"Copyright. It's many things ...
To publishers, it's a means to ensure a return on the creative dollar.
To librarians, it's a guarantee to provide information that 'promotes
the sciences and useful arts.'
To educators, it's a pain in the neck."
-- The Southwest Group,
It is an "intellectual" property right, defined as the exclusive
right of a creator to reproduce, prepare derivative works, distribute,
perform, display, sell, lend or rent his/her creation(s).
Copyright does not protect ideas, titles, names, short phrases,
works in the public domain, mere facts, logos and slogans (these are
protected by trademark), blank forms that collect information rather than
provide it, and URLs, (i.e., links to a web site)
Copyright protects "forms of expression," (e.g., poetry, prose, computer
programs, artwork, written or recorded music, animations, movies and
videos, java applets, web pages, architectural drawings, photographs,
and more ...)
UNITED STATES CONSTITUTION
Article I, Section 8, Clause 8|
"The Congress shall have power ... to promote the progress of
science and useful arts,
by securing for limited times to authors
and inventors the exclusive right to their
respective writings and
As set forth in the Copyright Act, the copyright owner
has been granted five rights:
- The right to reproduce the copyrighted work.
- The right to prepare derivative works based upon the original(s).
- The right to distribute copies of the work.
- The right to perform the work publicly.
- The right to display the work publicly.
If you work at a non-profit educational institution, you are allowed to use
in certain limited circumstances, without making payment or seeking
permission from the copyright holder.
Educators are allowed exemptions under the "Fair Use" doctrine,
for purposes such as criticism, comment, news reporting, teaching
(including multiple copies for classroom use) and scholarly
This is a controversial idea that has grown out of
200 years of court rulings in U.S. history. When Congress passed the
1976 Copyright Act, it was loathe to define FAIR USE, saying, "there is
no disposition to freeze the (fair use) doctrine in the statute,
especially during a period of rapid technological change."
However, Congress did provide certain basic "criteria" to determine what
use was "fair." The 1976 Copyright Act set forth four "provisions"
by which copyrighted materials could be used in non-profit
educational settings. Remember, these are guidelines only;
the Copyright Act doesn't set quantitative limits on what can be copied.
In determining if "fair use" has been violated, courts try to answer
the following four questions, based on the four provisions of the law:
- Is the purpose or character of use commercial or non-profit (i.e.,
- Is the nature of the copyrighted work creative or informational (i.e.,
- What is the amount and substantiality of the portion used in
relation to the copyrighted work as a whole? (Rule of thumb: use no
more than is necessary. For small poems, perhaps the entire work; for
larger works, only a small amount; but NEVER copy the "heart" or
"creative essence" of a work -- that's infringement!)
- What is the effect of this use on the potential market for, or
value of, the copyrighted work? (This is the most important question
of the four; did the copying or use deprive the copyright holder of
Copying should not harm the commercial value of the work.)
Fair use guidelines
allow teachers to make single copies of the following:
- A chapter from a book
- An article from a periodical or newspaper
- A short story, short essay, or short poem, whether or not from a
- A chart, graph, diagram, drawing, cartoon, or picture from a
book, periodical or newspaper
For research purposes, a teacher may select books, magazines or journal
articles, or other documents, to be placed "on reserve" in the library,
which functions as an extension of the classroom.
Students may borrow these materials and make single copies on machines
that are plainly marked with notices citing protection of the works under
the Copyright Act. The students, as users of self-service photocopiers,
are held accountable for any copyright violations.
Libraries may also make single copies for use "on reserve," but ONLY at
the request of a faculty member. At the end of the semester, these
copies must be returned to the faculty member. MULTIPLE COPIES FOR CLASSROOM USE
Fair use guidelines
allow teachers to make multiple copies with the following
- The copying MUST be done at the initiative of the teacher (at a
moment of inspiration, when it is unreasonable to get permission from
the copyright owner). NOTE: If you have time to seek a publisher's reprint,
or get permission, you are obligated to do so. It is only if you do NOT
have time that "fair use" allows you to make copies for students.
- Only one copy is made for each student.
- No charge is made to the student except to recover the cost
- The copying is done for only one course.
- The same item is NOT reproduced from term to term.
- No more than one work is copied from a single author.
- No more than three authors are copied from a single collective work
(e.g., an anthology).
- No more than nine instances of multiple copying occur during a
single term or semester.
- For an article, the limit is 2,500 words.
- For a longer work of prose, the limit is 1,000 words, or 10% of the
work, whichever is less.
- For a poem, the limit is 250 words.
- For a longer poem, an excerpt of no more than 250 words.
- For a chart, diagram, cartoon or picture, the limit is no more than
one from a book, periodical or newspaper.
- "Consumable works," (e.g., workbooks and standardized tests) shall
NOT be copied.
The practice of creating "Coursepacks" of selected readings for
students to use in their coursework is surrounded by controversy.
It's probably an
issue that falls more properly under the category of making
multiple copies. In any event, under the law, coursepacks may be:
- Limited for brevity
- Limited to one semester or term
- Limited to non-profit educational settings
- Subject to acquisition of permissions or licensing
A broadcast program may be recorded off-air simultaneously and
retained by a non-profit educational institution for 45 days after
date of recording. After than, it must be erased or destroyed. Use
of the copy is restricted to educational settings where it may only be
used once. Requests must come from individual teachers. Other
Software owners are permitted to make a back-up archival copy of
software in the event the original disk fails to function. Such
back-up copies are not to be used on a second computer at the same
time the original is in use.
When an educator presents to students an AV, audio-visual work
(e.g., video, VHS tape,
laserdisc, DVD movie, 35mm slide, filmstrip, or 16mm movie),
we are talking about "Performance and Display." An AV work is a form of
expression and, as such, is protected by copyright.
The 1976 Copyright Act allows teachers to share AV works with students
in a face-to-face teaching situations only. AV works may NOT be transmitted
to other schools or locations without permission of the copyright holder
This all but rules out distance education as a venue for the
performance of AV works. Transmission of an AV work may be permissible
over closed circuit television to classrooms located within the same
In similar situations, the performance of nondramatic literary or
musical works is permitted, IF the performance or display is a
regular part of systematic instructional activities, IF it is
directly related to teaching content of transmission, IF the
setting is normally devoted to instructional activities, or IF
it is sited to accommodate persons with disabilities.
Assuming the purpose is curricular and the setting is face-to-face,
two additional criteria apply:
- The performance of the AV work must meet the instructional
- The AV work must be a "lawfully made" copy.
Any other type of performance or display is potentially an infringement.
This means you CANNOT perform a popular video to students as a reward for
hard work, or as an extracurricular activity.
"Fair Use" and "Performance and Display" are distinct from each other in
the 1976 Copyright Act. When an educator perceives the need to copy a
portion of an AV work to be used in an instructional situation, we are
talking about "Fair Use," and that means DUPLICATION, a real "hot button"
for video owners and distributors.
Remember that it is illegal to copy an entire AV work or to convert it
to another format. For example, you CANNOT copy a 16mm film onto VHS
videotape, even if the title is not available to buy in VHS format.
You CANNOT copy a 3/4-inch videotape onto VHS tape, nor can you copy
a laserdisc onto videotape.
If you intend to copy any AV item, the best advice is: always seek
permission from the copyright holder. Copying AV materials without
first gaining permission is subject to challenge under the "Fair
Use" doctrine. If you cannot get permission in time, and you do
go forward with your copying decision,
remember to abide by the four "fair use" criteria for copying.
Use only the smallest amount necessary to meet the instructional
objective of your course and avoid using the "creative essence" of the copyright
work. Finally, be advised that the definition of the "heart" or "creative
essence" of a work may differ markedly from user to creator.
If you contemplate taking a small portion of a video to incorporate into
a multimedia work, read on.
Multimedia involves the integration of text, graphics, audio and/or video
into a computer-based environment.
Issues of copyright infringement are growing along with growth of the World
Wide Web on the Internet.
Seen from one perspective, the inclusion of others' works into a multimedia
program violates the copyright holder's fundamental right to create
"derivative" works. But from another perspective, an educator is merely
exercising fair use privileges to utilize small protions of relevant works
to fulfill a legitimate teaching objective.
fair use guidelines for educational multimedia, developed in 1996 by CONFU,
(Conference on Fair Use) a group of educators, attorneys, publishers, librarians and
others, convened by the Clinton Administration:
- Students may incorporate others' works into their multimedia creations
and perform and display them for academic assignments.
- Faculty may incorporate others' works into their multimedia creations
to produce curriculum materials for educational use. (NOTE: Faculty may
retain these multimedia products incorporating the copyrighted works of
others for a period of two years. After that, permission must be sought.)
- Faculty may provide for multimedia products using copyrighted works to
be accessible at a distance (i.e., distance learning), provided that only
those students may access the material.
- Faculty may demonstrate their multimedia creations at professional
symposia and retain same in their own protfolios.
- For motion media (e.g., video clips), use is limited to 10%,
or three minutes, whichever is less.
- For text, use is limited to 10%, or 1,000 words, whichever is less.
- For poems, use is limited to 250 words, three poems per poet, and
five poems by different poets from an anthology.
- For music, use is limited to 10%, or 30 seconds, whichever is less.
- For photos and images, use is limited to five works from one author
and 10%, or 15 works, whichever is less, from a collection.
- For database information, use is limited to 10%, or 2,500 fields,
or cell entries, whichever is less.
Members of CONFU could not reach consensus on fair use guidelines for
distance education. Following are SUGGESTIONS for what is permissable
for display in a distance education setting:
- A photograph, chart, map or graph.
- A computer screen display (static, not moving).
- An illustration.
- A single still frame from a video, videotape, laserdisc, or
- Portions of audio from non-dramatic music.
Following are SUGGESTIONS for what is NOT permissable in distance
education (without first seeking and receiving permission from
the copyright holder.)
- Full motion video or audio from a videotape, a laserdisc, DVD,
video file on a computer (even though the digitization of that video
may be fair use. The performance and display in distance education
is still not allowed.)
- Consecutive images from a slide set, filmstrip, or 16mm movie.
- Audio from a dramatic work (e.g., "South Pacific").
- Live performance of a play or musical.
Important "rule of thumb" for distance education:
If it moves, it's NOT ALLOWED! Proceed from the basic assumption
that under no circumstances can performance of audio-visuals or dramatic
works be sanctioned in distance education without permission from the
Exemptions are given to libraries and archives for limited
reproduction and distribution of copyrighted materials.
NOTE: These exemptions do not apply to musical works, pictorial,
graphic or sculptural works, or motion picture or other A/V works,
with the exception of news reporting.
A library or archives or any of its employees, acting within the
scope of employment, can reproduce a single copy or
phonorecord or work and distribute such copy or phonorecord under
this section if:
- Copy is made without purpose of direct or indirect commercial
- Library or archive collections are open to the public or
available to affiliated researchers and other researchers in the
- Reproduction or distribution includes Notice of Copyright.
Unpublished works currently in the collection can be duplicated in
facsimile form for preservation and security or for deposit for
research use in another library or archives which is open to public.
Items in the collection which are published (copy or phonorecord)
and have been damaged, lost, stolen or
are deteriorating may be duplicated in facsimile form IF the library
has made a reasonable effort to purchase an unused replacement at a
fair price and has been unsuccessful.
A single copy of an article or contribution to a copyrighted work
may be made for a user IF he requests it, IF it is the only item
from that copyrighted collection or periodical issue, IF the copy
becomes the property of the user, IF the library has no notice
that the copy will be used for any purpose otheer than private
study, scholarship or research, and IF the library displays the
"Warning of Copyright Statement" prominently where orders are
taken and on the order form.
An entire work may be copied and distributed by a library/archive
IF it is part of a library collection, IF the library/archives
first determines after reasonable investigation that the copy or
phonorecord cannot be obtained at a fair price, IF the copy or
phonorecord becomes the user's property, IF the library/archives
has no notice that the copy/phonorecord will be used for any
purpose other than private study, scholarship or research, and IF
the library/archives displays prominently the "Warning of
Library employees are not liable for copyright infringement for
unsupervised use of reproducing equipment located on library
premises IF the equipment displays a notice that making copies
may be subject ot copyright law.
Library employees may be liable IF they are aware or have a
substantial reason to believe that systematic reproduction or
distribution of multiple copies is intended. Interlibrary Loan
is acceptable as long as it does not have the purpose or effect
of substituting for subscriptions or purchase of the work in question.
NOTE: The above textual material is intended to provide general
information as it applies to copyright and fair use in a non-profit
and educational setting. It is NOT to be construed as legal opinion
nor relied upon as a substitute for otaining legal advice from a
The information printed on this Web Page has been excerpted, with
permission, from two basic sources:
- Notes and other information supplied by Professor
Marsha L. Baum, formerly Associate Professor of Law and Law Librarian,
University of South Carolina Law School, and currently Law Librarian,
University of New Mexico.
- Text from the Internet site,
Copyright Bay (no longer active), created by
The Design and Development Team of Janet Agnew, Glen "McKay" Gummess,
and Mike Hudson, graduate students in Educational Technology Leadership
at The George Washington University.
Last modified Tuesday January 17, 2006