- What is copyright?
- What does copyright protect?
- How is a copyright different from a patent or a trademark?
- How long does a copyright last?
- How do I get permission to use somebody else's work?
- How can I find out who owns a copyright?
- How much someone else's work can I use without getting permission?
- Can I show a movie in class without obtaining permission from the copyright owner?
- What is the Fair Use exception?
- What are the Fair Use guidelines?
- What are the classroom guidelines for Fair Use?
- How to use the four factors governing Fair Use?
Copyright is a form of protection provided by the Congress of the United States to the authors of "original works of authorship," including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works. Copyright Law was first enacted in May 1790. The original law has been revised several times since then with the fourth general revision signed into law in 1976. In recent years, the Sonny Bono Copyright Term Extension Act of 1998 (Public Law 105-298) extended the overall term for copyright protection another 20 years for all items that were under copyright protection on January 1, 1978. This prolonged the copyright term to last a total of 95 years from the end of the year in which it was originally secured.
Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.
Copyright protects original works of authorship, while a patent protects inventions or discoveries. Ideas and discoveries are not protected by the copyright law, although the way in which they are expressed may be. A trademark protects words, phrases, symbols, or designs identifying the source of the goods or services of one party and distinguishing them from those of others.
The term of copyright for a particular work depends on several factors, including whether it has been published, and, if so, the date of first publication. As a general rule, for works created after January 1, 1978, copyright protection lasts for the life of the author plus an additional 70 years. For an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication or a term of 120 years from the year of its creation, whichever expires first. For works first published prior to 1978, the term will vary depending on several factors. To determine the length of copyright protection for a particular work, consult chapter 3 of the Copyright Act (title 17 of the United States Code). More information on the term of copyright can be found in Circular 15a, Duration of Copyright, and Circular 1, Copyright Basics.
You can ask for it. If you know who the copyright owner is, you may contact the owner directly. If you are not certain about the ownership or have other related questions, you may wish to request that the Copyright Office conduct a search of its records or you may search yourself. See the next question for more details.
Check with UK Libraries OR We can provide you with the information available in our records. A search of registrations, renewals, and recorded transfers of ownership made before 1978 requires a manual search of our files. Upon request, our staff will search our records at the statutory rate of $165 for each hour (2 hour minimum). There is no fee if you conduct a search in person at the Copyright Office. Copyright registrations made and documents recorded from 1978 to date are available for searching online. For further information, see Circular 22, How to Investigate the Copyright Status of a Work, and Circular 23, Copyright Card Catalog and the Online File.
Under the fair use doctrine of the U.S. copyright statute, it is permissible to use limited portions of a work including quotes, for purposes such as commentary, criticism, news reporting, and scholarly reports. There are no legal rules permitting the use of a specific number of words, a certain number of musical notes, or percentage of a work. Whether a particular use qualifies as fair use depends on all the circumstances. See FL 102, Fair Use, and Circular 21, Reproductions of Copyrighted Works by Educators and Librarians.
The fair use exception is contained in section 107 of the Copyright Act. It provides for limited uses of small amounts of another’s work for purposes of teaching, research and scholarship. It provides few black and white rules, but instead directs you to consider four factors:
- The purpose and character of the use, including whether the 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; AND
- The effect of the use upon the potential market for or value of copyrighted work.
Many instructors are of the erroneous opinion that if a use is for an educational purpose, then they are freely permitted to use the material. While an educational use weighs toward a fair use finding, it is only one of the four factors, and in each instance all four factors must be considered. If the use is for a commercial purpose, such as licensing a work to a commercial distributor, this would weigh very heavily against a finding of fair use.
To help with the uncertainties associated with fair use, some guidelines have been developed and agreed to by a wide variety of interested parties for areas such as classroom handouts and music usage. These guidelines are not law, and do not typically reflect the maximum use allowed by law, but merely reflect an agreed “safe harbor”.
Fair Use Guidelines for Classroom Copying (go to page 7 of this U.S. Copyright Office Circular)
There are additional guidelines for other uses such as music and multimedia. Although various groups are attempting to reach agreement on fair use guidelines for distance learning materials, at present there are no universally accepted guidelines. Although endorsed by a number of thoughtful scholars and groups, this set was considered and debated, but was not accepted by all parties.
Copyright law itself provides little specific guidance as to what actually constitutes educational fair use of copyrighted materials. To help provide some certainty, a committee consisting of educators, authors, and copyright holders agreed on a set of guidelines called the Classroom Guidelines for Fair Use. The guidelines aren't as lenient as educators would have liked or as strict as copyright owners would have liked, but they are the agreed upon "safe zone." The Fair Use Guidelines provide several provisions that allow instructors and libraries to place items on reserve without worry so long as these provisions are followed in good faith.
One provision states that an instructor is allowed to place a "reasonable number" of items on reserve before it is necessary to obtain copyright permission. The term "reasonable number" is very vague, and therefore is subject to disagreement from various users as to what constitutes a reasonable number. Two suggested numbers in the past have been less than 6, from the American Library Association guidelines, and the number 9, from the Fair Use Guidelines for Classroom Use. At the University of Kentucky, we've decided that 12 items may be considered reasonable.
Another provision states that "first time use" of an item does not require copyright permission provided that use of the item meets other provisions of the Fair Use Guidelines. In other words, an item may not be used from term to term by the same instructor for the same course without obtaining copyright permission.
The third major provision states that no more than one chapter or 10% of a book, whichever is less, may be photocopied without obtaining copyright permission.
While the three primary provisions are mentioned above, the guidelines also offer additional provisions that benefit instructors and libraries. One of these provisions allows instructors to temporarily place photocopies of book chapters on reserve in the event that a book ordered for reserves, or for students to purchase in the book store, does not arrive in time for students to access. All UK Libraries follow these guidelines.
Please see the Fair Use page for more information.
After considering each of the four factors, you should find more “good” assumptions than bad. Some universities use a type of score sheet, which you can do if desired. However, each use will be subject to its own analysis.
Item 1. Use in a password protected course is a “good” factor, so we would generally assume item 1 is “good”.
Item 2. Fact based works are entitled to less protection than fiction, presumably item 2 will be “good”.
Item 3. Based upon a recent federal case (currently on appeal), for course reserves you should ASSUME that anything more than one chapter or 10% exceeds the “amount and substantiality” restriction. (Be particularly cautious of pictures and diagrams, one use MIGHT be 100%!)
Item 4. Given the number of e-publishers, unless proven otherwise you should assume that the publisher e-licenses users and your use impacts the publisher’s ability to license (sell) small portions of the work, so item 4 would be “bad”.
You can also use this Fair Use checklist as an aid in applying the four factors to your uses of material.