Why is Copyright so Complicated?
There are exceptions to what works can be copyrighted
and when a copyrighted work can used without permission
There are both works exempt from copyright and situations where copyrighted work can be used without permission.
Sections 107-122 of the copyright law list these exceptions, who can use them, and under what circumstances.
- Some exceptions, like Fair Use (17 USC §107), require you to weigh different criteria, including the amount and nature of the work and the impact the use will have on the market value and with others purchasing the work.
- Other exceptions like the TEACH act (an amendment of Section 110(2)), have a checklist where all of the conditions must apply.
- Other exceptions like Sections 111-122 could apply to instructors and libraries in special cases. Examples include making copies of works for the disabled (Section 121), requiring licenses to be obtained for playing copyrighted musical works (Section 115) and allowing users to make software backup copies (Section 117).
What is exempt from copyright?
- An idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated or embodied (17 USC §102)
- Any work from the U.S. Government (17 USC §105)
- Any work whose copyright term has expired
So what exceptions can I use when teaching in the classroom?
Performance and display in the classroom (17 USC § 110 (1))
This section covers face to face teaching situations. It allows the instructor to use portions (or perhaps the entire content) of copyrighted works for the purposes of instruction. It covers all media including movies and images.
There are helpful guides to help determine if a work can be allowed in classroom:
Copyright Metro - Baruch College's Guide to Using Copyright Media in the Classroom
Digital Rights Image Computator (Visual Resources Association)
This covers distance education or virtual classroom activities. The guidelines for distance education are different than those for a face to face teaching environment. The TEACH Act, amends Section 110(2) to include a list of factors for online classroom use.
Guide to the TEACH Act (University System of Georgia)
TEACH Act Checklist (University of Northern Iowa)
TEACH Act Flow Chart (Scholarly Communications @ Duke, Duke University Libraries)
Fair Use (17 USC §107)
Fair Use can be used a third option if a use might not be permissible under either
Sections 110(1) or 110(2). It allows you to use a portion of the work, considering
a balance of four factors.
This is the most complex and nuanced of all the exceptions, and there are a variety of helpful sites to consult for a fair use analysis. Keep in mind that there are four factors used to evaluate whether use of a work is considered Fair Use:
- the purpose and character of your use
- the nature of the copyrighted work
- the amount and substantiality of the portion taken
- the effect of the use upon the potential market
One of the best examples of Fair Use is this short video from the Center for Internet and Society at Stanford Law School:
Fair Use Evaluator (Michael Brewer, ALA Office for Information Technology Policy)
Checklist for Fair Use (Copyright Advisory Office, Columbia University Libraries/Information Services)
What about libraries? Do they have exceptions, too?
They sure do! Libraries also have exceptions to allow for lending of books, course reserves, and making preservation copies of works.
Reproduction by Libraries and Archives (17 USC §108)
Libraries and archives have special permissions to make copies for preservation - specific conditions must are met. Some online tools summarize and help determine if your use is allowed:
Section 108: Draft Revision of the Library and Archives Exceptions in U.S. Copyright Law (U.S. Copyright Office, Library of Congress, 6/7/2016) An overview of the history of Section 108 and proposed revisions to date.
Section 108 (Columbia University Libraries/Information Services Copyright Advisory Office)
First Sale (17 USC §109)
This copyright exception allows libraries to circulate copies of works purchased. Library collections that are licensed, like some e-books and journals, cannot use the first sale exception, since the license may contain terms and conditions that alter copyright permissions.
Copyright in the Library: the Digital Library (Copyright Crash Course, University of Texas at Austin)
Fair Use (17 USC §107)
Libraries can make fair use decisions just like course instructors to use portions of copyrighted works. Course reserves is one example of how fair use is used to provide access to works. Just like course instructors, libraries need to weigh the four factors when making a decision to use a work without permission.
What is Fair Use? (American Library Association)
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Questions? Contact the Libraries' Scholarly Communications Officer: Elizabeth Brown, (607) 777-4882.
This work is licensed by Creative Commons BY-NC-SA 3.0.