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(The following material is excerpted from a guide published by the University of Maryland, at
http://www.umuc.edu/library/copy.html).
This page is devoted primarily to the use of copyrighted materials in classroom teaching. You may want to look at CBU's Interlibrary Loan and Reserve policies, which address related copyright issues.
Copyright Basics | Introduction to Fair Use | Getting Permission | Helpful Links
COPYRIGHT BASICS
What is copyright?
"Simply put, 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."
- Steven Fishman, Esq., The Copyright Handbook, 1996.
The intent of copyright is to advance the progress of knowledge by giving the author of a work an economic incentive to create new works.
What can be copyrighted?
Tangible, original expression. This means, for example, that a verbal presentation which is not recorded cannot be copyrighted. However, anything tangible can be copyrighted. There are three fundamental requirements for something to be copyrighted:
1. Fixation: The item must be fixed in some way. For example, a piece of paper, a computer disk, an audiotape, or a videotape are all legitimate forms of fixation.
2. Originality: The work must be original. Examples of originality include a student's email message to a professor, as well as a novel. Both are considered examples of original expression. It is not necessary for a work to be completely original. Works may be combined, adapted, or transformed in new ways that would make them eligible for copyright protection.
3. 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?
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Works in the public domain:
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Ideas are in the public domain.
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Facts are in the public domain.
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Words, names, slogans or other short phrases cannot be copyrighted. However, slogans can be protected by trademark law.
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Blank forms
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Government works, which include judicial opinions; public ordinances; administrative rulings
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Works created by federal government employees as part of their official responsibilities
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Works for which copyright wasn't obtained or copyright has expired
What does copyright protect?
Copyright provides authors fairly substantial control over their own work. The four basic protections are:
1. The right to make copies of the work
2. The right to sell or otherwise distribute copies of the work
3. The right to prepare new works based on the protected work
4. The right to perform the protected work (such as a stage play or painting) in public
INTRODUCTION TO FAIR USE
Fair use is the most significant limitation on a copyright holder's exclusive rights. Deciding whether the use of a work is fair IS NOT a science. There are no set guidelines that are universally accepted. Instead, the individual who wants to use a copyrighted work must weigh four factors:
1. The purpose and character of the use:
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Is the new work merely a copy of the original? If it is, it may not be fair use.
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Does the new work offer something above and beyond the original or transform the original work in some way? If the work is altered significantly, used for another purpose, or appeals to a different audience, it is more likely fair use.
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Is the use of the copyrighted work for nonprofit or educational purposes? If so, it is more likely to be fair use.
2. The nature of the copyrighted work:
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Is the copyrighted work published or unpublished? Unpublished works are less likely to be considered fair use.
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Is the copyrighted work out of print? If so, it is more likely to be fair use.
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Is the work factual or artistic? The more a work tends toward artistic expression, the less likely it will be fair use.
3. The amount and substantiality of the portion used:
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The more you use, the less likely it will be fair use.
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Does the amount you use exceed a reasonable expectation? If it approaches 50% of the entire work, it is likely to be an unfair use of the copyrighted work.
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Is the particular portion used likely to adversely affect the author's economic gain? Using the "heart" or "essence" of a work is less likely to be considered fair.
4. The effect of use on the potential market for the copyrighted work:
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The more the new work differs from the original, the less likely it will be considered an infringement.
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Does the work appeal to the same audience as the original? If so, it will more likely be an infringement.
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Does the new work contain anything original? If it does, it is more likely that the use will be considered fair use.
What are the rules for fair use for instructors?
Copying by teachers must meet the tests of brevity and spontaneity.
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Brevity refers to how much of the work you can copy.
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Spontaneity refers to how many times you can copy.
According to the rule, the need to copy should occur closely in time to the need to use the copies (as if there were not enough time to seek permission). 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 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.
What should be avoided?
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Making multiple copies of different works that could substitute for the purchase of books, publisher's reprints, or periodicals.
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Copying the same works from semester to semester.
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Copying the same material for several different courses at the same or different institutions.
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Copying more than nine separate times in a single semester.
Is information on the Internet part of the public domain?
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Always assume that a work is copyrighted. The Internet IS NOT the public domain, as there are both copyrighted and uncopyrighted materials available.
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Find out if the author of a work (e.g. video, audio, graphic, icon) provides information on how to use the work. If explicit guidelines exist, follow them.
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Whenever feasible, ask the copyright owner for permission. Keep a copy of your request for permission and the permission received.
A note about "special works"...
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These are defined as "Works that combine language and illustrations and which are intended sometimes for children and at other times for a general audience." A child's book is an example.
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Special works should never be copied in their entirety.
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An excerpt of no more than two pages or 10 percent, whichever is less, is the rule for special works.
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The use of the copies should be for one course at one school.
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The copies should include a notice of copyright acknowledging the author of the work
GETTING PERMISSION
Permission to use a copyrighted work is required:
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When you intend to use the materials for commercial purposes
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When you want to use the materials repeatedly
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When you want to use a work in its entirety and it is longer than 2,500 words
Invariably, each member of the university community encounters situations where we need to obtain permission from a copyright owner. At the Copyright Clearance Center (http://www.copyright.com), you can get permission to reproduce copyrighted content such as articles and book chapters in your photocopies, coursepacks, library reserves, Web sites, e-mail, and more. The CCC acts as an agent, so you don't have to deal directly with the publishers and authors themselves.
From "Obtaining Permissions" (www.cetus.org/fair7.html)
A common situation might involve photocopying an entire article or book chapter into a course reader that students will purchase, or mounting substantial text or graphic work onto a publicly accessible web page.
If you do not obtain permission through an authorized agent such as the CCC, you must contact the copyright owner. Often the copyright owner is named in the formal copyright notice accompanying the work. Such notices are no longer required to obtain copyright protection, so many works lack the notice or include the name of someone who is not the current copyright owner. Nevertheless, you should logically begin your search for the copyright owner by directly contacting the author or publisher. Reference librarians can help in finding names and addresses. Your quest for the copyright owner can be simplified by calling the parties on the phone and asking direct questions about ownership and rights of use.
Please bear in mind that copyright owners have wide discretion when responding to your request for permission. Your permission may be granted, denied, or granted, but only on condition of paying a fee. The fee may be modest or exorbitant. Copyright owners have no obligation to respond at all. For most common uses of materials for educational and research purposes, you will often find that copyright owners are cooperative and understand your needs.
The following is a sample letter to adapt when requesting permission. Remember that a telephone call before sending a letter may give you the exact name and address of the person to contact or even give you an immediate answer to your request. Oral permission granted over the telephone is legally valid, but good practice requires that you document the permission with a letter that the grantor will sign and return to you.
Sample Letter
[letterhead stationery or return address]
[Date]
[Name and address of addressee]
Dear [title, name]:
[If you called first, begin your letter: This letter will confirm our recent telephone conversation.] I am [describe your position] at [name of university]. I would like your permission to [explain your intended use in detail, e.g., reprint the following article in a coursepack for my course.]
[Insert the full citation to the original work.]
Please indicate your approval of this permission by signing the letter where indicated below and returning it to me as soon as possible. My fax number is listed above. Your signing of this letter will also confirm that you own [or your company owns] the copyright to the above described material.
Thank you very much.
Sincerely,
[Your name and signature]
PERMISSION GRANTED FOR THE USE REQUESTED ABOVE:
[Type name of addressee below signature line]
Date:
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