The Congress created the Copyright law to grant authors a limited monopoly. Others may use materials in a variety of ways:
Each of these options has advantages and limitations and it is up to the user to determine if a particular work is protected and how it might be legally used.
Determining if a piece of material is protected by copyright and, if so, how to use it is difficult. Smith, Macklin, & Gilliand have presented a useful framework for analyzing any copyright problem.
One of the most difficult issues for educators and librarians, when faced with a copyright problem, is simply knowing where to begin -- which parts of the legal rules and doctrines apply to this specific problem. To deal with this uncertainty, we suggest working through the following five questions, in the order they are presented. They are simple questions, but they are not easy to answer; all of the material we cover in this course is relevant to addressing one or more of them. By working through them in order, it is possible to identify which of the parts of copyright law apply to the specific problem or fact pattern that you need to address.
The five questions that form this framework for copyright analysis are:
1. Is the work protected by copyright?
a. Is the work I want to use protected by copyright, or is it in the public domain?
b. If I wrote it, do I still own copyright, or did I sign over rights for my intended use to the publisher?
2. Is there a specific exception in copyright law that covers my use?
a. Is my intended use covered by a specific exception to the exclusive rights in the copyright law, such as the one for libraries or for classroom performances and displays?
3. Is there a license that covers my use?
a. Is there a Creative Commons license attached to the work? If so, can I comply with the terms of the license, or can I find another useful work that is CC-licensed?
b. If affiliated with an educational institution, is there a license that governs how the copyrighted material I’m accessing through my library can be used? If so, can I comply with the license terms? If you are uncertain, your librarian should be able to help you.
4. Is my use covered by FAIR USE?
a. Four factors are:
i. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
ii. the nature of the copyrighted work;
iii. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
iv. the effect of the use upon the potential market for or value of the copyrighted work.
b. Questions for transformative fair use under factor one are:
i. Does the copyrighted material help me make my new point?
ii. Will it help my readers or viewers get my point?
iii. Have I used no more than is needed to make my point? (Is it “just right”?)
5. Do I need permission from the copyright owner for my use?
a. If so, first locate the copyright owner and fully explain your intended use in your permission request.
b. If no response or answer is no, reconsider your use of this work to see if you can make a fair use, or consider using another work.
What is the Public Domain
The public domain is a term that refers creative materials that are not covered by intellectual property laws such as trademarks, patents, and copyrights. The public owns these works and authors no longer retain specific rights. Works arrive in the public domain in five common ways:
The typical term for Copyright protection extends the life of the author plus 70 years. However, there are notable exceptions such as:
The Library at Cornell University presents a useful chart to determine timeframes for when a work enters the public domain: Copyright Term and the Public Domain in the United States.
The Creative Commons
The Creative Commons is a nonprofit organization that provides a legal means for accessing and placing creative and academic works in the public domain while still retaining a means for proper attribution of materials
Access the Creative Commons at CreativeCommons.org
The TEACH Act
The TEACH Act or the "Technology, Education and Copyright Harmonization Act" was enacted by Congress in 2002. It enables educators to use copyrighted materials for distance education, with certain restrictions.
One of those restrictions is that an educational institution must be an accredited and non-profit.
Sullivan University can not take advantage of the provisions of the TEACH Act.
Fair Use is a provision of in the Copyright law that allows use of copyright protected material with certain limitations and in certain circumstances.
It is left to the user to determine if the use is fair by applying the Four-Factor Test. It is important to note that a use need not meet the requirements for all of the four factors nor does it need to meet them all equally.
Four Factor Test
Link to It
Much of the copyright protected material used in academic classrooms is available on various electronic platforms, be it YouTube or in databases licensed for use by the University. While downloading and distributing a printed copy or posting the full text of an article would most likely be a violation of Fair Use, linking to it is perfectly fine.
Sometimes a piece of information or the specific use of that information simply does not fall into any category of permissible use. Obtaining permission from the copyright holder is the only option. This, however, can be a lengthy process and requires a fair bit of preparation. Often publishers will have a Permissions link or other contact information on their website to facilitate the process.
Here are some things to consider before you begin the process.
Determine who holds the copyright.
The holder of the copyright is not always the author/creator. It could be the that the author has ceded ownership to the publisher or other third party. In cases where the author retained rights but is deceased, the rights would pass to heirs. When it is impossible to identify the copyright holder, works are considered orphans; but, they are still protected until they fall into the public domain.
Consider how it will be used.
Before contacting the copyright holder make sure the use can be fully described. Be able to provide the following information:
Get it in Writing and Keep good records
It is essential to get any copyright agreement in writing. And, always keep records of copyright permissions granted.