Copyright Guide | University of Idaho Library


University of Idaho Copyright Policy

The University of Idaho is committed to respecting the rights of copyright holders and complying with copyright law.

This website provides information and educational tools to assist faculty, staff, and students in making informed decisions regarding appropriate uses of copyrighted materials. Please visit the links on the left for specific information.

For further information about copyright, please consult the University of Idaho Faculty Staff Handbook section 5300 and section 6580. You can also contact our Scholarly Communications Librarian, Anne Gaines, or the University's Office of General Counsel at 208-885-6125.


Note: Content in this page was used or adapted with permission from one or more institutions. Please see acknowledgements.

Contents

Copyright Basics

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.

Additional Resources

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.

Additional Resources



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.

Additional Resources



Public Domain

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 Registration Records

Additional Resources



Government Documents

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.




Fair Use

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."


Additional Resources

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

"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.




Additional Resources

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.




Additional Resources


Teaching

Face-to-Face Instruction

"Face-to-face instruction," as the phrase suggests, is when an instructor and students at a non-profit educational institution are together in a single place devoted to instruction, and where the teaching and learning takes place at the same time. In this setting all performances and displays of a work are allowed, provided that all the materials are legally acquired.

If the use occurs outside the classroom, then you can still fall back upon fair use as an option. However, permission will be required if neither fair use nor the educational exception pertains.



Choosing Materials

Many materials are available to use free of charge. If you want to use digital materials such as text, images, audio and film clips, start by looking for sources that don't require special permission. These may include:

  • materials you created yourself, and for which you hold the copyright;
  • materials that are in the public domain, either because the creator has waived their exclusive rights, they were created by the federal government, or because they are sufficiently old and so their rights have now lapsed;
  • materials that have been made available by the creator under a license that allows for the kind of use you want to make (for example, a Creative Commons license);
  • materials that are publicly available on the Internet, to which you may link (as opposed to copying the files and reposting them elsewhere); or
  • content found on one of the UI Libraries' many licensed electronic databases (e.g. EBSCO, JSTOR, HeinOnline, Web of Science, etc.)



Additional Resources

Distance Education / Virtual Instruction

Distance education is when a course is taught either solely online or when components of face-to-face instruction are taught online by means of course management systems like Blackboard. Distance education generally includes materials that must be digitally transmitted to students. This transmission is authorized under the TEACH Act, a 2002 revision of the copyright law. The basic premise behind TEACH is to allow comparable instruction in the online environment as to what takes place in a traditional classroom or face-to-face instruction.

One of the major requirements of this law is that materials can only be digitally transmitted to students who are officially enrolled in the course, and even then the materials can only be retained for short periods of time. There are numerous other requirements for teaching, technology, and course materials that instructors must also meet before taking advantage of the TEACH Act. For a more thorough overview of this exception, see the section devoted to the TEACH Act.



Additional Resources



The TEACH Act

The Technology, Education and Copyright Harmonization (TEACH) Act was signed into law in October 2002. It revises the section of the U.S. Copyright Act that governs the use of copyrighted material for the purpose of education. Specifically the TEACH Act modifies and clarifies the ways in which copyrighted material may be used in distance education by an "accredited non-profit educational institution," without permission of the copyright owner.

The TEACH Act extends earlier allowances granted to educators, but also specifies new requirements for how far educational institutions must go in preventing copyright infringement. Educators are only protected under the TEACH Act if they work for an accredited institution that stands in compliance with the new requirements. In essence, the greater freedoms granted to instructors are balanced with greater responsibility for oversight or management of distance education at the institutional level.

Benefits of the TEACH Act

The TEACH Act allows instructors to do the following things, again, under specified conditions:

  • Performances and displays of nearly all types of copyrighted works;
  • Transmission of digital materials to students at distant education locations;
  • Storage of copyrighted content for brief periods of time, such as that which occurs in the process of transmitting digital content; and
  • Creating digital versions of print or analog works

Requirements of the TEACH Act

In order to take advantage of these benefits, instructors and institutions must meet certain policy requirements specified by the TEACH Act. Reasonable measures to ensure that only enrolled students will have access to materials during the course of instruction must be in place before TEACH exemptions can be made. Below is a list of some of the other primary requirements:

  • The teaching must occur at an accredited, non-profit educational institution.
  • Only lawfully acquired copies may be used.
  • Use is limited to performances and displays. The TEACH Act does not apply to materials that are for students' independent use and retention, such as textbooks or other readings.
  • Use of materials must be within the context of "mediated instructional activities" analogous to the activities of a face-to-face class session.
  • The materials to be used should not include those primarily marketed for the purposes of distance education (e.g. an electronic textbook or a multimedia tutorial).
  • Only those students enrolled in the class should have access to the material.
  • Reasonable efforts must be made to prevent students from retaining and distributing the material after viewing it (this means no printing, saving, downloading, etc.) Also referred to as "downstream controls."
  • If a digital version of the work is already available, then an analog copy cannot be converted for educational use.
  • Students must be informed that the materials they access are protected by copyright.
  • The educational institution must have a policy on the use of copyrighted materials and provide informative resources for faculty advising them on their rights.

While the TEACH Act thus expands the scope of educators' rights to perform and display works for distance education, the new law still contrasts markedly from the "classroom exemption" provision of Section 110(1) that provides an absolute exemption to the exclusive rights of the copyright holder for performances and displays in face-to-face classroom instruction. In a classroom environment an educator may show or perform any work, regardless of format, with no permission required and without paying royalties; under the TEACH Act, the same educator would have to scale back some of those materials to show them to distant students.

The opportunities for applying the TEACH Act may be limited in scope, but keep in mind that you can always fall back on fair use when deciding whether or not to use copyrighted works in distance education classes.

Additional Resources on the TEACH Act

Library Resources


Library Contacts

Library Reserve (Janet Allan, 885-6495)

The University of Idaho Library supports instruction with course reserves and other collection access services. The primary function of these services is to assure that students and teachers will have timely access to course-related library resources.

Licensed Electronic Resources (Jodi Haire, 885-2531)


Interlibrary Loan (Jesse Thomas, 885-6843)

Special Collections

Law Library Contacts

Law Library (Diana Gleason, Head of Public Services, 885-2161)


Law Library Reserve (Carolyn Todd, 885-2157)


Law Interlibrary Loan (Lori Bonner, 885-2159)




Licensed Electronic Resources

Contractual license agreements and copyright law govern the access, use, and reproduction of most of the UI Libraries' electronic databases. Users of library-licensed resources must comply with the terms of these agreements by a) limiting their uses to non-commercial, educational, or personal research purposes; and b) not facilitating unauthorized access by others outside of the University community.

For a more comprehensive list of policies regarding electronic database licenses at the University of Idaho Library, see their Conditions of Use and Licensing Restrictions for Electronic Resources.

Where library databases are concerned, these general rules apply:


YOU MAY:

YOU MAY NOT:

Print, download, or quote limited amounts of information (with proper attribution)

Engage in systematic downloading of licensed content (e.g. download all the articles from an online journal issue or all the chapters from an e-book)

Email an article to another current University faculty, student, or staff member (unless this practice is specifically forbidden by the license)

Email an article to a person who is not a current University faculty, student, or staff (unless this practice is specifically allowed by the license)

Create a link to a journal article on a publisher web site

Post a copy of an article to a University server (e.g. Blackboard, departmental web site)


Media Resources

The basic laws that govern the use of copyrighted materials are consistent regardless of media type. That is to say, the strictures that protect musical works from infringing activities are the same as those that protect books or video recordings or photographic images. And this same overlapping holds true for constitutional exceptions as well, for things like fair use and the face-to-face teaching exemption.

Due to the disparate nature of these different media types, however, and the emergence of new media over the past few decades, numerous guidelines and licensing agencies have sprung up in order to help educators remain in compliance.

Here you will find a collection of resources, licensing contacts, and best-practice guides-all grouped according to media type-which will hopefully answer any questions you might have regarding the use of media materials in the classroom.



Music

The following sites provide some guidance for the use of music in performances, projects, and publications.



Video Recordings & Performance Rights

Copyright owners have the exclusive right to display and perform their works, including the projection of a film or a videotape. However, educators can still show films or videotapes without explicit permission from the copyright owner if the screenings are for educational purposes and are in accordance with Congressional guidelines.

The display or performance of an audiovisual work is permissible, provided the following conditions are met:

  • They must be shown as part of the instructional curriculum;
  • They must be shown either in a classroom or some other location devoted to instruction such as a studio, the library, or an auditorium;
  • They must be shown in a face-to-face setting, where students and faculty are in the same building or general area;
  • They must be shown only to students and/or educators; and
  • It must be a legitimate, legally-produced copy with copyright notices included.


Prohibited Uses on Campus

Displays and performances of audiovisual works are prohibited in non-profit educational institutions when:

  • They are used for entertainment, or for their cultural or intellectual value but unrelated to teaching activities;
  • They are shown in a public performance, to an audience not confined to students, and not related to educational instruction, such as a sporting events, club gatherings, or graduation ceremonies; or
  • They involve an illegally-acquired or illegally-duplicated copy of the work.


Online Teaching (Blackboard)

Section 110 of U.S. Copyright Law allows transmission of some materials to support true distance education, or online instruction that replaces regular classroom instruction (whether live or completed at the student's pace).

The TEACH Act specifies conditions under which educators may perform or display copyrighted works in distance education or online environments, including using only "reasonable and limited portions" of works that do not qualify as non-dramatic literary or musical works. Films and other audiovisual materials typically fall into this category. Thus the ability to perform or display audiovisual works in distance education or online via the TEACH Act may be more limited than in classroom settings.

Section 1201 of U.S. Copyright Law further prohibits the circumvention of encryption or other technological measures applied to copyrighted works, regardless of whether the intended use would be a fair use. However, an exemption was established by the Copyright Office for film studies professors to create compilations or clips of encrypted films, for their use in a classroom setting. This exemption is set to expire on October 27, 2009.


Public Performance

To perform or display a work "publicly" means showing it at a place where it can be viewed by more than one's immediate family or friends, whether or not everyone views it at the same place or at the same time. Private copies of films, whether purchased or rented, do not carry public performance rights. Even films shown for free and for educational purposes usually require you to obtain a Public Performance License if they are screened outside of the context of a specific class.


Obtaining Public Performance Rights (PPR)

The University of Idaho Library owns a number of video recordings which already include Public Performance Rights. Contact Janet Allan for more information.

If your proposed screening does not meet any of the requirements above, you will most likely need to obtain a Public Performance License. To this end, the following vendors may be of assistance:

  • Most feature films are licensed by Swank Motion Pictures, Inc. They can be contacted at 1-800-876-5577.
  • FOX films are licensed through Criterion USA. They can be contacted at 1-800-890-9494. Their website also provides detailed instructions for "renting" films for performance.
  • Motion Picture Licensing Corporation - The MPLC Umbrella License is a facility-based license which allows organizations to publicly perform films. They can be contacted at 1-800-462-8855.
  • Kino International - A common source for licenses relating to world cinema, independent films, classics, and documentaries. They can be contacted at 1-800-562-3330.

Guidelines for Taping Off-Air Broadcast Programming

There are a number of restrictions placed on the use of videotaped copies made from broadcasted television programs. The two most critical limitations are:

  1. Videotaped recordings may be kept for no more than 45 calendar days after the recording date, at which time the tape must be erased.
  2. Videotaped recordings may be shown to students only within the first 10 school days of the 45-day retention period.

Additional restrictions can be found in the Guidelines for Off-Air Recordings of Broadcast Programming for Educational Purposes, and are also listed in the Faculty-Staff Handbook (FSH 6580, section I).


Additional Resources



Images

The following resources provide some guidance for the use of images in projects and publications.


Additional Resources



Software

The University of Idaho negotiates site licenses with software vendors whenever possible for software products that are selected for extensive use. These arrangements provide the University community with efficient access to computer programs that support the curriculum, while at the same time assuring the copyright owner a fair royalty.

Software products that are not licensed to the University may also be used. However, copying is strictly limited except for backup purposes. Whether the software is transferred from the original to a detachable hard-drive or to an archival diskette, the backup copy is not to be used at all so long as the other copy is functional.

To view the University's full policy relating to software use, see the UI Faculty-Staff Handbook, FSH 6580, Section J.


Additional Resources



Multimedia & Copyright

The following sites provide some guidance for the use of multimedia in teaching, projects, and publications.

Securing Permission

If you are seeking to use a copyrighted work, you may need to obtain permission from the copyright owner. The owner may be the original creator of the work or that person's employer. The original author may also have transferred the copyright to a publisher or some other party. In some instances, you may contact the owner directly. In other cases, you can secure permission on behalf of the owner by contacting a collective licensing agency.

Oftentimes the copyright owner will require a fee or impose other conditions. You have to decide if the cost and conditions are acceptable, and you should feel free to negotiate. Remember, permission is not necessary if (1) your use is within fair use or another copyright exemption pertains; (2) the work is not protected by copyright at all; or (3) your use is within the terms of a license agreement, including, for example, a Creative Commons license from the author.



Identifying the Copyright Owner

The first source for identifying the copyright owner is the copyright notice on the work itself, which will usually look something like this: Copyright © 2005, XYZ Corporation. Another important source is the registration of the claim of copyright with the U.S. Copyright Office. For information about searching registration records, see How to Investigate the Copyright Status of a Work (U.S. Copyright Office).

For print publications, generally the publisher is the owner of the copyright and can grant permission for your use. Many publishers also have online copyright permission pages that can be used for this purpose. If the publisher is not the copyright owner, they can probably assist you in finding the actual copyright owner.

Depending on the work, permission may be required from more than one source. For example, if you wish to use a photo from a journal, the publisher may own the copyright for the photo but if the subject of the photo is a well known person, you may also need to obtain permission from the individual in the photo and the photographer. Likewise, a publisher of a textbook may own the copyright for the textual material, but not the photographs or charts. This can be very confusing at times. Hopefully the copyright notice will contain all the pertinent copyright information, but don't hesitate to contact the publisher if you have any questions.


Additional Resources



Collective Licensing Agencies

Collective licensing agencies are organizations meant to centralize copyright ownership information for their respective industries. These centers can expedite your search, either by putting you directly in touch with a copyright owner or by negotiating the copyright usage itself. However, most of these agencies do charge a fee for their services.


Works in Print

  • Copyright Clearance Center - The CCC should be your starting point if you are looking to get permission for a text-based work. The CCC can grant permission for thousands of works, many instantly online.
  • The Authors Registry - A collaboration of literary rights organizations: The Authors Guild, The American Society of Journalists & Authors, The Dramatists Guild, and The Association of Authors' Representatives.
  • Author's Licensing and Collecting Society - The largest licensing agency in the United Kingdom, the ALCS represents writers of all genres, from text-book authors to poets and radio dramatists.

Films and other Audio-Visual Works

Start your search with the Internet Movie Database to identify who owns the film (listed under the "Company Credits"). Some of the licensing agencies are:

Musical Works: Performance Rights

Performance rights are all uses associated with public performance of copyrighted music, everything from concert performances to playing an artist's music on overhead speakers in a retail space. Together, these three licensing agencies encompass the vast majority of published American music.

  • ASCAP (American Society of Composers, Authors & Publishers) - Membership association of composers, songwriters, lyricists and musical publishers.
  • BMI (Broadcast Music, Inc.) - Performance works and media licensing center
  • SESAC (Society of European Stage Authors and Composers) - One of the fastest growing performance rights organizations, with offices in Nashville, New York, Los Angeles, London and Atlanta.

Images

ARS and VAGA are two of the pre-eminent artists' rights organizations which license reproduction rights to users of visual art on behalf of its members.

  • ARS (Artists Rights Society)
  • VAGA (Visual Artists and Galleries Association)

Dramatic Works

Dramatic works may not be publicly performed without permission, either in their entirety or in smaller portions, such as excerpts, acts, scenes, monologues, etc. The rights that are needed to publicly perform a dramatic work which combines a musical work together with staging, dialogue, costuming, special lighting, choreography, etc., are referred to as "grand performing rights." Grand performing rights are typically obtained from the creator of the work or their publisher.

The rights to publicly perform a single piece of music from a musical play in a non-dramatic fashion are often referred to as "small performing rights." Small performing rights are typically obtained from organizations such as ASCAP, BMI, and SESAC. To qualify as a non-dramatic performance, a piece of music taken from a musical play may not make use of any form of staging, choreography, etc., even if the use of any of these elements is not intended to represent any part of the original musical play. For example, creating your own dance steps to a piece of music from a musical play disqualifies the use as a non-dramatic use and permission for the grand performing rights must be sought.

Software

Permission must be secured to reproduce, distribute, perform, display, or make derivative works of software. Nearly all software publishers may be contacted through their homepage on the Internet.

  • CNET - Provides comprehensive reviews of software and also acts as a hub for the dissemination of free software through its download section.

Syndicated Comics, Cartoons, and Editorials



Requesting Permission

If your proposed use does not fit within the criteria for one of the exemptions discussed in the Exceptions & Limitations section, or if you do not have a license to use the work for your intended purpose, you will need to obtain permission from the owner of the work prior to using it.

Requests for permission should be in writing and include the following information:

  • Title of the work
  • Name of author (artist, editor, etc.)
  • ISBN
  • Description of the material to be used (page numbers, frames, length, portion, etc.)
  • Nature of your intended use (course pack, Blackboard, publication, performance, etc.)
  • If part of a publication, describe the nature of your publication (author, title, publisher, publication date)

As applicable:

  • Number of copies to be made or expected audience for electronic access
  • Number of instances for which permission is sought (every semester, once per year, etc.)
  • Number of performances to be made
  • Description of how the work will be displayed

It is recommended that you include a stamped, self-addressed envelope to facilitate the owner's reply, and provide your complete contact information should there be any questions. A sample letter can be found below, plus several other sample letters have also been included as part of the UI Faculty-Staff Handbook (FSH 6580, Section L).



Sample Permission Letter

[Date]

[Letterhead or Return address]

[Rights holder name and address]

Re: [Name of work for which permission is requested]

Dear [Sir or Madam] [Permissions Editor] [Personal name, if known]:

I am on the faculty at the University of Idaho where I teach in the [your department] department. I am in the process of creating [describe your project]. In my research, I have found the following work: [name of work under copyright]. I believe that you hold the copyright to this work and that it would have important educational value for my students. I would like your permission to include the following material from [name of work under copyright] in [name of your project]:

[Citation with source information]

[Describe how the project and material will be used]. It will be accessible to [describe users].

If you do not control the copyright on all of the above mentioned material, I would appreciate any contact information you can give me regarding the proper rights holder(s), including current address(es). Otherwise, your permission confirms that you hold the right to grant the permission requested here.

I would greatly appreciate your consent to my request. If you require any additional information, please do not hesitate to contact me. I can be reached at:

[Your contact information]

A duplicate copy of this request has been provided for your records. If you agree with the terms as described above, please sign the release form below and send one copy with the self-addressed return envelope I have provided.

Sincerely,

[Signature]

[Typed name]



Plagiarism

Copyright infringement and plagiarism are two separate issues. Copyright is a federal law that protects original works from being copied and distributed without the author's permission, except in the case of exceptions. Plagiarism is passing off someone else's work as one's own, or with a lack of proper attribution. There is no federal or state plagiarism law but there can certainly be severe repercussions for plagiarizing.

Copyright infringement example: Incorporating an entire essay by John Updike into a published anthology without his permission. The essay should be properly attributed to Mr. Updike.

Plagiarism example: Using a line or even an entire passage by John Updike in a paper and not attributing it to the author or citing the source. This makes it seem like the passage in question is the creation of the person writing the paper and not Mr. Updike.

For more information on plagiarism, see the plagiarism policies available at the University of Idaho's English Department website.


Research

Authors' Rights

Authors retain the copyright to their work until such time as they assign it to someone else. They are granted the exclusive rights of reproduction, distribution, public performance, public display, and modification of the original work.

Many authors sign agreements with publishers without realizing exactly what rights they are surrendering. Some faculty members, for instance, have discovered that they cannot even place copies of their own published articles on their website without first securing permission from the publisher. As a result, more and more faculty members are now signing publishing contracts which permit them to retain certain rights.

It is up to you to decide whether you will assign all of your rights, some of them, or none of them to a publisher. You might want to consider retaining some of your rights if you plan on using your work in any of the following ways:

  • Copying your articles for distribution in a class;
  • Posting your work on your website;
  • Distributing copies to your colleagues;
  • Reusing portions of the work or all of it in future publications; or
  • Adding your research to your institutional repository.

Keep in mind, the decision to assign copyright is serious and can have significant implications for the future availability of your work.

An employee's authorship rights to works created in the scope and course of employment are dependent on the policies of the employer. Under the University of Idaho's copyright policy, employees retain their rights in copyright to works they create, with some exceptions. For more information see FSH 5300.


Additional Resources

Who Owns the Rights to Your Scholarship? - University of Minnesota

Managing Your Rights

Traditional publication agreements typically require a transfer of copyright from the author to the publisher. These arrangements, which are variously known as "Copyright Transfer Agreements" or "Publication Agreements," transfer all of your rights to the publisher as a single bundle. And yet it doesn't have to be an all-or-nothing proposition. Authors can negotiate with their publishers about transferring only those rights needed for publication, while retaining the rights which govern non-commercial uses of their work. This process is referred to as "unbundling" your rights.

Managing your copyright effectively will benefit you now and in the future. In the meantime, here are several options that you should consider before making any copyright decisions.

Research which publishers have the best agreements for your needs

The copyright policies of many journals and publishers can be found on Sherpa's RoMEO website. Investigate which policies match your goals, both as a researcher and as a teacher.

Negotiate the terms of your agreement

There are many publishers who are willing to negotiate the publishing agreement. Determine what terms of the agreement are amenable to you and which are not and then negotiate for the terms that fit your needs. In the end, only you can make the decision as to whether or not to sign the agreement.

Attach an author's addendum to the publisher agreement

Retain copyright and license specific rights to publisher

Rather than assigning your copyright to the publisher, grant them an exclusive or non-exclusive license. An exclusive license is one in which the copyright holder grants to the publisher sole permission for using the work for a certain period of time. A non-exclusive license is when the copyright holder allows multiple people to use the work. For examples of non-exclusive licenses, check into Creative Commons licenses.



Additional Resources

Reserving Rights of Use in Works Submitted for Publication: Negotiating Publishing Agreements - Kenneth Crews, Columbia University

Open Access

Digital technology is changing the way by which the academic community disseminates scholarship. New Internet based publishing models offer opportunities to increase access and enhance the availability of research results to scholars and the broader general public. Open Access publishing, Institutional Repositories, and a burgeoning list of peer-reviewed online journals are just a few examples of new publishing options available to scholars.

The Association of Research Libraries and the Scholarly Publishing and Academic Resources Coalition (SPARC) have developed Create Change, an educational website that examines new modes of scholarly communication. This site and others like it can help academic authors follow the national conversation about opportunities to enhance scholarly communication in the digital networked environment.



Open Access Publishing

The aim of open access scholarly publishing is to make high quality, peer-reviewed scholarly content available freely on the web. A common misconception about open access as a publishing model is that anyone may post what he or she likes on the Internet. In fact, scholarly open access journals apply rigorous peer review to their content. The "open" refers to the free availability of research to the public, not to the removal of the refereeing process that has long been the basis of scholarly publishing. Open access is in every way compatible with rigorous peer review.

For more information on Open Access Publishing see:

  • Peter Suber's excellent Open Access Overview;
  • A growing directory of open access journals at Directory of Open Access Journals;
  • ArXiv (Cornell) - The most extensive and longest-running open access repository provides open-access to e-prints in Physics, Mathematics, Computer Science, Quantitative Biology and Statistics;
  • A growing directory of open access repositories can be found at the Directory of Open Access Repositories; and
  • Open Courseware Initiative (MIT) - This site hosts freely-available educational materials which are specifically meant to be copied and used by faculty members for non-commercial purposes.



Creative Commons

Another strategy for retaining and assigning your copyright is to publish your work under a Creative Commons license. These licenses allow authors to retain the copyright to their work, and can be used to set the terms and conditions by which others may use the work. Some publishers are satisfied with the rights that authors license to them through Creative Commons and will agree to publish your work under some of the Creative Commons license options.



Additional Resources

Copyright & Digital Scholarship Center (North Carolina State University) - A wealth of information is available on this excellent website. Not only does it explain how open source publishing works, it also provides guidance for people who want to make their works freely available for all to use.

Reversion of Rights

Many times authors early in their careers will transfer their copyrights to publishers in order to have their works published. There are many reasons for doing this, but most often in academe the decision to transfer copyright in exchange for having the work published revolves around promotion and tenure. Congress recognized that there is unequal bargaining power in such a situation and added a section to the U.S. Copyright law which allows authors under certain conditions to reclaim their copyright from the publisher.


Criteria

For transfers of copyright that have been made by authors on or after January 1, 1978:

  • Termination must occur either 35 years from publication or 40 years from the date of assignment of copyright to a publisher.
  • Termination must occur within a 5 year period or the reversion right is forfeited.
  • Termination notice must be served on copyright holder no later than 2 years before time expires and up to 10 years before beginning of 5 year period.

Example: If the work is published in 1978, then the termination window is 2013-2018. The notice must be submitted no later than 2016 and no earlier than 2003.


For transfers of copyright that have been made by authors prior to January 1, 1978:

  • Termination must occur between 56-61 years after copyright is secured.
  • Termination must occur within a 5 year period or the reversion right is forfeited.
  • Termination notice must be served on copyright holder no later than 2 years before time expires and up to 10 years before beginning of 5 year period.

Example: If the copyright is secured in 1944, then the termination window is 2009-2014. The notice must be submitted no later than 2012 and no earlier than 1999.


Process

  1. Review your contract.
  2. Determine the appropriate termination timeline.
  3. Notify publisher/copyright holder.
  4. Record termination with the U.S. Copyright Office. [$95.00 for one title and $25.00 for each additional title]


Additional Resources

To read the actual wording of this law see the U.S. Copyright Law, Section 203(a) and Section 304(c).

Works for Hire

Generally speaking, the person who creates a work is the author, and therefore the copyright owner of that work. However, there is an exception to this principle in Section 110 of the U.S. Copyright Act. The copyright law specifically designates a special category of works called "works made for hire." If a work is made for hire — i.e. it was prepared by an employee within the scope of his or her employment — then the employer, and not the employee, is considered the author. In such cases the employer may be a firm, an organization, or even a university.

More information regarding works for hire, and specifically the University of Idaho's policy thereof, can be found in the following two sections of the UI Faculty-Staff Handbook: FHS 5300 (Copyrights, Protectable Discoveries, and Other Intellectual Property Rights) and FHS 5400 (Employment Agreement Concerning Patents and Copyrights).



Additional Resources

Works Made for Hire Under the 1976 Copyright Act (US Copyright Office, Circular 9)

Theses/Dissertations

When you prepare your thesis or dissertation, you are both author and copyright holder of the original work, as well as a user of other people's copyrighted works.

When you use other people's works or incorporate third-party content into your work, your use must either be authorized under the fair use exception or permission must be sought from the copyright holder.

As an author of a dissertation, and many times of a thesis as well, you will be required to submit your work to ProQuest, a company who collects, organizes and disseminates dissertations from universities across the country. In order for ProQuest to accept your work, you will have to sign an agreement with them. This agreement is a non-exclusive license which authorizes them to use your work as described in the agreement. With a non-exclusive license, you retain the copyright to your work. You do not assign it to them. ProQuest has a document written by a copyright expert from Columbia University, Kenneth D. Crews, that explains copyright in detail and discusses, specifically, "Copyright Decisions and Your Dissertation" (Part III).

For more information on thesis/dissertation requirements at the University of Idaho, contact the UI College of Graduate Studies office at 208-885-6243.



Additional Resources

Changing Scholarly Publishing: A Guide for Graduate Students - University of Tennessee

Sample Permission Letter

Please see our information on securing permission for more information.


[Date]

[Letterhead or Return address]

[Rights holder name and address]

Re: [Name of work for which permission is requested]

Dear [Sir or Madam] [Permissions Editor] [Personal name, if known]:

I am on the faculty at the University of Idaho where I teach in the [your department] department. I am in the process of creating [describe your project]. In my research, I have found the following work: [name of work under copyright]. I believe that you hold the copyright to this work and that it would have important educational value for my students. I would like your permission to include the following material from [name of work under copyright] in [name of your project]:

[Citation with source information]

[Describe how the project and material will be used]. It will be accessible to [describe users].

If you do not control the copyright on all of the above mentioned material, I would appreciate any contact information you can give me regarding the proper rights holder(s), including current address(es). Otherwise, your permission confirms that you hold the right to grant the permission requested here.

I would greatly appreciate your consent to my request. If you require any additional information, please do not hesitate to contact me. I can be reached at:

[Your contact information]

A duplicate copy of this request has been provided for your records. If you agree with the terms as described above, please sign the release form below and send one copy with the self-addressed return envelope I have provided.

Sincerely,

[Signature]

[Typed name]


Frequently Asked Questions

What is a copyright?

A copyright is a form of intellectual property protection, arising from the Constitutional mandate that there must be some sort of limited monopoly for authors and creators in order to further the purpose of promoting the progress of science and the useful arts. Copyright law, therefore, attempts to strike a delicate balance between the interests of the creators and the interests of the public in accessing and using their work.

What can be copyrighted? What cannot?

Copyright protection extends to all original works of authorship, including literary, musical, dramatic, pictorial, graphic, sculptural, sound recordings, and motion pictures and other audiovisual works. It does not extend to general facts and ideas, nor does it protect works produced by federal government employees when the work in question is created within the scope of their normal employment duties.

How do I copyright my work?

Actually, it happens automatically. As soon as your original work is fixed in a tangible medium of expression, it is automatically fully protected by copyright. There are just two requirements: originality and fixation.

How do I register my copyright? How much does it cost?

It costs $45 to register your copyright, which you do by filling out certain forms with the U.S. Copyright Office. The forms with instructions can all be found online.

Does a work have to be published to be copyrighted?

No, unpublished works are fully protected (in some ways, more protected, at least as to first publication rights) by copyright. That would mean, for example, that an old published letter may have long ago entered the public domain, while an unpublished letter of the same vintage might still enjoy copyright protection. However, a provision in the 1976 Copyright Act, provides that, beginning December of 2002, unpublished works will enter the public domain as soon as their creator has been deceased for seventy years.

How long does a copyright last?

According to the Constitution, it is supposed to last a "limited time," but that limited time has grown considerably over the years. As of our last Copyright Term Extension Act in 1998, the term of copyright is now the life of the author plus seventy (70) years. If it an anonymous work or a work that belongs to a company, for example, the term is ninety-five (95) years from publication or one hundred twenty (120) years from creation, whichever is shorter.

What is the public domain?

A work that is in the public domain may be freely used without any copyright issues. This category includes:

  • works with expired or lost copyright;
  • works not copyrightable by nature (i.e. ideas, facts, titles, etc.);
  • works produced by a federal government employees in the course of their job;
  • works clearly donated to the public domain; and
  • works published in the United States prior to 1923.

If a work is out of print, does that mean it's no longer copyrighted?

Unfortunately, no. It just means you may have a harder time finding the copyright holder and perhaps a stronger case for fair use.

Are there any concise, authoritative resources that can help determine when a particular publication might be free of copyright protection?

The U.S. Copyright Office issues an ongoing series of Copyright Circulars that are intended to demystify certain aspects of copyright law. They are frequently revised and therefore an excellent source of current information.

What is fair use?

Fair use refers to an exemption in the Copyright Act that can allow use without permission in some cases. There are four factors that must be considered along the way. You can read more about this in the fair use section.

If I'm copying something for an educational purpose, isn't that fair use?

It depends. Copying a copyrighted work for educational purposes doesn't automatically make that copying fair use. Fair use can only be determined on a case-by-case basis, which takes into account the balance of the four factors.

What if I need to copy more than would be permitted under fair use?

If none of the other copyright exceptions apply, then you will need to secure permission from the copyright owner before you use the material.

My request for permission was denied by the copyright owner. What can I do now?

You must NOT use a work if permission has been refused by the copyright holder. You can attempt to negotiate use in further correspondence or pay a licensing fee, where possible. Above all else, have an alternative to the material or curtail your use to comply with fair use principles.

What if my permission request was denied but now I believe fair use or a specific provision of the copyright law applies? Am I disadvantaged because I already requested permission?

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 provision or the fair use provision and there is no presumption against you for having asked permission.

What if there is no response?

Lack of response does not translate into a passive grant of permission to use. If your proposed use exceeds all provisions of 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.

What if I can't find current contact information for the copyright holder? For example the publisher is out of business or the author is deceased.

Such situations present the problem of a work whose copyright holder cannot be located, despite reasonable efforts. The U.S. Copyright Office has recognized this problem, calling such works orphan works. Educators must make individual decisions concerning their use of such works, including evaluating the risk of liability. Those who proceed with their use should document and preserve their efforts to locate the copyright holder.

Can I copy a printed journal article for my students?

Yes, distribution of multiple copies of an article for classroom use can be a fair use. Allowance of this copying is expressed in the statute, but a fair use analysis is needed to determine whether fair use applies to any particular set of circumstances surrounding a use.

Can I download a digital copy of an article and post it to my Blackboard site?

Fair use applies to the use of digital as well as print versions of copyrighted works. For digital articles, however, you will need to restrict access to only those students enrolled in the course and limit duration of an article's availability. A fair use analysis will also need to be conducted for each article you'd like to post on the web site.

Can I download a PDF of an article that is licensed by the library and post it to my class web site?

Any use of copyrighted works made available by a license agreement through the University of Idaho Library must first comply with the terms of that license. These agreements often do NOT allow copying PDF files and reposting them onto another website or a personal Blackboard page. Frequently, though, you can make articles available through direct durable links.

If an article is freely available online, is it protected by copyright?

Most likely. Copyright protection is automatically assigned to all new works as soon as they are fixed in a tangible medium. Materials presented online may be protected by copyright even if they are freely and openly available and do not display a copyright statement or symbol notice ("©").

Can I copy chapters from a textbook and distribute them to my students?

Generally, this is NOT a fair use. The market for the textbook is directly affected by this activity. Students who would otherwise be expected to purchase the book no longer need to and the publisher is deprived of sales in their primary market.

Can I show a video in my class without permission from the copyright owner?

Yes. Section 110 of U.S. Copyright Law permits showing a lawfully acquired video in the classroom.

What is the TEACH Act?

The TEACH Act is a revision of the U.S. Copyright Act which allows instructors to perform or display copyrighted works in a distance education setting. The Act has many potential advantages for the use of digital technology in teaching. In order to take advantage of these benefits, however, instructors, technologists, and institutions must meet numerous detailed requirements. For more information, see the section devoted to the TEACH Act.


Acknowledgements

The following institutions have graciously permitted the University of Idaho to draw from content and design of their copyright sites:


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