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Copyright: Introduction to Copyright

Copyright Basics for Educational Use

Copyright

What is copyright?
According to the U. S. Copyright Office, "copyright" is a form of protection provided by the laws of the United States (under Title 17 of the U.S. Code) to the creators of "original works of authorship" including: literary, dramatic, musical, artistic, and certain other published and unpublished works, once they are "fixed in a tangible form of expression".1

What rights do copyright holders have?
Section 106 of the law gives the owner of copyright the exclusive right to do and to authorize others to do the following activities: make copies, prepare derivative works, distribute copies, perform/display the work publicly.

Are there limitations to a copyright holder's rights?
Yes. Even though it is illegal to violate any of the rights granted to a copyright holder, their rights are limited in scope and may be subject to one or more exemptions from copyright liability.2

How long does a copyright last? 
The U.S. Copyright Office says "the term of copyright for a particular work depends on several factors, including whether it has been published, and, if so, the date of first publication." 3 Once a copyright expires, the work becomes part of the "Public Domain" and can be used freely.

     For works created after January 1, 1978: life of the author plus 70 years 

     For joint works: life of the last surviving author plus 70 years

     For anonymous works, pseudonymous works, and works for hire: 95 years from the year of first publication or  
          120 years from the year of creation, whichever expires first

     For pre-1978 works:  the total term is extended to 95 years from the date that copyright was originally secured.

A work published in 2015 would be protected until at least 2085!

Copyright Limitations & Exemptions:

As mentioned above, the rights of a copyright holder are subject to certain limitations & exemptions. As a result, there may be situations which permit the constituents of an accredited, non-profit, educational institution (like Canisius College) to use materials without having to seek permission. 

Some of the most useful Limitations & Exemptions for educators are:

  • Public Domain
  • Fair Use Exemption
  • Classroom Exemption (Face-to-Face)
  • Distance Exemption (TEACH Act)
  • DMCA Exemption (allowing circumvention of copy-protection measures)

See the following tabs for more information of each of these limitations and/or exemptions.

Public Domain
The public domain consists of those works whose copyright protection has expired, as well as those which never had copyright protection in the first place. According to the U.S. Copyright Office, "Works in the public domain may be used freely and without the permission of the former copyright owner." 1  

       Examples include:
       Works published before 1923
       Publications created by the U.S. Government


How long does a copyright last?
The U.S. Copyright Office indicates that "the term of copyright for a particular work depends on several factors, including whether it has been published, and, if so, the date of first publication." 2 Once a copyright expires, the work becomes part of the "Public Domain" and can be used freely.


References:

U. S. Copyright Office. (2010). Where is the public domain? Retrieved from http://www.copyright.gov/help/faq/faq-definitions.html#public_domain

U. S. Copyright Office. (2010). How long does a copyright last? Retrieved from http://www.copyright.gov/help/faq/faq-duration.html#duration

Fair Use
The provision of "Fair Use" is described in Section 107 of U.S. Copyright Law. Under certain circumstances, Fair Use permits the reproduction of copyrighted materials without requiring permission from the copyright holder.

The U.S. Copyright Office factsheet on Fair Use, FL-102, explains that "Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research." 

Section 107 also outlines four (4) factors to be considered when determining whether or not a particular use is "fair". The Four Factors are:

  1. The purpose and character of the use, including whether such use is of 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
  4. The effect of the use upon the potential market for, or value of, the copyrighted work

The U.S. Copyright Office, itself, admits in FL-102 that the determination of Fair Use can be challenging. "The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission....The safest course is always to get permission from the copyright owner before using copyrighted material....When it's impractical to obtain permission, use of copyrighted material should be avoided unless the doctrine of fair use would clearly apply to the situation." 1


References:
U. S. Copyright Office. (2010). Fair Use. Retrieved from http://www.copyright.gov/fls/fl102.html 

To determine if your use applies to Fair Use, ask yourself these questions:

  1. What is the purpose of the use? Educational purposes and single copies for non-profit or personal use are more likely fair use. Uses for commercial purposes would require permission.
  2. What is the nature of the material? Factual, scientific information, or historical data favor fair use. Creative fiction, unpublished works, music, novels, films, plays would most likely require permission.
  3. How much of the work will be used? If the amount is a small proportion of the work, it is more likely to be considered a fair use. A substantial portion or central portion of the work would require permission.
  4. What is the effect of the use of the copied materials on the market of the original work? If the use would deny the owner of the copyright his/her due, then the use would not be deemed a fair use. If the user owns or has purchased the original work and this is one of few copies made which does not affect the potential market for the original, this would be an application of fair use.

 

  • NOTE: It is recommended that you complete the checklist and print a copy to serve as a record of your rationale, in the event that your Fair Use decision is challenged by the copyright holder.

Face-to-Face Classroom Exemption1
Instructors and students at an accredited nonprofit educational institution in the United States may —in compliance with certain stipulations— use, display, and/or perform in a classroom environment, any copyright-protected material or work without seeking the copyright holder permission normally required under U.S. copyright law. This section explains these stipulations and provides a general description of the most common types of materials covered by the face-to-face classroom exception under Section 110(1)  of U.S. copyright law. Please click on the following links to learn more about what is permitted:

Face-to-Face Classroom Stipulations
The stipulations governing the display and performance of copyright-protected material in the classroom are few, but important.

  • The copyright protected materials must be legally obtained.
  • The intent and purpose of their in-class use must be strictly educational.
  • Distribution must be in a location designated primarily for educational purposes.
  • Both teaching and learning must be occurring simultaneously.

As with Distance Education, it is the individual responsibility of every instructor at Canisius College, in compliance with federal law, to make good faith determinations regarding copyright-protected materials used in class and be able to argue credibly in support of those determinations.

Displays and performances falling outside the qualifying stipulations above, may very well fall within the Fair Use guidelines however, each should be carefully scrutinized for compliance before proceeding. (See Fair Use)

Most Common Materials Covered
Under the face-to-face classroom exemption, all types of the following copyright-protected materials may be displayed and/or performed in the normal classroom environment. The stipulation being that the intent is for educational (not entertainment) purposes.

  • Printed Materials
    Book chapters as well as newspaper, magazine and academic journal articles may, in most every instance be copied and handed out in class, the exception being consumables. In other words, such things as copies of whole textbooks (handed out chapter-by-chapter in successive classroom sessions), standardized workbooks and/or test materials, etc., intended for commercial distribution and individual purchase, may not under any circumstances be copied and given to students as a hand-out. 
  • Musical Reproductions
    Audio recordings of musical performances may be played in class in most every instance. An exception would be playing background "elevator" music in a classroom. Such use does not have a teaching and/or learning component and would therefore infringe upon the rights of the copyright holder. 
  • Still Images
    Visual images or "stills" as they are commonly referred to, including photos, graphs, charts, diagrams, maps, slideshows, PowerPoints, etc. may be shown in the classroom in most every instance. 
  • Audiovisual Materials
    Segments of TV shows, documentary films and movies, etc. —illustrative of or related to course content— are allowed in most every instance.

References:

Adapted with permission from Colorado State University Institute for Learning and Teaching (TILT). Retrieved from http://teaching.colostate.edu/guides/copyright/exemption_classroom.cfm

The DMCA (Digital Millenium Copyright Act) of 1998 criminalizes the production or dissemination of technology or services that circumvent digital rights management intended to control access to copyrighted works. There were exempttions passed in July of 2010 that give educators more rights including mking copies of short pieces of DVDs for non commercial uses.

Digital Millenium Copyright Act (DMCA) 
The U.S. Copyright Office explains that "the Digital Millennium Copyright Act of 1998 (DMCA) was the foundation of an effort...to move the nation's copyright law into the digital age..." and that the "...enactment of the DMCA was only the beginning of an ongoing evaluation by Congress on the relationship between technological change and U.S. copyright law."1

"Section 1201(a)(1) of the copyright law requires that every three years [the Librarian of Congress] is to determine whether there are any classes of works that will be subject to exemptions from the statute’s prohibition against circumvention of technology that effectively controls access to a copyrighted work." 2  

Exemptions to DMCA
Some recent revisions may affect higher education.

United States Copyright Office has a "Statement from the Librarian of Congress on the Anticircumvention Rulemaking" (dated 7/26/2010) in which the Librarian of Congress, James Billington, describes which types of work are to be exempt from DMCA.

Resources to Guide You


References:

1 U. S. Copyright Office. (2010). Executive Summary - Digital Millennium Copyright Act . Retrieved from http://www.copyright.gov/reports/studies/dmca/dmca_executive.html

2 U. S. Copyright Office. (2010). Statement from the Librarian of Congress on the Anticircumvention Rulemaking. Retrieved from http://www.copyright.gov/1201/2010/Librarian-of-Congress-1201-Statement.html

The TEACH Act
In 2002, the TEACH Act (Technology, Education, And Copyright Harmonization Act) modified U.S. Copyright law as it pertains to the use of copyrighted works in digital distance education. 

When all of its requirements are met, the TEACH Act permits the use of copyrighted materials without having to obtain prior permission from the copyright owner.

TEACH Act Requirements for the Institution and Information Technology Department 

  1. The institution must be an accredited nonprofit educational institution or government body.
    •  Canisius College meets both of these requirements.
  1. The institution must have a copyright policy in place and inform faculty, staff, and students about the policy.
    •  The Canisius Copyright Policy can be viewed here.
  1. The institution must take steps to ensure that copyrighted materials are made available only to students officially enrolled in the course.
    •  This is accomplished through the synchronization of the D2L Course Rosters with the college's Banner Student Information System. Only those students who are officially enrolled in a course will have access to the course content within D2L.
  1. The institution must provide notice to students that materials used in connection with the course may be subject to copyright protection.
    •  All courses generated in the D2L Learning Management System at Canisius College include the following Copyright Statement:
      Copyright Statement
  2. Transmission must be made solely for and limited to students officially enrolled in the course.
  3. Reasonable efforts must be made to prevent students from distributing the material after viewing it.
  4. Technological protections must be implemented to prevent students from retaining and further distributing the course materials; e.g., video streaming. 

TEACH Act Requirements for Instructors

  1. The performance or display of materials must be: under the control or actual supervision of an instructor, an integral part of the class session and analogous to what takes place in a face-to-face classroom.
  2. The performance or display must be directly related and of material assistance to the teaching content.
  3. Students must be informed that materials used in connection with the course may be subject to copyright protection.
  4. The instructor must use a lawfully made and acquired copy.
  5. Use is limited to performances and displays. TEACH does not apply to materials that are for students' independent use and retention such as textbooks, coursepacks, or readings.
  6. Analog works can be converted into digital works if no digital version is already available.

Note: The TEACH Act and Fair Use operate independently of each other. You may encounter situations in which TEACH does not apply to a specific resource; however the work might be useable under the provisions of Fair Use.

Resources to Guide You

  • "The TEACH Act Basic Checklist" (printable PDF file) developed by Peggy Hoon at NC State University and currently hosted at Colorado State University.
  • "The TEACH Act and some Frequently Asked Questions" prepared by renowned copyright expert Dr. Kenneth Crews (who established the Copyright Management Center at IUPUI and is currently the director of the Copyright Advisory Office at Columbia University).
  • The American Library Association (ALA) "TEACH Act Best Practices using Blackboard" provides an excellent interpretation of how the law applies when using a learning management system (like D2L).
  • "TEACH Act Toolkit" Developed by Peggy Hoon (an attorney and well-regarded copyright specialist) this toolkit was originally housed at NC State University but has found a new home at the University of North Carolina - Charlotte.

Fair Use is simply a set of exemptions to the Copyright Act that educators frequently use but unfortunately, the difference between infringement and fair use is often impossible to define. Fair use is intended to protect spontaneous use.

  • The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
  • The nature of the copyrighted work
  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  • The effect of the use upon the potential market for, or value of, the copyrighted work

    "The distinction between "fair use" and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission."


    "The safest course is always to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission."

Face-to-Face Classroom Exemption1
Instructors and students at an accredited nonprofit educational institution in the United States may —in compliance with certain stipulations— use, display, and/or perform in a classroom environment, any copyright-protected material or work without seeking the copyright holder permission normally required under U.S. copyright law. This section explains these stipulations and provides a general description of the most common types of materials covered by the face-to-face classroom exception under Section 110(1)  of U.S. copyright law. Please click on the following links to learn more about what is permitted:

Face-to-Face Classroom Stipulations
The stipulations governing the display and performance of copyright-protected material in the classroom are few, but important.

  • The copyright protected materials must be legally obtained.
  • The intent and purpose of their in-class use must be strictly educational.
  • Distribution must be in a location designated primarily for educational purposes.
  • Both teaching and learning must be occurring simultaneously.

As with Distance Education, it is the individual responsibility of every instructor at Canisius College, in compliance with federal law, to make good faith determinations regarding copyright-protected materials used in class and be able to argue credibly in support of those determinations.

Displays and performances falling outside the qualifying stipulations above, may very well fall within the Fair Use guidelines however, each should be carefully scrutinized for compliance before proceeding. (See Fair Use)

Most Common Materials Covered
Under the face-to-face classroom exemption, all types of the following copyright-protected materials may be displayed and/or performed in the normal classroom environment. The stipulation being that the intent is for educational (not entertainment) purposes.

  • Printed Materials
    Book chapters as well as newspaper, magazine and academic journal articles may, in most every instance be copied and handed out in class, the exception being consumables. In other words, such things as copies of whole textbooks (handed out chapter-by-chapter in successive classroom sessions), standardized workbooks and/or test materials, etc., intended for commercial distribution and individual purchase, may not under any circumstances be copied and given to students as a hand-out. 
  • Musical Reproductions
    Audio recordings of musical performances may be played in class in most every instance. An exception would be playing background "elevator" music in a classroom. Such use does not have a teaching and/or learning component and would therefore infringe upon the rights of the copyright holder. 
  • Still Images
    Visual images or "stills" as they are commonly referred to, including photos, graphs, charts, diagrams, maps, slideshows, PowerPoints, etc. may be shown in the classroom in most every instance. 
  • Audiovisual Materials
    Segments of TV shows, documentary films and movies, etc. —illustrative of or related to course content— are allowed in most every instance.

References:

Adapted with permission from Colorado State University Institute for Learning and Teaching (TILT). Retrieved from http://teaching.colostate.edu/guides/copyright/exemption_classroom.cfm

How do I ask for permission?
If your desired usage does not qualify under any of the Limitations & Exemptions, then you will need to ask for (and receive) permission from the copyright owner in order to use it legally. For more details, click 
Asking Permission

When in doubt, get permission or provide links and citations, not copies!

Please refer to the sections on Classroom and Online Education first to determine if you need to ask permission.

When the limitations & exemptions do not apply
If your desired use doesn't seem to be permitted under any of the limitations & exemptions -- or, if you are in doubt -- it is best to seek permission from the copyright holder. This is especially true when you are planning to digitize a work in order to deliver it from a website or learning management system like D2L. 

When asking for permission, you will need to write a letter to the copyright holder (often a Permissions Director or Editor). You can probably send your request through e-mail but, if not, a letter via the postal service or fax will work just as well. Be sure to get permission in writing. 

In your letter, be specific and spell-out exactly what you are asking for, including details like how many students will be in the class and the dates the material will be available to the students. (If you are delivering the material to your students using D2L, be sure to make the content inaccessible once that portion of the course is over.)

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