- 1 General Overview of Copyright Law
- 1.1 When does copyright law first protect a work?
- 1.2 What are examples of work protected by copyright?
- 1.3 Is there anything not protected by copyright laws?
- 1.4 What happens if I violate copyright laws?
- 1.5 How have copyright laws traditionally protected the use of third-party copyrighted work?
- 1.6 What do “public domain” and “fair use” mean?
- 1.7 How much of a copyrighted _________ (film on DVD or VHS; video of television program, commercial, or news; CD or audiotape of musician or band; slide or photograph of artwork; images from books, i.e., photographs, diagrams, lithographs, etc.) can I digitize and use? How long may I use it?
- 1.8 When, where, and how should I seek copyright permission?
General Overview of Copyright Law
When does copyright law first protect a work?
The moment a work is recorded or fixed in a tangible medium, it becomes protected. When the words of a novel are typed or the notes of a concerto are scored, those works become copyrighted. This means that faculty will not lose rights to their own class notes or to any of their original materials.
What are examples of work protected by copyright?
Copyright laws state that the following are examples of protected works:
- Literary works
- Musical works, including any accompanying words or libretto
- Dramatic works, including any accompanying music
- Pantomimes and choreographic works
- Pictorial, graphic, and sculptural works
- Motion pictures and audiovisual works
- Sound recordings
- Architectural works
Is there anything not protected by copyright laws?
Copyright does not protect procedures and processes, unexpressed ideas, methods of operation, concepts, principles, or discoveries which refer to historical and scientific facts.
What happens if I violate copyright laws?
First, it is important to understand that if any information copied and given to students violates copyright laws, then the instructor of the class is directly liable for the infringement and could face a lawsuit.
In his book Copyright Law on Campus, Mark Lindsey poses the following scenario: A copy center’s employees make copies of a textbook as part of a course pack for a class, as per an order delivered by a professor’s teaching assistant. Prior permission has not been acquired before the copying, and the textbook’s publisher discovers the illegal copying.
So who is at fault? In the eyes of the legal system, the primary target in a lawsuit is the professor, followed by the teaching assistant and the copy center employees. This is called contributory infringement, as the professor, teaching assistant, and copy center employees knew about the infringement and chose to participate in the copying and distribution of the material anyway.
But the ripple effect of a copyright infringement lawsuit often reaches even further. People who were unaware of the offense, such as the copy center’s owner and the university that employs the professor, could be held liable as well. This is known as vicarious infringement.
As was previously stated, the most important factor in dealing with copyright law and copyright infringement is often the material’s value in the marketplace. In a lawsuit, the copyright holder may be awarded actual or statutory damages, to be paid by the defendant(s) – in this case, the professor, teaching assistants, and copy center employees – or the employers of the defendant(s) – the University and the copy center owner.
Actual damages usually refer to lost profits. But the copyright holder may elect to recover statutory damages – from $750 to $30,000 for each incident of infringement. If the copyright holder can prove that the infringement was committed “willfully,” the court may order the defendant to pay up to $150,000 in addition to the statutory damages.
Even if the infringing parties prove that they were not aware that their acts were in violation of copyright laws, they can still be ordered to pay no less than $200 in statutory damages for each incident of infringement. Copyright infringement could be quite costly for all parties involved and is best avoided by acquiring proper permission. Faculty, staff, and students can (and do) get sued for copyright infringement. It’s better to be safe than sorry – get permission.
How have copyright laws traditionally protected the use of third-party copyrighted work?
Traditionally, the use of a third-party copyrighted work in education was carried out in one of three ways:
- By obtaining permission from the rights holder
- By reliance on the “fair use” provisions of the Copyright Act (17 U.S.C. § 107)
- By use in class under the performance or display exemptions which exempts face-to-face classroom showings from public performance restrictions (17 U.S.C. § 110(2))
What do “public domain” and “fair use” mean?
“Public domain” refers to works that are available for unrestricted copying by the general public without prior permission. Material that resides in the public domain includes works whose copyrights have expired; works that were created too early to have copyright protection; works by the federal government; and works donated to the public by authors or artists.
Copyright laws apply to material created on or after January 1, 1978. Copyright terms last the duration of the life of the work’s creator plus 70 years, after which they become public domain and do not require permission for use. Anything published prior to 1923 is public domain and is free to be duplicated by anyone at any time. Works published prior to 1978 without a copyright notice are also in the public domain. While materials published by the United States federal government are considered public domain, works created by state and local governments are not. For a comprehensive list of copyright terms for the United States in an easy-to-understand chart, please visit “Copyright Term and Public Domain in the United States” at Cornell University’s Web site. http://www.copyright.cornell.edu/training/Hirtle_Public_Domain.htm
“Fair use” allows a person to copy limited amounts of copyrighted material without requiring prior permission. Four factors must be evaluated to determine whether use is “fair” or not:
- The purpose and character of the use (most importantly whether it is for commercial gain or for nonprofit educational purposes)
- The nature of the copyrighted work (how creative or non-creative is the work)
- The amount and substantiality of the portion used in relation to the work as a whole
- The effect of the use upon the potential market for or value of the copyrighted work
Fair use is complicated, to say the least. There are no specific rules that strictly define how much of a work is an acceptable amount to use. In regards to classroom settings, the fourth factor – effect on the potential market – is considered most important in determining fair use. If there is potential for a copy to endanger or undermine the market value of the original, this factor weighs against fair use.
When in doubt, seek permission. The following checklist is a great resource to help you decide whether you need to seek permission: http://www.copyright.iupui.edu/checklist.htm. Stanford University’s Web site on fair use is also an excellent resource: http://fairuse.stanford.edu.
How much of a copyrighted _________ (film on DVD or VHS; video of television program, commercial, or news; CD or audiotape of musician or band; slide or photograph of artwork; images from books, i.e., photographs, diagrams, lithographs, etc.) can I digitize and use? How long may I use it?
This goes back to the fair use conundrum: there is no numerical amount that has been deemed acceptable, and no amount that has been deemed too much. It is safe to say that copying an entire work, or copying the “heart” of the work likely weighs against fair use. If one factor weighs against fair use, then the other three factors listed above should weigh in favor of it to legitimize the use of the material.
If use of the work falls within the performance and display exemption, then there is no limit on the use of the material in a traditional face-to-face teaching activity as long as the work being displayed or performed is a legal copy, such as a DVD purchased at a store.
If the material is being used for on-line instruction the rules are a bit more complex. You may transmit video or audio of all of a non-dramatic literary work, such as a poetry or short story reading. You may also transmit a complete recording or video of a non-dramatic musical work. For all dramatic literary and musical performances (including opera, music videos, and musicals) you are limited to transmitting reasonable and limited portions. To determine what is a reasonable portion, you will need to refer back to the rules for fair use.
When, where, and how should I seek copyright permission?
Unless you encounter a work that is clearly a part of the public domain, or find a work with a conspicuous statement by its creator stating that the work is free for public copying, or the use of the work falls under the TEACH Act exemption, copyright permission should be sought.
There are specific places to look for obtaining copyright permission. The Copyright Management Center (CMC) of Indiana and Purdue Universities has a comprehensive list of places to check to secure permission. You can visit the Web site at http://www.copyright.iupui.edu/permhome.htm.
It is helpful to have the following information prior to seeking permission, most of which may be found on a printed work’s copyright notice page: title, author, date or edition, portion of the work you wish to use, and the ISBN, ISSN, or LCCN number. Another requirement is the use of a mandatory credit line, which cites the author and the original copyright date, and includes the word “copyright” or the © symbol. Permission is typically given within 24 hours.