Copyright

Copyright law in the US forms the basis of a complex system of legal protections that afford the producers of intellectual property (IP) control over the who, what, and when of content reproduction and alteration. These laws affect you in how they guide what you, the consumer of another’s copyrighted materials, may modify, copy, and distribute.

Where colleges previously were concerned with the photocopying and distribution of copyrighted print materials, they now contend with a torrent of data and data formats that the Internet and World Wide Web (www) have put at our fingertips. As you are almost always accessing someone else’s IP online, it is best to assume that the material you would like to download, copy, stream, or alter is copyrighted, regardless of whether it is a short video clip, a small image file, or an entire song or movie you find online.

Simply because something is copyrighted does not mean you are barred from using it. Depending on four factors (purpose, effect, nature, and amount of the use,) you as an educator or student may be protected by the 1976 Copyright Act fair use provision, which stipulates that certain limited, non-profit, educational uses of copyrighted materials do not constitute an infringement of copyright.

If, after reviewing this document, you conclude that your use of the proposed copyrighted materials is protected by fair use, please complete the Copyright Checklist and proceed to reproduce or modify the content as you see fit.

The Oxford English Dictionary defines copyright as “the exclusive right given by law for a certain term of years to an author, composer, designer, etc. […], to print, publish, and sell copies of his [ sic] original work.” (2010).

The authority to control U.S. copyright law rests with Congress, which is charged with promoting the progress of science and arts by securing authors’ and inventors’ rights to their creations. Congress, in promoting the general welfare, seeks also to promote the progress of knowledge by incentivizing the creation and distribution of new, original works.

Works that satisfy the litmus test—expression in an original, fixed, and creative form—for whether a work can be copyrighted are automatically considered copyrighted. The Berne Convention Implementation Act of 1983 amended previous copyright law by eliminating the need to register for copyright. This does not mean that verbal utterances that are not recorded in any fashion are copyrighted, but rather any expression that can be fixed to a medium for preservation is afforded copyright protection automatically, as long as it accords with these three principles:

• Originality: the expression must precede other expressions so it may not be a copy of another’s expression. It must be original, a concept that also has gradations of originality. A chronological list of historical dates is not considered original enough while an academic article using those same dates in a creative or intellectual fashion helps to constitute the author’s originality of expression.
• Tangibility: a work must be fixed in a tangible medium. Others must be able to physically access the expression by, for example, watching it on a television, reading it in a book, or hearing it on an mp3 player.
• Minimal Creativity: hard work and sweat alone may not be enough to guarantee copyright protections. To be copyrighted, the work must include content or expression that transcends or exceeds the original. Thankfully, the threshold for minimal creativity is very low.

Certain types of works cannot be copyrighted. Any work residing in the public domain is not afforded copyright protection. The public domain is a protected category of expressions such as facts, ideas, words, and works for which copyright was not secured or has expired (always verify as public domain protection is the exception and not the rule). Works and content in the public domain include:

• Facts: you do not need permission to state that the height of Mount Everest is 8,848 meters, even if you found it on Wikipedia or in an encyclopedia. Copyright law does protect the creative selection and arrangement of facts. But a fact is a fact, you cannot copyright it.
• Ideas: your particular idea of a “girl meets boy” story would be copyrighted if it were expressed in an original and creative way. But you cannot claim copyright protections for the basic idea of a story such as “boy meets girl.”
• Slogans: short phrases, names, and words may be protected by trademark law but they do not qualify for copyright protection.
• Blank Forms: these are intended to record rather than convey, so they do not qualify as expressions.
• Government works: judicial rulings and administrative publications are not a protected category.

Copyright law affords creators significant control over their work, including the right to:

• Make copies of a work.
• Create new works based on previously copyrighted work.
• Perform the protected work.
• Sell or distribute copies of a work.
• Receive benefits and compensations based on exercising the previous rights.

Fortunately for libraries, colleges, instructors, and students, there are exemptions to copyright law that limit the rights of the copyright holder. These exemptions are typically grouped together under the Fair Use Doctrine, which, while it may be a formal, written declaration of rights, is not a black and white rule that makes it clear when a use is protected by fair use. Deciding to forgo the permission to use copyrighted material in accordance with fair use is often a balancing act involving four factors:

• Purpose: nonprofit educational uses are more likely to fall under fair use than commercial uses.
• Nature: published, factual or non-fiction works are more likely to qualify for fair use than unpublished and/or highly creative work such as art, fiction, and films.
• Amount: fair use is more likely in effect if the amount in question is small in quantity and not crucial or central to an entire work.
• Effect: the lesser the effect on the potential market your use of copyrighted material has, the more likely it is to be covered under fair use. That is, if you use copyrighted material repeatedly, if you make it accessible to the whole world over the web, or if you make numerous copies, you may have diminished the creator’s ability to exercise the right to claim financial compensation for the use of copyrighted work. 

We have a checklist for fair use that helps put your proposed use in the context of fair use. The checklist can be found here.

Fair use favors educational over commercial use, but just because a use is for classroom purposes does not constitute fair use. Once you have verified that the purpose, nature, and effect of your proposed use qualify as fair use, you need to verify that the amount in question is fair use. This is where most questions about copyright on a college campus come into play. You may make copies of the following works according to the rules as long as the purpose, nature, and effect of your use likewise qualify as fair use (taken from US Report House of Representatives 1997 Report 94-1476, Section on Brevity):

• An article from a journal, newspaper, or database.
• A book chapter or excerpts from a book constituting up to one chapter.
• A poem,  short story,  essay,  illustration, and other works: 
  Poetry: (a) A complete poem if less than 250 words and if printed on not more than two pages or, (b) from a longer poem, an excerpt of not more than 250 words.
  • Prose: (a) Either a complete article, story or essay of fewer than 2,500 words, or (b) an excerpt from any prose work of not more than 1,000 words or 10% of the work, whichever is less, but in any event a minimum of 500 words.
  • Illustration: One chart, graph, diagram, drawing, cartoon or picture per book or per periodical issue.
  • Special' works: Certain work in poetry, prose or in 'poetic prose' which often combine language with illustrations and which are intended sometimes for children and at other times for a more general audience fall short of 2,500 words in their entirety. Paragraph 'ii' above notwithstanding such 'special works' may not be reproduced in their entirety; however, an excerpt comprising not more than two of the published pages of such special work and containing not more than 10% of the words found in the text thereof, may be reproduced.

But consult with Other fair use considerations (below) for questions of spontaneity and cumulative effect.

So the amount of copyrighted material you have proposed to copy is minimal and accords with the rules and guidelines above. What might other considerations mitigate fair use?

• Spontaneity: “the inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission” is the government’s way of saying that:
  • Requesting permission is preferred but not always necessary, and;
  • Even if your use is fair use, you may need to request permission in the future if you intend to use it again (Report 94-1476). So your use is not fair use if you copy from semester to semester as repeated use erodes your claim to a minimal or negligible effect on the copyright holder’s rights. By extension, copying the same material for other courses or for other institutions would not be fair use.
• Cumulative Effect: “not more than one short poem, article, story, essay or two excerpts may be copied from the same author, nor more than three from the same collective work or periodical volume during one class term. There shall not be more than nine instances of such multiple copying for one course during one class term.” That is, accumulated uses of one particular author may constitute copyright infringement despite any individual qualification as fair use since the aggregate use violates the amount qualification.

• When you use the materials repeatedly or in a cumulative way that amounts to more than any individual use.
• When your proposed use requires copying or distributing more than 2500 words of a work or the entirety of a work.
• When your proposed use is not for educational purposes.

Instructors are permitted to use film and video in an educational setting as long as the following conditions are met: 

• The video or film must be screened as part of an instructional program.
• Only students, instructors, or guest lecturers may show videos or films and then only to students enrolled in the class and/or other educators.
• The video or film must be shown in either a classroom or other campus location devoted to instruction.
• The video or film must be shown in a face-to-face setting where instructors and students are in the same general area.
• The video to be shown must be a legitimate copy that displays the copyright notice.
• Videos or films may not be used for entertainment or recreational purposes, regardless of whether or not admission is charged for a viewing.

• Faculty, staff, and students are welcome to check out and view videos and films owned by Northwestern College. These materials may be viewed at home, in a dorm lounge, or a library study room, provided no more than a few friends or family members are present.
• Public viewings of videos or films constitute public performance and are not permitted unless permission from the copyright owner is secured in advance. Public Performance Rights (PPR) are needed to avoid a copyright infringement. Note that the library staff purchases DVDs with PPR whenever possible or affordable and is glad to assist any member of the campus community by contacting the appropriate organization to secure rights for a screening. Permission is often expensive and any fees are to be paid by those organizing the screening.
  • We currently have over 100 PPR DVDs available for checkout, and all videos with PPR have a special sticker marked PPR on the outside spine of the plastic DVD case. Each DVD with PPR includes notes about what specific rights are included with that particular title.

The TEACH Act of 2002 extends the fair use protections to distance education to allow educators to stream video content in online courses, as long as the following provisions are met. The proposed use must be:

• An integral part of a single, typical class session.
• Part of a systematic, mediated instruction activity.
• At the direction of or under the actual supervision of the instructor.

In addition, the following conditions and guidelines apply:

• Instructors should only use a reasonable portion of a film or video (no more than 20%) for dramatic works like feature films.
• Instructors may use an entire work for non-dramatic musical works (e.g. simple, unadorned, or non-orchestrated playing and singing of songs).
• All works to be digitized and streamed must have been lawfully acquired.
• Access to the video or film must be restricted by a password to only those formally enrolled in the course.
• Instructors should inform students when they are watching a copyrighted work and should warn students against copying and/or distributing it.
• Access to the video or film should be terminated at the end of the lesson or at the close of the term.
• Instructors and other staff may not copy DVDs and distribute them to students, either for free or for a fee. In most cases, this is a flagrant violation of the 1998 Digital Millennium Copyright Act and is strictly prohibited.
• Before having a copyrighted analog work (e.g. VHS) digitized to a computer format, ask the library or AV staff whether a digital version is available for purchase.

The TEACH Act is not intended to cover videos and films an instructor wants students to view outside of class or on their own time.

Copying videos or films without the expressed permission of the copyright holder is illegal. Works may be copied to a different format only by libraries in order to replace a lost or damaged copy when a licensed copy in the desired medium cannot be obtained at a fair price. Colleges and universities may digitize analog video and produce digital copies of works in order to make authorized displays and performances as long as 1) such copies are retained only by the institution and used only for the activities noted above, and; 2) in digitizing analog works, there must be no digital version of the work already available for purchase/copying. If these extensions prove restricting for a proposed use, the fair use exemption still permits instructors to make copies, derivative works, and to display and/or perform works publicly as long as the proposed use qualifies as fair use.

Providing the URL to a copy of a film or video does not appear to constitute a copyright violation. When a link is listed or a video embedded into an online Blackboard course, the video and any copyrighted content that appears in the embedded link still reside on local or Blackboard servers. This type of use does not qualify as a direct infringement but it may be an instance of contributory infringement. If you are aware that you are linking to an infringing video or film, or that any reasonable person would know that the video or film constitutes an infringement, and your linking contributes materially to the infringement, then it is possible that you could be held liable for infringement as your actions may have helped others to violate copyright.

• The fair use provision covers faculty members and students, who are permitted to use portions of copyrighted materials in multimedia projects for a specific course.
• These guidelines apply to educational projects (e.g. PowerPoint presentations, Flash videos posted to the secure course environment of MyNorthwestern, etc.) that involve multimedia in ways that incorporate original materials such as lecture notes with copyrighted media, including graphic and photographic illustrations, music, motion pictures, and text materials.
• Faculty may use such projects in a variety of educational contexts, including: remote instruction via a secure network that does not permit unlawful copying; student self-study; workshops, presentations, and conferences; and professional portfolios used in an academic setting.
• Any resulting document or file that includes copyrighted work must be used only for educational activities. Selling the work or using it in a for-profit setting requires permission.

The fair use exception lasts for two years from the incorporation of the copyrighted content. Permission must be obtained after two years if the project will be used again.

• Motion media: up to 10% of the total or three minutes, whichever is less.
• Text material: up to 10% of the total or 1,000 words, whichever is less. See the restrictions above for more details on using copyrighted text materials.
• Music, lyrics, or music video: up to 10% of the work but no more than 30 seconds of music or lyrics from an individual piece of music.
• Graphic and photographic illustrations: no more than five images from one photographer or artist and no more than 10% of 15 images, whichever is less, from a collection.
• Numerical data sets: up to 10 percent or 2,500 cell entries from a copyrighted tabulation, whichever is less.
• Copying of a multimedia project: no more than two copies may be made of a project.

• If your proposed use is commercial in nature.
• If you intend to make more than two copies of the project.
• If you plan to use the project beyond the scope of these guidelines, which constitute a safe minimum but do not have the force of law.