Faculty and Copyright

"The primary objective of copyright is not to reward the labor of authors, but 'to promote the Progress of Science and useful Arts.' To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art."

Justice Sandra Day O'Connor, Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 349 (1991). The full opinion is availabe online at http://www.law.cornell.edu/copyright/cases/499_US_340.htm. The quote above is found on paragraph [19] of this document.

I. Key Concepts Regarding Copyright

A. Definition of copyright

Copyright is a legal protection provided by the laws of the United States (title 17, U.S. Code) to the creators of original literary, artistic, musical, technical, or other intellectual works which have been fixed in a tangible medium of expression. This protection is available to both published and unpublished works and involves five separate areas of rights (section 106):

• The right to reproduce or copy the work
• The right to prepare derivative works
• The right to distribute copies of the work to the public
• In the case of audiovisual or artistic creations, the right to display it publicly
• In the case of musical, dramatic, choreographic works, or pantomimes, the right to perform it publicly.

B. Definition of fair use

In the context of copyright, "fair use" is the set of provisions of the law allowing limited copying, distribution, and display of copyrighted works without the author's permission. Copyright law does not specify the exact limitations of fair use. Actually, the expression "fair use" is not even defined in the law. However, it is generally interpreted to mean the conditions under which the reproduction of copyrighted materials is explicitly permitted for educational purposes such as criticism, comment, teaching, scholarship, and research. While no specific definition is available in the text of the law, there are four interrelated standards or tests which must be applied in each case to evaluate whether the copying or distributing falls within the limited exemption of fair use. These are included in the text of the law provided below.

The four tests or “rules of thumb” that provide the practical framework for the handling of fair use are:

• The purpose and character of the use.
• The nature of the copyrighted work.
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
• The effect of the use on the potential market for, or value of, the copyrighted work.

C. Text of the law regarding "fair use"

 

II. Practical Guidelines for faculty: Fair Use of Copyrighted Works

A. Fair Use Rules of Thumb

B. Four Factor Fair Use Test

C. Checklist for Fair Use

D. Frequently Asked Questions About Copyright and Fair Use

E. Examples of Classroom Copying Guidelines

• Duke University
• Universisty of Central Arkansas
• Ohio Dominican University
• University of Texas System

F. Guidelines for Library Reserve Copying

• University of California, San Francisco
• University of Wisconsin-Milwaukee

G. Music Materials

• Guidelines for Educational Uses of Music
• A Guide for Music Educators

I. Summary and Conclusion

The simplest summary to offer in relation to the information on copyright and fair use is that, depending on several major factors, the portions of copyrighted works that a faculty member needs to use for teaching, may exceed the fair use guidelines. In that case, it is necessary to ask for permission from the copyright owner. The Pacific Union College Library is ready to assist faculty to locate the copyright owners and even to draft a letter to request permission. To decide if permission is necessary, please consult the "Checklist for Fair Use."

III. Copyright Law

A. Text of the Law

• As reproduced by the Copyright Office
• As published by the Cornell University Web site

B. Terms/Duration of copyright

• Copyright Duration Chart at Andrews University
• Duration of Copyright Chart at the University of Rochester

C. Updates

Recent Legislation on Copyright and Intellectual Property

Stanford's List of Regulations, Case Law, Judicial Opinions & Recent Legislation on Copyright

Digital Millennium Copyright Act (DMCA)

• H.R. 2282 Full Document in PDF format
• Official Summary
• Outline,Text,Commentary, Analysis and Online Resources

Technology, Education, and Copyright Harmonization Act (TEACH Act)

• Text of the Law (PDF format)
• The TEACH Act Tool Kit
• TEACH Act Analysis from the University of Texas
• Background, Summary, Review and Analysis by the American Library Association
• "The Meaning and Importance of the TEACH Act" by K. D. Crews
• New Copyright Exemptions for Distance Educators (ERIC Digest)

US Copyright Office Current Legislation Section

D. The ambiguity of the law

Because of the problems resulting from the vagueness and the ambiguity of the Copyright Law, the interpretation of the details are left to the courts. Therefore teachers and educational institutions need to keep current with the recent interpretations of the law as provided by the courts.

III. Violation of Copyright

A. Key point

It is illegal for anyone to violate any of the rights provided by the copyright code to the owner of copyright.

B. Liability

Individuals including teacher in colleges and universities are liable for their own actions. Copyright owners can and have sued and are likely to continue to sue individuals. Even if a legal action motivated by a copyright issue is directed against an institution of higher learning it may not insulate the individual who allegedly has violated the copyright law.

C. Penalties

The penalties for infringement of copyright are severe and may involve up to $150,000 for each separate act of "willful infringement". Ignorance of the law is not an acceptable excuse.

D. Importance of policy and strict adherence to "fair use"

Each institution of higher learning should have a clear policy regarding copyright and "fair use" of copyrighted materials for academic purposes. If an individual inadvertently infringes on some detail of the copyright law, but he or she reasonably believed that the material copied was well within the scope of "fair use," then that person may qualify to invoke the "good faith fair use defense" [17 USC 504(c)(2)]. This would be the case if a faculty member was following institutional policy and well established guidelines regarding the fair use of copyrighted works in academic settings. In contrast, an individual who clearly ignores policy and widely used "fair use"guidelines, may he be penalized with the highest level of damages. Furthermore, he or she may be personally responsible for his or her own legal defense.

IV. Web Resources on Copyright

A. Copyright Office

• Copyright Basics
• Reproduction of Copyrighted Works by Educators and Librarians - U.S. Copyright Office, Circular 21 (PDF Format)
• U.S. Copyright Office Home Page
• U.S. Copyright Office, Information Circulars

B. Fair Use

• Conference on Fair Use - CONFU
• Copyright and Fair Use
• Fair Use of Copyrighted Materials - U. of Texas
• Fair Use Rules of Thumb

C. Resources on Copyright Law

• Copyright Clearance Center
• Copyright and Intellectual Property (Association of Research Libraries)
• Copyright Law Materials - Cornell University
• Copyright Management Center
• Copyright Website
• Duration of copyright
• FindLaw: Legal Subjects: Intellectual Property: Copyright
• Recent Legislation on Copyright and Intellectual Property
• U.S. Copyright Law -- Contents
• Visit to Copyright Bay

D. Tutorials on Copyright and Fair Use

• Copyright Basics - Copyright Office
• Copyright for educators and librarians
• CRASH COURSE IN COPYRIGHT - U. of Texas
• Eric Digest: "Copyright Issues for the Electronic Age"
• Information Ethics Tutorial (including copyright)

E. University Policies Regarding Copyright

• Copyright Policy - U. of California
• Fair Use of Copyrighted Materials - U. of Texas
• Regents Guide to Understanding Copyright & Educational Fair Use- U. System of Georgia
• Using Copyrighted Materials - U. of Texas
• Wellesley College Copyright Policy

Disclaimer
The information provided in this document is no more than a personal understanding of the application of the copyright law to the academic environment and is not an official document issued by Pacific Union College.

Last updated 2007