Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such 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. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. Excerpted from Copyright Law of the United States, Title 17 Page 2
Whether you are an author, a professor, or a student, many occasions will arise when you want to use the copyrighted works of others. This page discusses the main issues to consider when using copyrighted material, including how to determine whether a work is copyrighted, understanding fair use, and deciding whether you will need to ask permission for a particular use. How do I know if a work is copyrighted? Copyright protection arises automatically the moment an original work is "fixed in a tangible medium of expression," in other words, the moment that text is written down or typed, or the moment a song is recorded. Because copyright protection happens so easily, and lasts so long, you should assume that any work you want to use is copyrighted, unless it is very old or produced by the U.S. government. A work does not need to be registered, published, or have a copyright notice on it to be protected by copyright. For works created in the U.S., copyright lasts from the moment a work is created until 70 years after the death of the author, except for works produced by a company/employer in which case the copyright lasts 95 years from the date of publication. Copyright has expired for works published in the United States before 1927 (as of January 1, 2020, now a moving wall that changes every year), which means they are in the public domain. You are free to use or reproduce works in the public domain however you want. In addition, some works published between 1927 and 1963 may also be in the public domain, but this can only be determined on a case-by-case basis. All works created after 1963 are under copyright, except for work produced by the U.S. government, and state constitutions and laws. If you are trying to determine whether a work published between 1927 and 1963 is still under copyright, there is a place to check:
What is fair use? Fair use allows limited use of copyrighted material without permission from the copyright holder for purposes such as criticism, parody, news reporting, research and scholarship, and teaching. There are four factors to consider when determining whether your use is a fair one. You must consider all the factors below, even though all the factors do not have to be in favor of a use to make it a fair one. It is important to remember that fair use is a defense for copyright infringement. Therefore much of what defines fair use is determined in outcomes of court cases. Stanford University maintains a list of important fair use court cases. Also, take a look at "A Fair(y) Use Tale" for an amusing, but accurate explanation of Fair Use, as well as an example of fair use, and Fair Use Fundamentals, a document commissioned by the Association of Research Libraries in 2015. The four fair use factors are as follows:
For assistance using these factors for the analysis of individual items: Many educational uses will be fair, however, nonprofit educational use alone does not automatically give you permission to copy and distribute other people's work. You will probably need to evaluate your use each time you are reproducing copyrighted material to show in your class, to hand out copies, to include in your writing, or to post on Canvas. Stanford University provides a summary of fair use cases across a variety of formats, which can provide guidance in thinking about the application of fair use. In addition to the four-factor test, the Center for Social Media and other entities have developed "best practices" documents for more specialized copyrighted materials: Can I use a work in the classroom? The rules governing use of materials for face-to-face teaching provide more flexibility concerning copying, displaying, and distributing copyrighted materials in the classroom, You may display or perform a work in your class without obtaining permission or doing a fair use evaluation when your use meets all three of these criteria: The use is:
Typical uses allowed include:
Can I post a work to Canvas? Because there are no exact rules governing fair use, you have to use your best judgment when deciding whether to post materials to Canvas without permission. There is no specific number of chapters, paragraphs, or lines that is certainly fair (or unfair), nor are there specific percentages. Copying a single chapter from a book may be fine, while copying the entire book usually is not. Consider the four factors mentioned above, and try to determine honestly whether your use seems reasonable. You can check your judgment by answering this question: "If someone used this much of my work would I think it was fair, or would I want to be asked for permission?" As an alternative, we strongly recommend that you make the material available to your students through the library course reserves service. If you use this service, your reserve list (listing both print and electronic reserve materials) will be tied to your course in Canvas automatically, and library staff will handle the creation of the digital files (when necessary) and the copyright permissions. If the material is already freely available elsewhere on the web, or through the library's electronic resources, you can link to these resources within your Canvas courses. When you link to a resource, you are not making a copy of the resource. Can use clips from DVDs with anti-circumvention protection? The Digital Millennium Copyright Act (DMCA) states that circumvention protection cannot be broken. However, the DMCA also requires that every three years the Librarian of Congress determines whether there are any classes of works that will be subject to exemptions from the DMCA's prohibition against circumvention of technology that effectively controls access to a copyrighted work. In 2010, the Librarian of Congress expanded the exemption associated with motion pictures on DVDs. This exemption now states:"Motion pictures on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances: Can I include a work in my writing? One goal of fair use is to allow the inclusion of quotations and excerpts in scholarly works without seeking permission. Some people believe that there are hard and fast numbers to determine how much of a work you may legally use no more than X lines of a song, or no more than Y words of a text but that is not the case. Every use is different, and must be considered individually.
Can I use a work in my conference presentation? The same fair use provisions that protect the use of quotations and excerpts in scholarly writing also protect those uses in scholarly presentations. You may be able to include copyrighted text, images, or videos in your presentation slides. However, if the conference organizers plan to use your presentation after it is over; for example, if video of your presentation is posted on the conference website, or if the slides are made freely available for download your ability to include copyrighted work may be more limited. You can generally show more than you can share, and you should clarify these issues in advance so that you have time to clear rights for the copyrighted material in your presentation, create a second version for distribution that does not include the copyrighted material, or choose alternative material that you are free to use. Can I use a work in a distance learning class? The Technology, Education, and Copyright Harmonization Act (TEACH Act) says that teachers and students at accredited educational institutions can use works for distance learning without permission under certain circumstances. If you:
and you plan to use copyrighted works in the following ways:
then your use aligns with the Teach Act. For more help, see Peggy Hoon's TEACH Toolkit as well as these TEACH Act checklists: Basic Checklist, Expanded Checklist, and Discussion Checklist. What if I got the work from a website? Works from a website should be presumed to be protected by copyright. The world Wide Web is not the equivalent of public domain. If a work is published online with a statement that it is in the public domain, you will have to judge whether or not these claims are trustworthy, keeping in mind that such claims will not protect you should a copyright holder object to your use. You may encounter works online for which the author or creator specifically grants rights to use them, such as those released under a Creative Commons license. A Creative Commons license grants specific uses of web-based materials. It provides a mechanism for others to make certain uses of a work from the web without asking for permission, provided you follow the terms set by the creator. What if I created the work? Unless you created the work as part of your job as an employee or under contract as a work for hire, you are the author and the initial copyright holder. However, if you have transferred your copyright to someone else, such as a journal publisher, you are no longer the copyright holder and may not have any privileges to use the work. If you are not sure, you should consult your publishing agreement to see if you have retained any rights. If you have not retained rights to use your work, then you must treat it like any other copyrighted work decide whether the use you want to make is a fair use, and if it isn't, then ask for permission. What if a student created the work? Students hold the copyright to the academic works they create, such as their papers, projects, theses, and dissertations. There are also privacy concerns related to the use of student work. If you wish to use student work, ask for permission. What if the work was published outside the US? There are differences in copyright law across countries. The Berne Convention, signed by 163 countries, requires that countries recognize the works of foreign authors the same way they do those of their own nationals. For example, all works performed or published in the US, are subject to the terms of US copyright law, no matter where they were created originally. Most countries have standardized their copyright terms, so foreign copyrights tend to last as long as U.S. copyrights: the life of the author plus 70 years. When determining whether or not you can make a particular use of a foreign work, you will need to consider the specific circumstances of your case, such as the country where the work originated, whether or not the work is in print, and how you plan to use the work. What is a Creative Commons license? Creative Commons is a nonprofit organization that created a set of simple, easy-to-understand copyright licenses. These licenses allow creators to mark a work with permission to make a variety of uses, with the aim of expanding the range of things available for others to quote, adapt, and build upon. Creative Commons licenses do two things: They allow creators to share their work easily, and they allow everyone to find work that is free to use without permission. As long as you obey the terms of the license attached to the work, you can use Creative Commons licensed material without fear of accidentally infringing someone's copyright. For more information, visit the Creative Commons website. What if my intended use is not a fair use? If you have determined that the use you want to make is not a fair use, you must ask for permission from the copyright holder. See the section on requesting permission to use copyrighted material for more information and sample request letters. |
