What is covered by copyright?

United States Copyright Law protects authors’ original “works of authorship” that are fixed in a tangible medium. A work is “fixed” in a tangible medium when its embodiment in a copy or audio file/CD/album, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.

The following are not protected by copyright law because there is no minimal amount of creativity:

facts; words and short phrases such as names, titles, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering or coloring; mere listing of ingredients or contents.

Second, the work of authorship must be fixed in a tangible form.

Ideas alone are not protected, but their forms of expression are covered.

Works, for purposes of copyright protection, include the following categories:

• Literary works; Musical works; Dramatic works; Pantomimes and choreography; Pictorial, graphic and sculptural works; Motion pictures and other audiovisual works; Sound recordings; Architectural works

Works created on or after January 1, 1978 are covered automatically whether or not they have a copyright notice. In addition, an author has the option of registering his/her work with the U.S. Copyright Office. Copyright Registration gives certain legal advantages to authors who register their works.

Example: A student’s Web page, if original, is automatically covered by copyright. Under U.S. Copyright Law, the copyright owner has the exclusive right to authorize the following:

• Reproduction of their works in copies or phonorecords
• Use of their works to create new derivative works
• Distribution of copies to the public by sale or transfer of ownership
• Performing publicly literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works
• In the case of sound recordings, to perform the work publicly by means of a digital audio transmission

NOTES:

• If your publisher holds the copyright to your work, you may not use it freely except under the exceptions and fair use clauses described below.
• Many of the activities conducted in the classroom encompass these exclusive rights. For example, a teacher may photocopy articles, upload Web sites, copy software, share computer files, create musical performances or perhaps have a public showing of a film. Generally, one

must obtain permission from the copyright owner in order to use one of the exclusive rights.

• Fortunately, copyright law provides some exceptions to this general rule that allow educators to make use of materials in these ways, provided they follow certain guidelines or criteria.
• How long does copyright protection last? Due to many revisions of U.S. Copyright Law, the date of publication and creation is important in whether each work is protected. It is more likely than not that:
  • Works published before 1923 are in the public domain, which means that their copyright protection has expired.
  • Works created on or after Jan. 1, 1978, are copyright protected for the life of the author plus 70 years.
  • Works published between 1923 and Dec. 31, 1977, are likely copyright protected provided that the published works had proper notice of copyright. Those published works without a proper notice of copyright are in the public domain.
  • Works of corporate authorship, created on or after Jan. 1, 1978, are protected for either 95 years from publication or 120 years from creation, whichever is shorter.
• In most circumstances, Post-1923 Published Works that are out of print are still covered by copyright, and if their use is beyond the scope of fair use, permission should be obtained.

What materials can be copied, performed or distributed in the classroom without obtaining permission?

• Works in the public domain, including works for which the copyright has expired.
• Facts.
• Photographs that are exact reproductions of works in the public domain.
• Works produced by the United States government, unless the work has been contracted and produced by another entity. State government material may or may not be in the public domain.
• Works that are covered by a license or contract that permits classroom use.

o NOTE: Most library databases are covered by licenses.

• Articles in journals that explicitly allow non-profit educational use without permission.

The BASICS

• Use lawfully acquired copies of materials, (e.g., items you or the institution purchased, obtained through interlibrary loan, or licensed). Do not use pirated or illegally copied materials.
• Even if you are permitted to use the works, include copyright notices on any copyrighted materials you use.
• In general, it is a good idea to use only the amount of a work that is needed to achieve your lesson/unit goals.

The SPECIFICS

Besides obtaining the copyright owner’s permission to use the work, the U.S Copyright Law provides two options that allow teachers and students to use materials in the classroom:

• 110(1) Exemption: There is a special exemption in the U.S. Copyright Law that applies to face-to-face teaching. This is a situation where the teacher is physically present in a classroom or similar place devoted to instruction and is using the materials in the context of a class session. Under § 110(1), faculty and students may only perform or display – but not reproduce or distribute – any copyrighted work in the course of face-to-face teaching activities in a classroom, without seeking permission. If this provision doesn’t meet your needs, you can see if a case can be made for fair use

Examples of classroom performances of non-dramatic music/literary works: Group of students sings an arrangement of a Beatles’ song in class as part of the lesson plan;  teacher reads aloud a chapter of a novel in class as part of the lesson.

• Fair Use: Materials may be used for teaching (including creation of multiple copies) as well as for purposes such as criticism, comment, and news reporting. Some factors to consider are:

1. Purpose of the use, including whether use is for educational purposes.
   1. Transformative uses (e.g., those that use works to create something new) are favored.
   2. Fair use of a work intended for an educational market such as a workbook may be less favored.
      1. Example of transformative use: portions of copyright works in a multimedia presentation for a class.
   3. Nature of the work. Factual works are favored in fair use decisions over use of highly creative works. In general, published works are favored over unpublished works.
   4. Amount and substantiality of the portion used in relation to the work as a whole. Use is more likely to be considered fair for small quantities, where the portion used is not significant to the entire work, and where the amount is appropriate for the intended educational purpose. Use the work if it is directly related content and limited to those enrolled.
   5. Effect of the use upon the potential market for or value of the work. Factors favoring fair use are use of lawfully acquired or purchased copies of the original works, a small number of copies made, no similar product is marketed by copyright holder, and there is a lack of a licensing mechanism. Factors arguing against fair use are repeated long-term use and making materials widely available as on the Web.

Fair Use is not a blanket exemption to copyright law.

Rather, it must be judged on a case by case basis.

Scenario:  A teacher rents a DVD of the film Hotel Rwanda from a local video store to show in her History class. The disc is labeled “For Home Use Only”. Is this use permitted?

This use falls within the 110(1) exemption of the U.S. Copyright Law that permits a classroom viewing in the context of a class session. Public performances of the video to a campus club would not be covered.

If I make a case for fair use and the owner disagrees, am I liable?

Although you still may be liable for actual damages and profits, there is a good faith fair use defense provision in the law that may remit only statutory damages even if the copying was deemed not fair use provided that the person

copying material reasonably believed that he or she was following fair use.

Things to Remember to CYA

• Make sure copies of materials are legally acquired and restricted through technological measures to those enrolled in class;
• Always include a copyright notice as it appears on the document;
• Copying is limited to portions and is not used to replace purchase of materials. In the case of journal articles you can probably make a fair use case for an entire article, but not every article from a single issue of a journal; AND
• You remove the copyrighted material/images/files at the end of the required class period.
• In most cases you will need to seek permission if you intend to use large amounts of works (e.g., entire books) or use materials over many semesters. Some materials, including our library databases, are explicitly licensed for Web use and may be used in their entirety.
• Display of visual works in the classroom is covered by the classroom exemption of the U.S. Copyright Law, in section 110(1) and includes provisions to allow display through electronic courseware in an amount typically displayed in the course of a classroom session. Uses beyond these would require application of fair use or copyright permission.
• In general, artistic works have a high level of protection under copyright law and it is more challenging to make a fair use case for their use. In the classroom it will often be difficult to limit the amount of an artistic work (i.e., a portion of a picture or painting) used to achieve a fair use. In general, if using the whole work supports your teaching goals and the other fair use factors are controlled for fair use, then it may be appropriate to use the entire work in a class.
• Photographs of existing works in the public domain are generally covered by copyright unless they are exact reproductions of the public domain work. Two-dimensional photographs of three-dimensional works such as sculpture usually involve more creativity and are therefore more stringently protected by copyright.
• Provided that you either obtain the copyright owner’s permission or satisfy a copyright exception, you may play or perform musical works (e.g., in the classroom for teaching purposes). Specifically, streaming of digital music from personal collections through may be permissible for classroom use if the uses fall within the fair use provisions of the U. S. Copyright Law or the Teach Act.
• Some works will be in the public domain, but it is important to remember that recorded musical works may have more than one copyright (e.g., in the musical work itself, usually held by the composer and in the recording, usually held by the recording company.) If you need to obtain permission, you need to acquire it from all rights holders.
• If you perform musical works or play musical works outside the classroom for a student group or for recreational purposes, and they are not in the public domain, you may need to pay to license that use.
• You should remind students when they use materials from the Internet that:
  • materials found on the Internet may be protected by copyright even if there is no copyright notice.
  • they should use proper citations.
• Try not to email articles to students. You have no way of controlling “downstream” uses and it may be considered distribution, a right reserved by the copyright holder. A better choice is to link to the article.
• If your use doesn’t fall under fair use or an exemption, you will need to identify the copyright holder and request permission for all the specific purposes you intend. Keep written documentation for all requests and responses. Some works, especially those in the arts and music often have multiple layers of copyright. You can contact the authors or creators directly or you can go through a clearinghouse.

Resources for obtaining permission:

• North Carolina State University Copyright Permissions Guide
• Copyright Clearance Center
• For Foreign Works: International Federation of Reproduction Rights Organizations
• For Music

o Identify the copyright holder Songfile or https://www.ascap.com/songview 

o Then seek permission

 To perform a non-dramatic musical work, contact ASCAP, BMI, or SESAC

 To perform a dramatic musical work, contact the copyright holder

 To record a work, contact Harry Fox Associates

Resources:

Copyright Clearance Center http://www.copyright.com

Crews, Kenneth D. Copyright Essentials for Librarians and Educators. Chicago: American Library Association, 2000.

Gasaway, Laura N. and Sarah K. Wiant. Libraries and Copyright: a Guide to Copyright Law in the 1990s, 1994.

Rosedale, Jeff. Managing Electronic Reserves. Chicago: American Library Association, 2002.

Russell, Carrie. Complete Copyright: An Everyday Guide for Librarians.

Office of Information Technology Policy, American Library Association, 2004.

University of Texas Crash Course in Copyright          https://guides.lib.utexas.edu/copyright