Copyright and Fair Use
The purpose of this website is to help faculty, students and staff make informed decisions before using materials in the classroom, for course reserves or online. The information presented here must not be relied on as a substitute for obtaining legal advice from a licensed attorney. Legal advice must be provided in the course of an attorney-client relationship specifically with reference to all the facts of the particular situation under consideration.
Informs and guides your decisions regarding the use of copyrighted materials.
“Congress shall have the power… 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.”
- US Constitution, Article I, Section 8 "
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." - Stephen Fishman, Esq. The Copyright Handbook, 1996.
“Copyright is a form of protection provided by the laws of the United States (title 17, U.S. Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works.
Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:
- To reproduce the work in copies or phono records;
- To prepare derivative works based upon the work;
- To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
- To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;
- To display the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and
- In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.
The purpose of copyright law is to provide economic incentive for authors to create new works. Exercising any of the copyright owners exclusive rights without permission may be copyright infringement. Rather than focus on the restrictions of copyright law, we need to learn how to use copyrighted works safely. This is where Fair Use comes in to play.
- Life of the author plus 70 years.
- For corporate authors, 95 years from publication or 120 years from creation whichever is shorter.
You may question whether or not the material you want to use is still under copyright protection, or in the public domain. Review these public domain charts for published and unpublished copyright expiration dates. In general:
- Pre-1924 publications—in the public domain
- Pre-1978 publications without a copyright notice—in the public domain
- Published between 1924 and 1963 with a copyright notice, but registration not renewed—in the public domain.
When looking for works in the public domain to add to your course syllabus or Blackboard, try the following:
Perform an “advanced book search” and limit your search to “full view only”.
The first producer of free electronic books.
The Library has a number of online full text ebooks, e-journals and digital videos that can be linked on syllabi or in Blackboard. Visit the Library’s “Databases” webpage for a complete list of resources.
Copyright law covers works of authorship and expression that are fixed in any tangible medium of expression. Since 1978, in the US Copyright is automatic… that is, you don’t need to register something or even put a notice on it to signify that it is covered by copyright. Copyrightable works include the following; see list below. View FAQ What Does Copyright Protect?
- literary works
- musical works, including any accompanying words
- dramatic works, including any accompanying music
- pantomimes and choreographic works
- pictorial, graphic, and sculptural works
- motion pictures and other audiovisual works
- sound recordings
- architectural works
What is Not Protected by Copyright?
"To be protected by copyright, a work must contain a certain minimum amount of original literary, pictorial, or musical expression" (Circular 32). Several categories of material are generally not eligible for federal copyright protection. These include among others:
- Works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded)
- Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents
- Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration
- Works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources)
- 17 USC § 105 "Copyright protection under this title is not available for any work of the United States Government..." (17 USC § 105). U.S. government works created by federal government employees "as part of that person’s official duties", (17 USC § 101), are not subject to copyright in the United States, but may be subject to copyright in other countries.
Exercised properly, Fair Use allows educators the right to make reasonable and limited use of copyrighted works in the classroom. See USC 17 §107. To determine whether a use is fair, or infringing, one must walk through the Four-Factor Test and the Guidelines for Classroom Copying.
A common misunderstanding is that Fair Use applies in the non-profit educational setting all the time. This is not true. Additionally, the acceptance of “one time educational use” as being fair use is not a safe practice. One must walk though the Four-Factor Test to determine if a use is fair.
It’s possible that activities which would be considered copyright infringement for the general public might be fair use in the traditional non-profit face-to-face classroom. However, in today’s information rich electronic environment, fewer and fewer educational uses are considered fair. Think of it this way, putting a hardcopy journal article on library reserve (stamped: Do Not Reproduce) for a class, makes that one copy available for only those persons in the class, or for those people who use the library—this dissemination is very limited.
Now think of what can happen when an electronic article is posted to a course management system and students are allowed to download it. If securities to disallow saving, printing, forwarding etc. aren’t set properly, the article can travel around the world in a matter of minutes.
Educators must take even more precaution today when using copyrighted works in both the face-to-face and online classroom. Markets have been established for scholarship in all formats. This includes viable markets for single journal articles. Even though affordable permissions don’t always exist, the mechanisms are in place to seek permission with relative ease, (see any publisher’s website). Educators are expected to use the mechanisms available (the Web, email, the Copyright Clearance Center etc.) to seek permission.
Always err on the side of caution and make a “good faith effort” to seek permission. When there is any doubt about whether or not a use is considered fair—for example, after a failed attempt to contact an author or publisher—it’s best to find new material or reference the work in a non-infringing manner, see Guidelines for Classroom Copying.
“Whether or not you are within the boundaries of fair use will depend on the facts of your particular situation. What exactly are you using? How widely are you sharing the materials? Are you confining your work to the nonprofit environment of the university? To determine whether you are within fair use, the law calls for a balanced application of these four factors.” – Dr. Ken Crews
The Four-Factor Test is an approved method for deciding on a case-by-case basis, whether or not one can use a copyrighted work. If at any point the infringer exercised “bad faith” by not seeking permission, or using what s/he knew was an unlawfully made copy, this weighs heavily against fair use. Access the online Fair Use Checklist courtesy of Columbia University [PDF].
The Four-Factor Test covers the following four areas:
- PURPOSE – Non-profit, educational, teaching usually favors Fair Use
- NATURE – Published, factual, non-fiction works favor Fair Use
- AMOUNT – Small portions that are not central to a work favor Fair Use
- MARKET EFFECT – Owning a lawfully acquired copy, making 1 or few copies, favors Fair Use.
To safely distribute a copyrighted work in the classroom, or safely place a copyrighted work on reserve in the library, you should simultaneously consult the Fair Use Checklist and the Guidelines for Classroom Copying. Here’s what you need to know. The Guidelines for Classroom Copying, include three very important tests:
- Cumulative Effect
Multiple copies (one copy per student) may be made of the following, provided each includes a notice of copyright.
- A complete poem if less than 250 words.
- Not more than 250 words of a longer poem.
- An article, story or essay of less than 2,500 words.
- An excerpt from any prose work of not more than 1,000 words or 10% of the work, whichever is less.
One chart, graph, diagram, drawing, cartoon, or picture per book or periodical.
- The copying is at the inspiration of the teacher.
- The 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.
- The copying is only for one course.
- Not more than one poem, article, story, essay or two excerpts may be copied from the same author; not more than three from the same collective work or periodical volume.
- There shall not be more than nine instances of such multiple copying for one course during one class term.
Not withstanding the above, the following shall be prohibited:
- Copying shall not be used to create or to replace or substitute for anthologies, compilations, or collective works.
- There shall be no copying of or from works intended to be "consumable." Examples: workbooks, test booklets, answer sheets.
- Copying shall not:
- substitute for the purchase of books, publishers' reprints, or periodicals.
- be repeated with respect to the same item by the same teacher from term to term.
Although the primary motivation behind making classroom copies is to educate, it is also recognized that “the most obvious type of copyright infringement occurs when an entire book, story or article is copied verbatim without permission.” In addition, giving credit to the author does not make the use fair, but should always be provided. -The Copyright Handbook, NOLO, 2002.
The above summary is intended to assist teachers in staying within the boundaries of Fair Use. An unedited version of the guidelines can be found in Circular 21, Reproduction of Copyrighted Works by Educators and Librarians, published by the United States Copyright Office, page 8.
When to Obtain Permission
- If the Fair Use Checklist does not favor Fair Use.
- If the work does not meet the three tests for classroom copying: Brevity, Spontaneity, and Cumulative Effect.
How to Obtain Permission
Obtaining permission requires that you contact the copyright holder. If you know the author and publisher, you can visit the publisher's website and view their copyright permissions information. For example, visit the Wiley or Pearson Education permission's page. In general, permission should be sought at least two months prior to using the copyrighted material.
Obtaining permission to photocopy book chapters, journal articles, and material for library reserves, can also be sought by visiting the Copyright Clearance Center. Just click through the permissions online. In addition to the service charge, you pay a royalty fee set and paid to the copyright holder.
If you are having difficulty identifying the owner, the University of Texas maintains a permissions website with helpful information.
Need help finding the right contact? Try this Source and Permission Contact List provided by the National Archives.
Obtaining permission to use a video or music clip is sought in a similar way. See
the Warner Music Group FAQ, or the MGM Media Licensing site.
If you are using a video clip from a DVD or video stream, to create a new work, you’ll need to ask permission to use a clip. Usually 30 seconds of music and three minutes of video is all that is allowed under Fair Use (see the CONFU Multimedia Guidelines).
Remember, the library has access to licensed streaming videos that can be linked (in full) to Blackboard.
A Public Performance License allows for the showing of an entire video at a campus event. (Classroom teaching is not a campus event.) Some of the library's DVDs do include Public Performance Rights (PPR), meaning the license to have a non-classroom public performance has been paid, upon purchase of the DVD. All of the library's DVDs published by Bullfrog Films, Films for the Humanities and Sciences, and New Day Films, for example, include Public Performance Rights. Campus events that include video viewing should contact Swank Motion Pictures to buy a one-time viewing license, if the video is not already part of the Library's PPR video collection.
As a Harper College employee, it is important that you familiarize yourself with the College's Intellectual Property Policy prior to beginning a project where you fully intend to own the copyright.
An alternative to registering your work with the U.S. Copyright Office, is using a Creative Commons license. A Creative Commons license does not follow traditional copyright rules, and is seen as a simple standardized substitute. "Educators and learners use our licenses to share and collaboratively, [to] build textbooks, lectures, and lesson plans... We believe that scientific research, journals, and data should be available to everyone, and have legal tools that help make this happen."
It’s true that a work is automatically copyrighted once it is put into a fixed (tangible) format. But if you would like to share your own work with others, and want to make sure that you are properly credited, you may want to add a Creative Commons license to your work. After sharing your work, you might also agree that others can copy, distribute, display, and perform your work—even make derivative works based upon it, so long as you are properly credited. “Creative Commons licenses are not an alternative to copyright. They work alongside copyright and enable you to modify your copyright terms to best suit your needs.” Watch this video to see how Creative Commons works. See how the Creative Commons license works with flickr.
Course materials available from the world’s top universities are searchable on the Creative Commons site. If you are using Creative Commons licensed/copyrighted materials, there is no need to ask for permission. However, you must cite the content creator, to use it freely without issue. Visit OpenAttribute to download the free add-on for the Firefox browser.
Intellectual Property Policy and Procedure for Harper College Employees
This procedure is established to provide the College and College employees with general guidelines to follow regarding issues of Copyright and Intellectual Property. Any questions regarding this procedure should be directed to the appropriate designated union representative or to the Vice President of Administrative Services (VPAS).
A member of Harper College who creates Intellectual Property on his/her own time without the use of substantial College resources or College financial support retains full ownership and revenue rights with respect to such work(s).
The College shall not claim ownership of a work unless the work falls within the scope of employment or is commissioned by the College (see Works Made for Hire).
The College does not claim ownership of works that may be considered as falling within the scope of employment but have traditionally been recognized as belonging to originating faculty. These include theses or dissertations; books, articles, or similar works; and course materials such as but not restrict to syllabi, lecture notes, assignments, problem sets, and exams.
The College does claim ownership of course outlines, Blackboard course shells, and works that employees have produced as members of College committees.
The College shall not claim ownership of Intellectual Property created on an employee's own time unless substantial College resources and/or College financial support is used in the creation, development, or production of the work. Works created with extensive use of the resources of the Department of Instructional Technology (DoIT), for example, require an Agreement prior to project initiation. Works created at the employee's will and initiative on his/her own time, but with College financial support (e.g., paid sabbatical, special project grant, fellowship, etc.) also require an Agreement prior to project commencement. Without said Agreement, ownership will default to 50% College owned and 50% employee owned. (Use of students in classrooms to test out materials or inventions will not be considered College support.)
If interested in ownership, a member of Harper College who plans to undertake a project to develop Intellectual Property using substantial College resources and/or College financial support must inform the Office of the VPAS or designated union representative prior to the commencement of the project. Advance notice is required to allow sufficient time for drafting an Ownership Agreement, defining and providing legal protection for the work and the rights of the member and the College.
Any disputes between the member and the College shall be resolved pursuant to the grievance procedures contained in the contract governing each member's employment at the College. In this process, the parties may call upon the services of an expert in copyright and intellectual property law and practice.
In the absence of an Agreement, ownership would default to 50% College owned and 50% employee owned and equity would be distributed as described under Revenue Distribution.
For works completed prior to the enactment of this policy, ownership will be assigned according to the Board-approved Copyrights and Patents Manual of January 25, 1990. If applicable, equity will be distributed as described in that document.
It is strongly recommended that members of Harper College working jointly on an Intellectual Property project enter into an Agreement with the other persons on the issues of ownership and related rights. This would include entering into an Agreement when the creator plans to make extensive use of College services such as those provided by the DoIT.
RESPONSIBILITIES OF OWNERSHIP
The copyright owner is responsible for protecting the work against infringement and may decide to register the copyright with the Library of Congress at www.copyright.gov as part of such protection. The copyright owner is also responsible for obtaining appropriate written releases for any materials used in the production of the work.
Harper does not view becoming a publisher or distributor of created materials for profit as part of its mission. Employees looking for such services should not expect Harper to be a provider.
Property rights may be shared by the College with other entities, as defined by the Agreement. Requests to utilize property rights of which the creator is partial owner or non-owner will be handled through a licensing agreement. Licensing agreements with other educational institutions or nonprofits may be at no cost.
The licensing agreement will include the following:
- a provision on the issue of ownership of the work;
- a provision on attribution of the work;
- a license provision specifying uses that may be made out of said work, including if and how it can be maintained, updated, or serve as the basis for derivative works;
- a Harper point of contact;
- a disclaimer on copyright clearances "shared as is";
- any limits; and
- a perpetual, no-cost, worldwide, nonexclusive license for the College to use, maintain, update, and prepare derivative works from the licensed works for use in the teaching and learning activities of the College.
Net income resulting from Intellectual Property developed with substantial College resources and/or College financial support and to which thus the College claims full or partial ownership shall be divided among the creators of said property and the College. Such allocation shall be specified in the Agreement referred to above, reflecting the nature, degree, and source of support for the project, and the importance of amply rewarding creativity. In general, net income resulting from said Intellectual Property will be allocated among the creator(s) and the College as follows:
- 50% to the creator(s) and
- 50% to the College.
These allocations are general guidelines only. The Agreement will dictate the division and allocation of revenues arising from the Intellectual Property developed, based on the nature of the project, resources to be used, the parties involved, and funding advanced, if any.
ADDITIONAL CIRCUMSTANCES NEEDING AN AGREEMENT
Ownership, revenue, and use rights in works created by a member of Harper College as part of a project funded by an external entity, such as a state or federal grant, or a grant from a private foundation or agency, shall be expressly defined in the grant documents. If the grant documents do not include such provisions, the College and the member will enter into an Agreement, prior to the commencement of the project, defining such rights.
Rights in works created by a member of Harper College (normally, full-time employees) as part of a project funded by the College (e.g., sabbatical leave, special project grant, or released-time assignment) will be defined by an Agreement between the member and the College prior to the commencement of the project.
Rights in works created by a member of Harper College (normally, adjuncts) that are commissioned by the College or produced with substantial College resources or with College financial support (e.g., in the form of overloads or stipends) may be shared by the College with the member as defined by an Agreement between the member and the College.
In each case, the Agreement will include the following:
- a provision on the issues of ownership and use of the work and
- a provision on the issue of revenues arising from the work.
Without said Agreement, ownership would default to 50% College owned and 50% employee owned; equity would be distributed as described under Revenue Distribution.
Commissioned Work: Specially ordered work.
Exclusive License: When the copyrighted work in question is not governed by any other licensing agreements. Under the 1976 Copyright Act, an exclusive license is considered an assignment of copyright ownership and is not valid unless it is in writing and signed by the copyright owner.
Intellectual Property: Includes physical manifestation of intellectual effort including inventions, discoveries, know-how, show-how, processes, unique materials, original data, and other creative or artistic works that have value. Also includes works of authorship, inventions, and discoveries that may be subject to protection by patents, copyrights, trademarks, service marks, and trade secrets. Includes, without limitation, books, texts, articles, monographs, glossaries, bibliographies, study guides, laboratory manuals, syllabi, tests and work papers, lectures, musical compositions, dramatic compositions, unpublished scripts, films, filmstrips, charts, transparencies or other visual aids, video and audio tapes and cassettes, computer programs, live video and audio broadcasts, computerized and computer-assisted instructional materials, Internet course content, programmed instructional materials, multimedia instructional materials, processes and methodologies, drawings, paintings, sculptures, photographs, and other works of art.
License: Permission granted by the owner of Intellectual Property to a licensee to do something that, without the license, would not be allowable.
Nonexclusive License: When a license allows another person to use the copyrighted work in a manner specified by the copyright owner, but does not assign any exclusive rights. Nonexclusive licenses are not considered an assignment of ownership and need not be in writing.
Resources Usually and Customarily Provided: Includes such support as office space, library facilities, ordinary access to computers and networks, or salary. In general, it does not include use of employees as support staff to develop the work, or substantial use of specialized or unique facilities and equipment, or other special subventions provided by the College. The understanding of what resources are usually and customarily provided (especially the resources referred to by the phrase "ordinary access to computers and networks") changes over time.
Result of College Financial Support: Includes work done on sabbatical, special projects, or reassigned time.
Scope of Employment: Work that an employee is hired to perform, occurring substantially within authorized time and space limits and actuated, at least in part, by a purpose to serve the College.
Substantial College Resources: Resources beyond what is usually and customarily provided to members of Harper. This includes extensive use of College time, staff, equipment, laboratories, physical plant, or other resources.
Works Made for Hire: As defined in §101 of the 1976 Copyright Act, "(1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a 'supplementary work' is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an 'instructional text' is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities."
- Fair Use of Copyrighted Works
- HEOA Copyright Infringement Compliance Plan
- Issues and Fair Use Guidelines Handbook
- Copyrighting Your Own Work
Want to Know More?
Adler, Prudence S., Aufderheide, Patricia., Butler, Brandon. Jaszi, Peter., eds. Code Of Best Practices In Fair Use For Academic And Research Libraries. [Washington, D.C.] : Association Of Research Libraries, 2012. Web.
Code of Best Practices in Fair Use for Online Video. Center for Social Media, 2008. Web.
Enghagen, Linda K. Copyright Compliance Made Simple: Six Rules for Course Design. [Needham, MA] : Distributed By Sloan-C, 2005. Web.
Crews, Kenneth D. Copyright Law For Librarians And Educators: Creative Strategies And Practical Solutions. Chicago : American Library Association, 2012. Web.
Enghagen, Linda K., eds. Fair Use Guidelines For Educators: Books And Periodicals, Music, Off-air Recordings Of Broadcasts, Multimedia, Distance Learning, Digital Images, Software. [Needham, MA] : Distributed By Sloan-C, 2005. Web.
Lehman, Bruce A. The Conference On Fair Use: Final Report To The Commissioner On The Conclusion Of The Conference On Fair Use.Washington, DC : Working Group On Intellectual Property Rights Of The Information Infrastructure Task Force, 1998. Web.
If you still have questions after reviewing the copyright links above, you may contact the following college personnel:
Resources for Learning
- Njambi Kamoche – Dean, Resources for Learning
- Kim Fournier – General questions, print, media, reserve and online use
- Tom Goetz - General questions, print, media, reserve and online use
- Dave Braunschweig – General questions
- Collette Marsh-Bockman – General questions
- Josh Sunderbruch – General questions
Academy for Teaching Excellence
- Melissa Baysingar – General questions
- Brian Knetl (Interim Provost) – Report Alleged Copyright Infringement