Copyright & Fair Use Guide

Copyright is legal protection granted for those works that can be fixed in a tangible form of expression. Copyright provides protection for works falling under the following categories:

• literary works
• musical works (including any accompanying words)
• dramatic works (including any accompanying music)
• pantomimes and choreographic works
• pictorial, graphic, and sculptural works
• motion pictures and other audiovisual works
• architectural works

Copyright involves the protection of creative works, so certain items, such as facts, titles, statistics, data, and works produced by the federal government are not subject to copyright protection. Furthermore, copyright should not be confused with patents, which provide protection for inventions, or with trademarks, which provide protection for products or services characteristic of a business or an organization.

“Copyright Basics.” U.S. Copyright Office, 2012, http://www.copyright.gov/circs/circ01.pdf. Accessed 19 Dec. 2017.

Sections I 06 and I 06A or the United States Copyright Law address the rights given to a copyright owner. These rights include the following:

• to reproduce the copyrighted work in copies or phonorecords
• to prepare derivative works based upon the copyrighted work
• to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending
• in the case of the literary, musical, dramatic, and choreographic works, pantomimes. and motion pictures and other audiovisual works, to perform the copyrighted work publicly
• in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work. to display the copyrighted work publicly
• in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission

“Copyright Basics.” U.S. Copyright Office, 2012, http://www.copyright.gov/circs/circ01.pdf. Accessed 19 Dec. 2017.

Prior to 1989, all works subject to copyright protection had to be registered with the federal government (like patents and trademarks are presently) and was then extended if the copyright owner filed the appropriate follow-up application. Copyrighted works were then marked with © and the year to denote it was protected. However, since 1989, it is not requisite for a work to be registered, so one should assume copyright protection exists.

“Copyright Basics.” U.S. Copyright Office, 2012, http://www.copyright.gov/circs/circ01.pdf. Accessed 19 Dec. 2017.

The length of a copyright’s protection is based on the year the original copyright was registered. Through the years, the length of the initial copyright and the length of the extension have changed a couple times. Currently, copyright protection lasts the life of the copyright owner plus 70 years.

At present, one is safe to assume that any work copyrighted before 1923 has entered the public domain. (Others may have entered the public domain if, for instance, it was not properly registered at a time when registration was required or if the copyright owner failed to file for an extension. Works within a marked Creative Commons are also considered to be in the public domain.

“Copyright Basics.” U.S. Copyright Office, 2012, http://www.copyright.gov/circs/circ01.pdf. Accessed 19 Dec. 2017.

Copyrights are registered with the U.S. Copyright Office. Currently, the process requires an application and a tiling fee. The Copyright Office then reviews the application and will provide further communication relative to one’s application.

“Copyright Basics.” U.S. Copyright Office, 2012, http://www.copyright.gov/circs/circ01.pdf. Accessed 19 Dec. 2017.

Obtaining permission begins with determining who the copyright owner is, if it not already known. The U.S. Copyright Office maintains a searchable record of all registered copyright owners. (Registration has not be requisite to copyright protection since 1989.) Once owner has been determined, contact can be made to request permission. Such requests should include the requester’s name, contact infom1ation (address, telephone number, email, etc.), the scope of what is being requested for use, and what the use will be. If the owner cannot be easily determined, the Copyright Clearance Center may be able to help.

“Copyright Basics.” U.S. Copyright Office, 2012, http://www.copyright.gov/circs/circ01.pdf. Accessed 19 Dec. 2017.

Since copyright protects creative works, the provision known as “Fair Use” is made for educators with the goal of encouraging new creations and advancing the scope of current knowledge. Section 107 of the Copyright Law itself states, “Notwithstanding the provisions of sections 106 and 1 06A, the fair use of a copyrighted work, including use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”

Fair Use is based upon four criteria which are listed below:

• the purpose and character of the use. including whether such use is of a commercial nature or is for nonprofit educational purposes
• 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 upon the potential market for or value of the copyrighted work

It is not necessary to satisfy all four criteria for a potential use to be a fair use, although the more criteria a potential criteria satisfies, the more likely it is indeed a fair use.

Fair Use Checklist
(Adapted from Crews (Columbia University) & Buttler (University of Louisville))

For more information on the Four Criteria of Fair Use

Crews, Kenneth D., Dr. “Copyright Advisory Office – Fair Use.” Columbia University, https://copyright.columbia.edu/basics/fair-use.html. Accessed 19 Dec. 2017.

Originally, copyright and distance education were disconnected with all acti vity in the digital world being a copyright infringement. The TEACH Act was adopted to reconcile this disconnect.

The TEACH Act required certain institutional controls, such as time-out features, access via password, controls on records and storage, etc.) be in place so that content could be controlled and limited in a way similar to that in a seated classroom. Further explication of the TEACH Act (including the duties of the institution, the duties of the instructor, and the duties of the library) is available via the ALA web site

“Distance Education and the TEACH Act.” American Library Association, http://www.ala.org/advocacy/copyright/teachact/distanceeducation. Accessed 19 Dec. 2017.

Copyright infringement carries with it risk of both civil and criminal punishments. The maximum criminal penalty for copyright infringement is up to five years and prison and up to $250,000 in damages.

For more information on Copyright Infringement:
US Title 17 – Chapter 5

“Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code – Chapter 5.” U.S. Copyright Office, http://www.copyright.gov/title17/92chap5.html. Accessed 19 Dec. 2017.

The copyright law of the United States (Title 17, United States Code) governs the making of photocopies or other reproductions of copyrighted material.

“Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code – Chapter 5.” U.S. Copyright Office, http://www.copyright.gov/title17/92chap5.html. Accessed 19 Dec.2017.