What is Copyright?
Copyright is a form of legal protection for authors of original works, including literary, dramatic, musical, artistic, and other intellectual products. Publication is not essential for copyright protection, nor is the well known symbol of the "encircled c" (©). Copyright provides these creators with a set of limited exclusive rights. The law balances the private interests of copyright owners with the public interest and is intended, in the words of the Constitution, "to promote the progress of science and useful arts, by securing for a limited time to authors and inventors the exclusive right to their respective writings and discoveries."
U.S. copyright law grants copyright owners the exclusive rights to:
- reproduce a work;
- prepare derivative works based on the original;
- distribute copies to the public;
- perform the work publicly; and
- display the work publicly
The copyright owner may transfer or license one or more of these rights to others for a specific period of time or in perpetuity. In the case of works created by employees during the course of and within the scope of their employment, the employer is considered to be the author. U.S. copyright law defines such work as works for hire.
Exceptions and limitations to these exclusive rights are listed in Sections 107 through 122 of the first chapter of the U.S. Copyright Act. These exceptions are integral to the balance of exclusive rights on the one hand and productive, socially-beneficial new uses of works on the other.
Duration of Copyright
A copyright may remain in effect for a long time. Determining the precise term can be complicated and, in the United States, depends on when the work was first created and published.
- As a general rule, a work published before January 1, 1978 is protected for 95 years from the date of first publication, or 120 years from the date of creation, whichever is longer, though there are numerous exceptions.
- A work published after January 1, 1978 is protected for the life of the author plus 70 years.
- Works for hire, anonymous works, and pseudonymous works are protected for the 95-year or 120-year term described above.
- Works published prior to 1923; works whose term of copyright protection have lapsed; or works that were not subject to copyright protection in the first place (e.g. a work of the U.S. Government), are said to be in the public domain. Such a work may be freely copied, distributed, performed, displayed, or otherwise used in ways unrestricted by copyright law.
- For more detailed information about copyright durations, check out the excellent Public Domain chart available on Cornell's copyright website.
- Duration of Copyright: Provisions of the Law Dealing with the Length of Copyright Protection - U.S. Copyright Office, Circular 15a
Exceptions & Limitations
Section 106 in Chapter 1 of the U.S. Copyright Act lists the five exclusive rights copyright owners have regarding their work. However, the next sixteen sections in the law set forth numerous exceptions and limitations to those rights. Five of these exceptions are particularly relevant within an educational setting:
- Section 107 Fair Use - This is probably the most well-known exception, yet it is also the most confusing and controversial. Fair use relies on a four-factor use analysis, and recognizes the public's interest in using copyrighted works both for educational purposes and to create new works.
- Section 108 Library Exception - Working in harmony with exceptions like fair use, the library exception assures that libraries serving the public and scholarly research communities will have access to copyrighted works for their non-commercial activities.
- Section 109 Right of First Sale - This exception makes it possible for anyone to redistribute their purchased copy of a copyrighted work by resale, lending or donation. It is one of the foundations on which libraries stand ready to lend materials in their collections to their user communities.
- Section 110(1) Face-to-Face Instruction - The U.S. Copyright Act allows educators and students to perform or display works in the course of face-to-face teaching activities at non-profit educational institutions, or in classrooms or similar places devoted to instruction. There is no limitation on the types or amounts of a work that can be performed or displayed except that an audiovisual work that is not lawfully made cannot be shown. This section authorizes, for example, displaying a picture, drawing, or photograph; showing an entire movie; acting out or performing a play or opera; and performing musical compositions as well as sound recordings.
- Section 110(2) TEACH Act - The Technology Education and Copyright Harmonization Act is an important revision to Section 110 of the Copyright Act. It ensures that new technology-based education, e.g. distance education using the Internet, may apply the principles and provisions of fair use in their curricula.
If the contemplated use of a copyrighted work does not qualify under the classroom teaching or distance education exceptions, then the more general fair use test is generally applied because that test is much broader and more flexible than all the others.
The individual who is using the work must decide which (if any) exemption is applicable. This should be a conscious decision, rather than a decision by default or assumption. It is the responsibility of all members of the University of Idaho community to understand the exemptions and to make a good faith determination that the use of a copyrighted work is indeed permissible. If none of the exemptions is applicable, then permission should be requested for the use of the work.
- Exceptions for Instructors - ALA's Office for Information Technology Policy
- Section 108 Spinner - Michael Brewer & the ALA's Office for Information Technology Policy
The public domain is generally defined as consisting of works that are either ineligible for copyright protection or works whose term of copyright has expired. No permission is needed to copy or use these works. Public domain works and information represent some of the most critical information that faculty members and students rely upon and they can be quoted extensively. They can also be copied and distributed to classes or digitized and placed on course web pages without permission or paying royalties.
Public Domain Determination Tables
- Copyright Term and the Public Domain in the United States - Cornell
- When Works Pass into the Public Domain - University of North Carolina
- Digital Copyright Slider - ALA's Office for Information Technology Policy
Copyright Registration Records
- Search Copyright Records: Registrations and Documents - U.S. Copyright Office
- Copyright Renewal Records - Rutgers University
- Bound by Law: Tales from the Public Domain - Duke University - A tongue-in-cheek comic which discusses the public domain as it pertains to documentary filmmaking.
- PD Info: Music in the Public Domain - Explains public domain and helps identify public domain songs and music. Also discusses royalty-free music (for presentations, advertising, etc.).
Documents authored by the U.S. government are not copyrightable. Section 105 of the copyright law states that "copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise."
This means that most federal government documents are in the public domain and may be freely quoted, reused, downloaded, and copied. However, other documents, including most foreign government documents, documents produced by states, and most intergovernmental agencies (i.e. the United Nations and the International Monetary Fund), or works created under contract with the U.S government, are not in the public domain.
What is Fair Use?
To create a balance between the interests of those who develop intellectual and creative works and those who benefit from accessing and using said works, copyright law includes exemptions that limit the exclusive rights of copyright holders. One such exemption is fair use, which allows users of copyrighted works to exercise certain rights without seeking permission or paying royalties.
The complexity of the Fair Use Doctrine and its importance in academia make it imperative that every member of the campus instructional community understands how to make judgments concerning fair use. The information and tools that follow are designed to assist your decision-making. When combined with a thoughtful consideration of the legitimate interests of copyright owners, they will help assure good faith applications of fair use at the university.
The Four Factors of Fair Use
The determination of whether the use of a copyrighted work is within fair use depends upon making a reasoned and balanced application of the four fair use factors set forth in Section 107 of the U.S. Copyright Act. These factors are as follows:
- The purpose and character of the use, including whether the copied material will be for non-profit, educational, or commercial use. This factor at first seems reassuring; but unfortunately for educators, several courts have held that the absence of financial gain, in and of itself, is insufficient for a finding of fair use.
- The nature of the copyrighted work, with special consideration given to the distinction between a creative work and an informational work. Photocopies made of a newspaper, for example, are more likely to be considered a fair use than copies made of a musical score or a short story. Likewise, duplication of material originally developed for classroom consumption is less likely to be a fair use than is the duplication of materials prepared for public consumption. For example, a teacher who photocopies a workbook page or a textbook chapter is depriving the copyright owner of profits more directly than if copying a page from the daily newspaper.
- The amount, substantiality, or portion used in relation to the copyrighted work as a whole. This factor requires consideration of 1) the proportion of the larger work that is copied and used, and 2) the significance of the copied portion.
- The effect of the use on the potential market of the copyrighted work. This factor is regarded as the most critical in determining fair use, and it serves as the basic principle from which the other three factors are derived and to which they are related. If the reproduction of a copyrighted work reduces the potential market and sales and, therefore, the potential profits of the copyright owner, that use is unlikely to be found a fair use.
All four factors should be evaluated in each case, and no single factor will determine the outcome. In other words, while fair use is specifically intended to apply to teaching, research, and other activities, an educational purpose alone does not make a use fair.
Keep in mind, too, each unique set of facts regarding a proposed use leads to its own reasoned conclusion. Reasonable individuals may come to different conclusions concerning the same set of facts, but the operative word is "reasonable." If you, as an employee of a non-profit educational institution, have made a rational and reasonable fair use determination, you are less likely to be targeted for an infringement lawsuit because of Section 504(c)(2), the "good faith fair use defense."
Fair Use Analysis Tools
There are a variety of tools available on the web to assist you in analyzing whether a particular use weighs in favor of or against a claim of fair use. These tools draw on language in U.S. copyright law, court decisions, analysis by legal experts, and reports of government bodies. Despite their legal orientation, these tools are very accessible and useful for many purposes.
- Using the Four Factor Fair Use Test (University of Texas at Austin) - This site gives descriptions and examples of uses that weigh in favor of and against fair use and those "in the middle" that can be further beneficial in a fair-use analysis. The four factors are defined individually and in relation to one another.
- Fair Use Analysis Worksheet (Columbia University) - This is a printable worksheet that allows you to select uses that favor and weigh against fair use based on your desired use. It also includes brief descriptions of each factor.
- Fair Use Evaluator (ALA's Office for Information Technology Policy) - This is an interactive, step-by-step guide developed by the ALA to facilitate fair use analyses among educators.
Fair Use Court Cases
In addition to the tools above, you may also find it informative to review court cases where a claim of fair use was affirmed or denied.
- Categories of Key Court Case Summaries on Fair Use (Columbia University) - This site gives brief statements on the impact of each of the four factors in several landmark copyright cases.
- Summaries of Court Cases (Stanford University) - This site provides brief summaries and sorts cases by use going back more than twenty years.
- Fair Use Project (Stanford Law School) - This site follows active court cases regarding fair use, in addition to providing "legal support to a range of projects designed to clarify, and extend, the boundaries of fair use in order to enhance creative freedom."
Fair Use Guidelines
In the attempt to simplify some applications of fair use, certain guidelines have emerged over time. Originally, the U.S. Congress included as part of the legislative history for the Copyright Act of 1976 the most well-known set of guidelines, Guidelines for Classroom Copying in Not-for-Profit Educational Institutions with Respect to Books and Periodicals (cf. FSH 6580, section H), as well as Guidelines for Educational Uses of Music. These guidelines served as a model for subsequent draft guidelines published later in the 1970s and 1980s, such as Guidelines for Off-Air Recordings of Broadcast Programming for Educational Purposes.
Later still, during the 1990s, the Conference on Fair Use (CONFU) was commissioned to address concerns about emerging digital technology. CONFU released draft guidelines on distance education, multimedia, images, electronic reserve services in libraries, and interlibrary loan. However, no consensus agreement has been achieved surrounding CONFU guidelines. They remain in draft form only and are not mandatory.
When considering such guidelines, it is important to remember that they are not the law. These guidelines and others attempt to express minimum standards for fair use. There may still be instances where use which does not fall within stated guidelines may nonetheless be permitted under fair use.
"Orphan works" refer to works that are presumably still copyrighted, but whose owners may be impossible to identify and/or locate. In 2005, the Copyright Office commissioned several studies on the topic in order to better understand the problem and identify legislative solutions. The resulting report and new bill, H.R. 5439 "Orphan Works Act of 2006," recommended changes to U.S. copyright law, including limiting remedies for infringement against users who have made a reasonable, good-faith, documented attempt to locate the copyright owner, and identifying remedies should the copyright owner subsequently re-appear.
Before you decide to use an orphan work, first consider the following alternatives:
Return to fair use
When you originally evaluated fair use, you may have focused on an assumption about the "potential market" for the work in question, and the possible harm to that market caused by your use of the work. If you discover that there is truly no permissions market for this work, you should reevaluate the fourth factor in the fair use analysis. You may find that this factor now weighs in favor of fair use. For more information, see the fair use page.
Replace the materials with alternative works
If you truly reach a dead end, you should ask yourself whether that specific copyrighted work is the only material that will satisfy your goals. In many cases, you can achieve your desired end results either by using works in the public domain, which are available for use with no copyright restrictions whatsoever, or by using materials already licensed by the University of Idaho.
Alter your planned use of the copyrighted works
Your initial plans may have involved scanning, digitizing, and posting copyrighted materials to a website, causing the copyright owner to deny permission for such broad uses. Changing your intentions to something more modest and controllable may either change the copyright holder's mind or increase the likelihood that you are within fair use. Reining in the number of copies, scope of access, or potential for rapid digital duplication and dissemination, may also tip the balance in favor of fair use.
Digital Millennium Copyright Act (DMCA)
The Digital Millennium Copyright Act (DMCA) was passed on October 28, 1998, to address the circumvention of technical locks on copyrighted digital products. When copyrighted materials are in a digital format, such as DVD movies or software, they can be reproduced and manipulated quickly, easily, and in mass quantities. To protect these kinds of works from illegal reproduction, copyright owners often implement digital or technical protection devices such as encryption, passwords, or digital watermarks, but copyright infringers may still be able to circumvent these measures. The DMCA is an attempt to legally enforce digital protection systems.
Provisions of the DMCA
1) No circumventing digital protections
The first provision of the DMCA prohibits defeating the access control measure that protects or limits access to digital information. Defeating the access control measure, or "circumventing a technological measure," means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure without the authority of the copyright owner. Access control measures are found in many digital items such as DVDs, video games, or computer games.
2) No distribution of devices that circumvent digital protections
The second provision bans trafficking in devices that circumvent access controls. In order for an individual to defeat an access control measure he or she can create software that will allow unauthorized access to the copyrighted information. Use of the program violates the first provision above, and the sale or distribution of this computer program is unlawful as well.
3) No selling anti-security tools
The third provision bans trafficking in technology that circumvents technological measures which are aimed at limiting the ability to reproduce a copyrighted work. An example of this kind of technological protection is an encoding technique that prevents a music CD from being played and therefore copied on a computer.
4) Removing copyright management information is forbidden
The fourth provision bans the alteration of copyright management information or providing false copyright management information. Copyright management information is information conveyed in connection with a copyrighted work for the purposes of identifying its origin; such information could include the title, author, name of the copyright owner, terms and conditions for use of the work, and identifying numbers or symbols referring to the above information. This does not include information about the user of a work or a copy of the work. The copyright management information is like serial numbers on commercial products such as computers or cars. This provision prevents a user from altering this information prior to passing the copyrighted materials on to others.
5) Safe harbors from liability for Internet Service Providers (ISPs)
The fifth and last provision of the DMCA is designed to protect service providers, allowing ISPs or online service providers to escape liability for the actions of its users so long as they did not know or have reason to know that their users were violating a copyright holder's rights.