The Five Step Approach For Analyzing Copyright Use
Analyze A Copyright Use Question In Five Steps
Originally titled “Using Copyrighted Works In Your Teaching – FAQ” by By Peggy Hoon, J.D., as the Visiting Scholar for Campus Copyright and Intellectual Property, Association of Research Libraries.
Copyright 2007 Peggy E. Hoon
No changes to this document may be made without permission.
You don’t need a lawyer to answer many of your common copyright questions. What is needed, however, is for your decision about using a copyrighted work to rest solidly on a reasonable, good faith analysis of relevant circumstances. Such an effort is important because it is the right thing to do and because the U.S. Copyright Act provides relief from monetary statutory damages to employees of non-profit educational institutions, acting within the scope of their employment, who base their copyright decision on a reasonable, good-faith evaluation.
1. Is the work copyrighted? If not, no further analysis is needed. If yes or if you don’t know, read on.
2. Is the work covered by a license, such as those governing my library’s electronic journals and databases?
3. Is there a specific provision in the copyright law that supports my proposed use without seeking prior permission from the copyright holder?
4. Does the fair use provision of the copyright law justify my proposed use?
5. Do I need permission from the copyright holder for the use I propose?
The information below will help you explore these questions and reach an informed conclusion.
1. How do I know if the work I want to use is copyrighted?
Copyright protection arises automatically the moment an original work is fixed in a tangible medium of expression. It does not need to be registered, published, or have a copyright notice on it. Copyright has expired for works published in the U.S. before 1923 and, therefore, they are in the public domain. However, beginning January 1, 2019, this benchmark - 1923- will update to 1924. Each year thereafter, the benchmark year will progress. For example, on January 1, 2020, the benchmark year will be 1925 and so on. For other works that may have entered the public domain, see Copyright Term and the Public Domain in the United States.
Another exception is works produced by U.S. government employees as part of their job; these are not copyrighted and neither is government information.
Your default assumption should be that everything you are likely to use is copyrighted unless it’s very old or produced by the U.S. government.
Of course, this does not automatically mean that you need permission to use it in some way for teaching. See the rest of this document for an explanation of teaching uses allowed by the law.
Importantly, providing a URL or linking to a work is always an option. The copyright law never precludes you from linking to a copyrighted work and you do not need permission.
a. What if I got the work from a web site that
- didn’t say anything about copyright?
- didn’t have a copyright notice?
- said everything on it was public domain?
- said I could use it for teaching?
Web sites vary considerably in terms of quality, authenticity, validity, and accountability. Works residing on a site that is silent on copyright should be presumed to be copyrighted (with the exception of U.S. government web sites.)
For works on sites claiming to be in the public domain, you will have to judge whether or not these claims are trustworthy, keeping in mind that such claims will not protect you should a copyright holder object to your use. Similar assessments will need to be made about sites purporting to give permission to use. Only the real copyright holder, or those authorized by him or her, can give permission. Do you believe the entity giving you permission fits one of these categories?
Fair use is the only copyright provision of the copyright law that allows you to make a copy to display or distribute a copyrighted work that you find on web sites. In order to lawfully make use of such works, without obtaining the permission of the copyright holder, you must decide whether your use is a fair use or direct students to a link to the work.
b. What if I created the work?
Unless you wrote the work under contract as a work for hire (an independent contractor or an employee), you are the author and the initial copyright holder. If, however, you have transferred your copyright to another entity (in writing), without retaining any use rights for yourself, you are no longer the copyright holder and have no special privileges to use the work.
To keep your copyrights, the next time a publisher’s agreement proposes transferring exclusive rights from you to it as a condition of accepting the work for publication, consider retaining the rights you need to place your own work in an open archive and sharing it with your students. The SPARC Author Addendum is one means of securing these rights.
c. What if a student created the work?
Students hold the copyright to the works they create, such as their papers, projects, theses, and dissertations. If you wish to use their work, absent any relevant university policy, you will have to treat it like any other copyrighted work.
2. Many copyrighted works are accessed through a campus license that can override copyright. How do I know if the work I want to use is covered by such a license?
You are most likely to encounter licensed works via your campus library’s electronic journals and databases. Libraries vigorously negotiate licenses for such materials and are usually successful in getting the rights you need to use the works in your teaching. However, if you have a specific concern, contact your library.
You may also encounter works governed by licenses that specifically grant or affirm rights to use them such as those employing the Creative Commons model. Using a Creative Commons notice, creators specify the rights conveyed to users such as to copy, distribute, display, and perform the work, provided attribution is given. Watch for the double ©© in a box.
Learn more about Creative Commons.
You can link to the material from your online class unless specifically prohibited by the license. Commonly a publisher's or aggregator's license with a research library will allow faculty and students to share it with other authorized users covered by the license. In an online class, your students will be "authorized users". However, your class web site should not become a portal for the rest of the world to acces your library's licensed resources. You can avoid this be restricting access to your class site to the enrolled students.
3. A. Traditional Face-To-Face Classroom
The work I want to use in class is both copyrighted and free of any license. Does the copyright law grant me any specific rights to use it in a traditional classroom setting?
Yes. Section 110(1) of the copyright law makes special provision for displaying images, playing motion pictures or sound recordings, or performing works in classes.
You may display or perform a work in your class without obtaining permission when your use is
- for instructional purposes;
- in face-to-face teaching; and
- at a nonprofit educational institution.
If you don’t meet all three of these criteria, consider whether what you have in mind is a fair use. Fair use is addressed below in #4. The rest of question #3, below, discusses movies, images, playing music, and creating handouts.
a. Can I show part or all of a copyrighted movie in my classroom? And does it matter if I’m
- using my own copy?
- using the library’s copy?
- using a copy I rented from a store?
- using a copy I taped from TV?
In order to fit within the 110(1) exemption, the copy, whoever it belongs to, must have been “lawfully” made. Note that a fair use copy is lawfully made. (See fair use described below in question #4.) What this is intended to prohibit is the use of bootlegged or pirated copies.
Under section 110(1), you are allowed to show all or part of any of these copies in your face-to-face classroom as long as it is for the educational purposes of your class (not just entertainment). In particular, you can show a rented movie as long as you have not entered into a license or agreement with the rental store that would prohibit such use.
b. The copy I have is VHS or a DVD and is getting worn out. Can I
- digitize it or copy it and show that?
- ask the library to digitize either my copy or theirs for showing in class?
There is nothing in section 110(1) that addresses “reproduction” which is what migrating your VHS copy to digital format would be. In order for you, the professor, to digitize your VHS, you would have to rely on fair use (see question #4, below), which may justify digitizing portions of the work, but probably not the entire movie. If the work is available in digital format, buy it (or ask your library to buy it) and you can show that.
If the work is not available in digital format for you or your library to purchase, your library can digitize its VHS copy as long as it can be reasonably described as deteriorating. The library is allowed to do this pursuant to a different section of the Copyright Act.
c. Can I display a copyrighted picture, image, graph, chart, text, etc. to my class?
Yes, you may display these kinds of copyrighted works in your class. However, what you need to consider is how you obtained the copy of the image etc. that you want to display. Are you using slides (35 mm or digital) you made from
- printed books or journals?
- the library’s electronic databases and journals?
- works you found on a Web site?
Reproducing a picture, image, graph, etc. from printed works or works found on the web, in whatever format, is not covered in section 110(1). Your reproduction must be considered a fair use (see question #4, below) or you need to seek permission. There is often a strong fair use argument in favor of this practice.
Reproducing works obtained from the library’s electronic databases and journals, on the other hand, is governed by the terms of the campus license. Consult your library to be confident this kind of use is permitted by the license.
For works found on the web, consider accessing the work from a “live” projection of the site during class.
d. Can I play music to my class?
e. Can I copy a chapter or article as a handout for my lecture?
You may be able to make such handouts but you must turn to fair use for your answer. (See question #4, below.) Also, remember that copyright law never restricts you directing your students to a link for a copyrighted work.
B. The work I want to use in my online class is both copyrighted and free of any license. Are there any specific provisions of the copyright law that apply to online classroom use?
Yes, Section 110(2) of the copyright law (aka the "TEACH Act") specifically applies to displaying images, playing motion pictures or sound recordings, or performing works in your online class. Since this section applies to any "transmissions" of performances or displays, cable television classes would also be included here.
There are a number of institutional and faculty member obligations that must be fulfilled in order to use the TEACH Act (110(2)).
Generally, to perform or display a work in your online class, the work must be
• used under your supervision
• as part of the class session
• as part of systematic mediated instructional activities (see j. below)
• directly and materially related to the teaching content
The work must be lawfully made and not excerpted from a product that was specifically designed and marketed for use in an online course.
Furthermore, there are three additional requirements:
• You must password protect or otherwise restrict access to your online class site to entrolled students, and
• You must reasonably prevent your students from being able to save or print the work, i.e., control the "downstream" uses, and
• You must include a general copyright warning on your class web site.
If the above circumstances and requirements are met:
a. Can I show part or all of a copyrighted movie?
• Using my own copy?
• Using the library's copy?
• Using a copy I rented from a store?
• Using a copy I taped from TV?
Can I digitize a VHS movie?
Can I make a DVD of all the clips I use and distribute it to the class?
In order to fit within the 110(2) provision, you can use a 'reasonable' portion of a movie or a piece of music. (Note: this differs from the face-to-face classroom where you may play the entire work.) The currently acceptable 'downstream' control is to use streaming technology. The copy you excerpt from must be lawfully made and not specifically designed and marketed for online courses.
Under 110(2), you may digitize the reasonable portions you intend to use from a VHS or other non-digital format, as long as there is no digital version available to the institution or the available digital version is encrypted.
Section 110(2) would not permit you to make a DVD of your online clips to provide your student with their personal copy because you cannot control the uses made after the class session. You should consider whether this would be permitted as a fair use.
b. Can I display a copyrighted picture, image, graph, or chart in my online class?
Yes, as long as it is a work you would have shown in a face-to-face classroom setting and you comply with the other general 110(2) requirements listed above. This provision is very helpful to classes that use large numbers of images, such as art history. The challenge lies in controlling the downstream uses of the material, e.g., preventing your students from saving or printing the works. Some institutions have devised solutions that allow the viewing of images, but protect the images from being downloaded, saved, or printed.
c. Can I post journal articles or book chapters?
Because you can only post online the amount you would display in a traditional class, Section 110(2) does not authorize posting journal articles, book chapters, and other large chunks of text that you wouldn't have show in a traditional class. For this type and amount of material, you should consider linking, fair use, or permissions.
If the text is something you would have displayed in a face-to-face traditional class setting, such as a poem or newspaper clipping, you may digitize and post it on your class web site. Again, you can digitize a printed or other non-digital work as long as a digital version is unavailable or encrypted. Keep in mind that you are not required to use Section 110(2) - linking, fair use, and permissions are always an option.
d. Can I use the works more than one semester?
e. Can I display newspaper articles?
Yes, if you would have displayed the article in a traditional class, perhaps for class discussion. If you only want the students to read the article outside of class and be prepared to discuss it in class, Section 110(2) would not apply. You might consider linking, fair use, or permissions.
f. Can the materials stay up throughout the entire course?
g. Is there a limit to how many times materials can be viewed or played during the course?
h. Can students or teaching assistants post materials on the class site or only the professore?
Yes, students and teaching assistants may also post.
i. What if I want my students to be able to print everything on the course web site?
Many professors ae unhappy with the downstream control requirements because they want their students to be able to print materials from the course web site. If this is the case, Section 110(2) becomes inapplicable and you must fall back on linking, fair use, or permissions.
j. What are mediated instructional activities (as defined in Section 110(2), aka the TEACH Act)?
Mediated instructional activities are activities that use such [permitted] works
• as an integral part of the class experience
• under the control or actual supervision of the instructor
• in a manner analogous to performances and displays in live classroom settings.
According to the Senate Report accompanying the TEACH Act, such activities must use the works as part of the course rather than anciliary to it. Thus the TEACH provision would not cover "student use of supplemental or research materials in digital form, such as electronic coursepacks, e-reserves, and digital library resources."
4. What is fair use and when would I need to rely on it for either my traditional classroom or my online classroom uses?
The fair use provision of the copyright act (section 107) is always potentially available as an option, even if another specific and more directive provision of the law also applies. Fair use is a very important provision of the copyright law for educators. What is it?
Fair use allows use, often limited and certainly specific to the facts surrounding the proposed use, of copyrighted material without requiring prior permission from the copyright holder. The statute lists four factors to be weighed when analyzing the proposed use in order to determine whether it is a fair one.
Consideration of all factors is required although all factors do not have to be in favor of a use to make it a fair one.
A fair use analysis is necessarily a fact-driven one. Each unique set of facts regarding a proposed use leads to its own reasoned conclusion. Reasonable individuals may come to different decisions concerning the same set of facts, but the operative word is "reasonable."
The four fair use factors are as follows:
1. The purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes;
2. The nature of the copyrighted work;
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. The effect of the use upon the potential market for or value of the copyrighted work.
For assistance in analyzing these factors relative to your proposed use, see the Fair Use Considerations Worksheet. Although this worksheet, like many other fair use checklists, appears to reduce the fair use analysis to which result has more checkmarks, a fair use analysis is actually more like an essay question than a T/F question. These checklists are only tools to remind and help inform you of the factors you must consider.
In the face-to-face classroom setting, you will usually need to consider fair use when you are reproducing material, either to show to the class or to hand out copies.
5. Suppose I decided to ask for permission anyway?
If you wish to pursue permission for your use, you will need to identify and locate the copyright holder, a task often easier said than done. Sample letters and suggestions can be found at this Permissions Guide. Allow yourself plenty of time and patience. See below if you can’t reach a copyright holder.
a. What if they say no, but now I believe fair use or a specific provision of the copyright law applies? Am I disadvantaged because I asked?
Previous payment of a fee or even outright denial of permission does not preclude you from exercising your rights under the Copyright Act. You can still employ an appropriate specific exemption or the fair use provision. There is no presumption against you for having asked for permission.
b. What if they don’t respond?
Lack of response does not translate into a passive grant of permission to use. If your proposed use exceeds all exemptions in the law, including fair use, you probably need to direct your students to a link to the work, find another work to use, or modify your proposed use to fit within fair use.
c. What if the work is out of print? Is that the same as out of copyright?
“Out of print” is not the same as “out of copyright.” An out of print work may still be protected by copyright and should be approached the same as a work still in print.
d. What if I can’t find current contact information for the copyright holder? For example, what if the publisher is out of business or the author is deceased?
These situations present the problem of a work whose copyright holder, while identified, cannot be located, despite reasonable efforts. These works are known as "orphan works."
Educators and libraries must make individual decisions concerning their use of orphan works, including evaluating the risk of liability. Those who proceed with their use should document and preserve all efforts to locate the copyright holder. In the unlikely event that a copyright holder should appear and object, he or she is usually satisfied if the use is just discontinued.