Guide to Copyright and Fair Use

This guide addresses copyright issues pertaining to the use of print materials, especially photocopies, in the classroom and on library reserve. Copyright issues involving Interlibrary Loan, music, off air videotaping, use of audiovisual works, use of educational multimedia, and fair use guidelines are described.

 
The copyright protections that we normally associate with print also govern the use of audio, video, images, and text on the Internet and the World Wide Web (WWW). The intuitive interface of the WWW makes it easy for the computer user to copy and use images, text, video and other graphics that are likely to be protected by copyright. A document may be copyrighted even if it does not explicitly state that it is copyrighted. As a result, it is a good idea to assume materials such as documents, images, or video clips are copyrighted. Educators can avoid copyright violations and legally use copyrighted materials if they understand and comply with the fair use guidelines. If you believe, after you review this document, that your proposed use does not comply with fair use guidelines, you always have the option to ask for permission from the copyright holder.
 
This document's purpose is to help faculty, students and staff make informed decisions before using materials in the classroom, for course reserves, or the Internet or World Wide Web. This document provides:

  • An introduction to copyright.
  • An introduction to fair use.
  • Fair Use Guidelines for Educational Multimedia, a review of guidelines designed to help faculty, staff, or students comply with fair use guidelines when using images, computer programs, or other materials obtained via the Internet or WWW
  • A sample letter to use to request permission to use copyrighted materials.

 
1. Introduction to Copyright

2. Introduction to Fair Use

3. The Educational Multimedia Guidelines

4. Sample letter (Word .doc) to request permission to use copyrighted materials
5. Library Reserve Policy
6. Additional Sources of Information
 
An Introduction to Copyright
What is Copyright?
Copyright is a form of protection provided by the laws of the United States (Title 17, U.S. Code) to creators of "original works of authorship" including literary, dramatic, musical, artistic, and other published and unpublished works, when "fixed in a tangible form of expression." The law gives authors, creators, and copyright holders exclusive rights to their creations which are: reproduction, distribution, adaptation and performance and display. These rights, however, are limited in scope. Sections 107-118 of the Copyright Act establish limitations that in some cases are specified as exemptions from liability. One major limitation is the doctrine of "fair-use" which is given statutory basis in Section 107 of the Act. Protection, given to individual, group or corporate authors and to "works for hire," lasts for the term of the author's life plus 70 years (PL 105-298).
 
A Public Domain work is a creative work that is not protected by copyright and may be freely used by everyone. Examples of works in the public domain are works published before 1923 and U.S. Government documents. For more complete information on when works pass into the public domain see www.unc.edu/~unclng/public-d.htm
 
The intent of copyright is to advance the progress of knowledge by giving an author of a work an economic incentive to create new works.
 
Remember that “out-of-print” does not mean out of copyright.
 
What Can be Copyrighted?
Tangible, original expression. This means, for example, that a verbal presentation that is not recorded cannot be copyrighted. However, anything that is tangible can be copyrighted. There are three fundamental requirements for something to be copyrighted:

  • Fixation: The item must be fixed in some way. The fixation may be just about anything. For example, a piece of paper, a computer disk, a audiotape, or a videotape are all legitimate forms of fixation.
  • Originality: The work must be original. Originality includes a novel or a student's e-mail message to a professor. Both are considered examples of original expression. It is not necessary for the 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 also cannot be copyrighted. However, slogans, for example, 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 responsibility.
  • Works for which copyright wasn't obtained or copyright has expired (extremely rare!).

 
What Does Copyright Protect?
Copyright provides authors fairly substantial control over their 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.

 
An Introduction to Fair Use
What is Fair Use?
Fair Use (Section 107 of the Copyright Act of 1976) balances the rights of copyright holders with the needs of scholars to promote teaching, research, and the free exchange of ideas. Section 107 of the Copyright act states that the fair-use of a copyrighted work, including use by reproduction in copies, is not an infringement of copyright for purposes such as criticism, comment, teaching (including multiple copies for classroom use), scholarship, or research. Fair use defines particular circumstances in which it is permissible to use copyrighted material, free from permissions and royalties. In determining fair-use, all of the following four factors should be considered:
 

  1. The purpose and character of the use. Use of copyrighted material in nonprofit, educational teaching and research is generally considered fair use, while commercial use of the same material would not be covered under the fair use definitions.
  2. The nature of the copyrighted work. Factual works such as historical data, scientific information, etc. are more often covered under fair use than creative works which are more likely to require permission for use from the copyright holder.
    1. Is the copyrighted work a published or unpublished works? Unpublished works are less likely to be considered fair use.
    2. Is the copyrighted work out of print? If it is, it is more likely to be considered fair use.
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole. In general, the more material used the greater the balance away from fair use.
    1. The more you use, the less likely it will be considered fair use.
    2. Does the amount you use exceed a reasonable expectation? If it approaches 50 percent of the entire work, it is likely to be considered an unfair use of the copyrighted work.
  4. The effect of the use upon the potential market for or value of the copyrighted work. Use of copyrighted material that substitutes for the purchase of a book, reprint, or subscription would not be considered fair use.
    1. The more the new work differs from the original, the less likely it will be considered an infringement.
    2. Does the work appeal to the same audience as the original? If the answer is yes, it will likely be considered an infringement.
    3. Does the new work contain anything original? If it does, it is more likely the use of the copyrighted material will be seen as fair use.

 
What are the Rules for Fair Use in Academia?
The copyright law allows anyone to photocopy copyrighted works without securing permission from the copyright owner when the photocopying amounts to a "fair use" of the material, and applies to all forms of photocopying, whether undertaken at a commercial copying center, at the College’s Copy Center or at self service machines.
 
What Can be Copied?
Single Copy for Classroom Use
Faculty may make single copies for scholarly research or for use in teaching or class preparation. In general copies should be restricted to:

  • One chapter from a book.
  • One article from a journal issue or newspaper.
  • Multiple excerpts from a single book or journal issue will be accepted only if the total length of the submission is 10.0% or less of the total length of the book or journal issue.
  • A short story, short essay, or short poem.
  • A chart, diagram, drawing, graph, cartoon, or picture.

 
Multiple Copies for Classroom Use
Fair use allows multiple copies (not to exceed more than one copy per student in a course) to be made by or for a faculty member for classroom use or discussion, provided that the copying meets the tests of brevity, spontaneity, and cumulative effect. In addition, all copies distributed to students must have a complete citation and notice of copyright on the first page.
 
Brevity
Brevity refers to how much of the work you can copy.

  • Poetry:
    • A complete poem if less than 250 words and if printed on not more than two pages
    • An excerpt of not more than 250 words.
  • Prose:
    • A complete article, story or essay of less than 2,500 words
    • An excerpt from any prose work up to 1,000 words or 10% of the work, whichever is less
  • Illustrations:
    • A chart, graph, diagram, drawing, cartoon, or picture contained in a book or periodical issue.
    • Special Works: Certain works in poetry or prose or in "poetic prose," which may combine language with illustrations and which fall short of 2,500 words, may not be reproduced in their entirety. However, an excerpt comprising not more than two of the published pages of such a work, and containing not more than 10% of the words found in the text, may be reproduced.

 
Spontaneity
Spontaneity refers to the timing of the decision to make copies.

  • The copying is at the instance and inspiration of the individual instructor.
  • 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.

 
According to the rule, the need to copy should occur closely in time to the need to use the copies. 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 considered 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.
 
Cumulative Effect
Cumulative Effect refers to the big picture of how many items you are copying per course and how many different sources you’re copying from.
 

  • The copying of the material is for only one course, with no more than one copy per student in the course.
  • No more than one short poem, article, story, essay or two excerpts may be copied from the same author
  • No more than three excerpt from the same collective work or periodical volume during a term. Note: These limitations do not apply to current news periodicals, newspapers, or current news sections of other periodicals
  • No more than nine items per course may be distributed

 
What Should Be Avoided?

  1. Making multiple copies of different works that could substitute for the purchase of books, publisher's reprints, or periodicals.
  2. Copying the same works from semester to semester.
  3. Copying the same material for several different courses at the same or different institutions.
  4. Copying more than nine separate times in a single semester.
  5. Copying may not be used to create, replace, or substitute for anthologies, compilations, or collective works.
  6. Copying may not be of or from works intended to be consumable in the course of study or teaching such as workbooks, exercises, standardized tests and answer sheets, etc.
  7. Copying for the purpose of performance is prohibited, except in the emergency situation described above.
  8. Copying as a way of avoiding purchase is forbidden, given the reasonable availability of the material.
  9. No copying is permitted unless the copyright notice, which appears on the printed music, is included.
  10. 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.
 
NOTE: It is recommended that teachers, faculty, or instructors consider both the special guidelines for instructor and take into account the four factors that are used to evaluate fair use when they are deciding what and how much of a copyrighted work to use.
 
Course packs
Course packs which compile readings into an anthology are recommended when more than nine items need to be distributed to students during a semester or the guidelines for permission requirements listed above are indicated. All copyrighted materials reproduced in course packs require copyright permission and/or payment of fees. Faculty are expected to obtain these permissions and pay any necessary fees themselves.
 
Library Reserves
Whenever possible, the Grace Hauenstein Library will place the original source (book or journal) on reserve for a faculty member, rather than a copy of that work. Use of personal copies on library reserve must conform to the fair use classroom guidelines or have copyright permission. At the request of a faculty member, the library will place on reserve a copy of excerpts from copyrighted works in accordance with fair use guidelines. These copies may be placed on reserve for one academic semester and may not be used for additional semesters without permission from the copyright holder.
 
Posting materials electronically on your CourseConnect page
Faculty who are posting articles, readings, etc. from copyrighted material on CourseConnect should consider the following recommendations:

  1. Use materials in the public domain freely
  2. Use materials freely if you own the copyright (e.g., exams, syllabi, notes)
  3. Whenever possible provide links to full text articles in the Library's databases or to other web sites instead of downloading them onto your own site.
  4. If you do post copyrighted materials without securing permission, keep these online for one semester only and restrict access to this material to the students in your class. A bibliographic citation and notice of copyright should appear on the first page of each item.
  5. When in doubt, seek permission.

 
Interlibrary Loan
All interlibrary loan requests, originating at the Grace Hauenstein Library's Interlibrary Loan Department, will be processed in compliance with copyright law. The Library will be responsible for all records required by the Copyright Law and the guidelines of the National Commission on New Technological Uses of Copyrighted Works (CONTU Guidelines). These guidelines set a maximum number of five photocopied articles which may be requested in a calendar year from the most recent five years of a periodical that the CSU Library does not subscribe to. ILL request forms are available online and at the Library's Reference Desk.
 
Audiovisual materials
Videotapes, DVDs: Classroom Use
Borrowing from the library a videotape or DVD does not give the person in possession of the video or DVD the right to show that work to others. The copyright owner determines the circumstances in which the work may be performed. However, use of this type of media in a nonprofit educational institution is allowed, without obtaining permission, under certain conditions as specified in Section 110 (1) of the Copyright Act of 1976 and in House Report (94-1476).
 

  1. They (videotapes or DVD's) must be shown as part of the instructional program
  2. They must be shown by students, instructors, or guest lecturers
  3. They must be shown either in a classroom or other school location devoted to instruction
  4. They must be shown either in a face-to-face setting or where students and teachers are in the same building or general location
  5. They must be shown only to students and educators
  6. They must be shown using a legitimate (not illegally reproduced) copy with the copyright notice included

 
There must be a direct relationship between the videotape or DVD and the course. Videos and DVDs, even in a face-to-face classroom setting, may not be used for entertainment or recreation, whatever the work's intellectual content.
 
Videotapes, DVDs: Use Outside the Classroom
Videos and DVDs, owned by the College, may be viewed by students, faculty, and staff at workstations or in small group rooms in the Library. Students, staff and faculty members may also checkout videos and DVDs for viewing at home. Videos or DVDs which are to be shown to a larger audience as part of a special program, lecture series, etc. require permission from the copyright owner for public performance rights. Copying a videotape or DVD without the copyright owner's permission is illegal.
 
Off-Air Videotape Recording for Educational Purposes
The following "Guidelines for Off-the-Air Recording of Broadcast Programming for Educational Purposes" were developed by the Kastenmeier House Committee in 1979 and ratified by a House subcommittee in 1981. Using the fair use doctrine, these guidelines provide for classroom use of most off-air videotaped recordings.
 

  1. Videotaped recordings may be kept for no more than 45 calendar days after the recording date, at which time the tapes must be erased.
  2. Video taped recordings may be shown to students only within the first 10 school days of the 45-day retention period.
  3. Off-air recordings must be made only at the request of an individual instructor for instructional purposes, not by staff in anticipation of later requests.
  4. The recordings are to be shown to students no more than two times during the 10-day period, and the second time only for necessary instructional reinforcement.
  5. The taped recordings may be viewed after the 10-day period only by instructors for evaluation purposes, to determine whether to include the broadcast program in the curriculum in the future.
  6. If several instructors request videotaping of the same program, duplicate copies are permitted to meet the need; all copies are subject to the same restrictions as the original recording.
  7. Off-air recordings may not be physically or electronically altered or combined with others to form anthologies, but they need not necessarily be used or shown in their entirety.
  8. All copies of off-air recordings must include the copyright notice on the broadcast program as recorded.
  9. These guidelines apply only to nonprofit educational institutions, which are further expected to establish appropriate control procedures to maintain the integrity of these guidelines.

 
Copyright and Electronic Publishing

  • The same copyright protections exist for the author of a work regardless of whether the work is in a database, CD-ROM, bulletin board, or on the Internet.
  • If you make a copy from an electronic source, such as the Internet or WWW, for your personal use, it is likely to be seen as fair use. However, if you make a copy and put it on your personal WWW site, it less likely to be considered fair use.
  • The Internet IS NOT the public domain. There are both uncopyrighted and copyrighted materials available. Assume a work is copyrighted.

 
Tips for the Internet

  • Always credit the source of your information
  • Find out if the author of a work (e.g., video, audio, graphic, icon) provides information on how to use his or her work. If explicit guidelines exist, follow them.
  • Whenever feasible, ask the owner of the copyright for permission. Keep a copy of your request for permission and the permission received.

 
When is Permission 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.
  • material which is used for more than one semester
  • material which exceeds the brevity or cumulative effect tests
  • use which substitutes for the purchase of a book, reprint, or subscription
  • material which comes from consumable sources (workbooks, exercises, etc.)

 
How Do I Get Permission?
You must obtain permission yourself. Download (Word .doc) a sample letter you may use as a guide.
 
Educational Multimedia Fair Use Guidelines
The Fair Use Guidelines for Educational Multimedia apply to the use, without permission, of portions of lawfully acquired copyrighted works in educational multimedia projects which were created by educators or students as part of a systematic learning activity by nonprofit educational institutions.
 
Definitions

  • The guidelines are intended to apply to educational multimedia projects that incorporate educators' original material, such as course notes or commentary, together with various copyrighted media formats, including motion media, music, text material, and graphics illustrations.
  • The guidelines are voluntary and do not have the force of law.
  • If you follow the guidelines, it is highly likely that your use is fair use.
  • The guidelines are safe minimums.
  • The newly created work that includes copyrighted material may only be used for learning activities. Other uses, such as selling the work commercially, require permission.

 
Student Guidelines

  • Students may incorporate portions of lawfully acquired copyrighted works when producing their own educational multimedia projects for a specific course.
  • Students may perform and display their own projects and use them in their portfolio or use the project for job interviews or as supporting materials for application to graduate schools.

 
Faculty Guidelines

  • Faculty may include portions of copyrighted works when producing their own multimedia project for their teaching in support of curriculum-based instructional activities at educational institutions.  
  • Faculty may use their projects for:
    • assignments for student self-study
    • for remote instruction provided the network is secure and is designed to prevent unlawful copying
    • for conferences, presentations, or workshops
    • for their professional portfolio

Faculty may perform or display their own educational multimedia projects in presentations to their peers, for example, at workshops and conferences. Faculty may also retain their multimedia projects in their personal portfolios for later personal uses such as tenure review or job interviews.
 
Time Limitations
Faculty may use their educational multimedia projects, created for teaching courses, for a period of up to two years after the first instructional use with a class. Use beyond that time, even for educational purposes, requires permission from each copyrighted portion incorporated in the production.
 
Portion Limitations
Portion limitations mean the amount of a copyrighted work that can reasonably be used in educational multimedia projects under these guidelines without permission.

  • Motion media:
    • Up to 10 percent of the total or three minutes, whichever is less.
  • Text material:
    • Up to 10 percent of the total or 1,000 words, whichever is less.
    • An entire poem of less than 250 words may be used, but no more than three poems by one poet or five poems by different authors in an anthology. For poems exceeding 250 words, 250 words should be used but no more than three excerpts from one poet or five excerpts from different poets in the same work
  • Music, lyrics, and music video:
    • Up to 10 percent of the work but no more than 30 seconds of the music or lyrics from an individual musical work.
  • Illustrations or photographs:
    • No more than five images from one artist or photographer.
    • No more than 10% or 15 images, whichever is less, from a collection
  • Numerical data sets:
    • Up to 10 percent or 2,500 fields or cell entries, whichever is less, from a copyrighted database or data table.
  • Copying of a multimedia project:
    • No more than two copies may be made of a project.

 
Copying and Distribution Limitations
Only a limited number of copies, including the original, may be made of an educator's multimedia project. There may be no more than two "Use" copies, one of which may be placed on reserve. An additional copy made be made for preservation purposes but may only be used or copied to replace a "Use" copy that has been lost, stolen, or damaged. In the case of a jointly created educational multimedia project, each principal creator may retain one copy.
 
Downloading Material from the Internet
Faculty and students are advised to exercise caution in using digital material downloaded from the Internet in producing their own educational multimedia 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 payments. In addition, some copyrighted works may have been posted to the Internet without authorization of the copyright holder.
 
Attribution and Acknowledgement
Faculty and students are reminded to credit the sources and display the copyright notice and ownership information, if this is shown in the original source, for all works incorporated as part of an educational multimedia project. Crediting the source should include full bibliographic description including author, title, publisher, and place and date of publication. The copyright ownership information includes the C, year for first publication, and name of the copyright holder.
 
Notice of Use Restrictions
Faculty and students are advised that they must include on the opening screen of their multimedia project and any accompanying print material a notice stating that certain copyrighted materials are included, as allowed under the educational multimedia fair use guidelines, and are restricted from further use.
 
Library Reserve Policy
Materials which may be placed on Reserve without obtaining copyright permission:

  • Instructors’ personal exams/quizzes
  • Instructors’ personal lecture notes/homework solutions
  • Public domain information
  • Most government publications

 
Portions of copyrighted materials that may be photocopied or scanned and placed on Reserve without permission from the copyright owner or publisher for one semester (NOT consecutive semesters):

  • A chapter from a book
  • An article from a periodical or newspaper
  • A short story, essay, or short poem
  • A chart, graph, diagram, drawing, cartoon or picture from a book, periodical or newspaper

 
Material for which copyright permission is needed:

  • A copy of an entire book
  • Multiple copies of a chapter of a book
  • Multiple copies of an article from a periodical
  • Course packets (readings from various sources)
  • Copies of non-print materials (sound recordings, videotapes, videodiscs, films, slides, photographs and software)
  • Unpublished complete draft of an author’s work
  • Students’ papers

 
Copyrighted materials that may NOT be photocopied or scanned and placed on Reserve:

  • Copies of p ages from works intended to be “consumable” in course of study or teaching. These include workbooks, exercises, standardized tests, test booklets and answer sheets (originals are okay)
  • A copy of an entire book, whether in print or out-of-print

 
Length of time photocopied/scanned materials may be on reserve:

  • Photocopies of copyrighted materials may be placed on reserve one semester only without permission. If the instructor wishes to keep these materials on reserve for more than one consecutive semester, permission from the copyright holder must be requested. Once the request has been made the material can remain on reserve pursuant to the copyright holder’s response. If permission is not granted than the material must be taken off reserve.

 
Number of photocopies of each item that can be placed on Reserve:

  • One (1)

 
Additional Sources of Information
Government and Commercial Sites

 
University Websites

 
This document was assembled from information presented on the following websites:

  • Wellesley College Copyright Policy
  • University of Maryland University College, Information and Library Services
  • Charleston Southern University, L. Mendel Rivers Library “Guide to Copyright and Fair Use”

Resources