception does not apply to reproduction), any nondramatic literary and musical works (excluding unlawfully attained works and works designed for instruction) during online instruction. Performance or display of any other work is permitted in reasonable portions comparable to what is typically displayed in a live classroom setting. All other requirements of the TEACH act must be met as well for this exception to be permitted. A checklist of TEACH act requirements are found at this link: TEACHAct-checklist

The previous statement of guidelines is not intended to limit the types of copying permitted under fair use. There may be instances in which copying does not fall within these guidelines, but may nonetheless be permitted under the criteria of fair use. Fair use decisions are made on a case-by-case basis and involve weighing each of the four fair use factors.

CUWAA Library Resources

It is recommended that all courses use stable library links to course materials rather than pdfs because:

  1. If the University loses access to a particular article, we would potentially be in violation of copyright law if we continue to allow access to the particular article in the form of a pdf.
  2. The number of link downloads are recorded by the library and ensure that we retain subscriptions to used databases and journals.
  3. It is in the best interest of scholarship and academia as a whole to ensure accurate download counts for article authors.

CUW Library link to copyright resources. CUAA Library link to copyright resources.

Resources from the World Wide Web

Copyright still applies to content obtained from the world wide web. CUWAA best practice is to use a link to the material (for example a PDF) rather then uploading the PDF to the course in the learning management system. This is because many websites allow for only a single user to download materials for personal use and does not apply to posting to the learning management system for multiple students to access. The areas below can help determine appropriate use:

Enhance your understanding of copyright and fair use with these no- or low-cost courses:

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