Copyright & Fair Use
Donnelly College is committed to respecting the ownership of all intellectual property governed copyright laws and to promoting the responsible fair use of the intellectual property of others. We are providing this information to provide guidance to faculty, students and staff who wish it use copyrighted material in education and research.
What is Copyright?
The Constitution of the United States provides copyright protection for original works in a tangible form. This protection gives the creator of any work the control over five basic rights:
- The right to reproduce
- The right to adapt
- The right to publish
- The right to perform
- The right to display
These rights allow the creator to protect his or her work and receive compensation from it.
The works covered by copyright include:
- Literary works
- Musical works (including lyrics)
- Dramatic works (including music)
- Art (pictorial, sculptural, graphic)
- Architectural works
- Motion pictures and other audio/visual recordings
- Choreographic and pantomime works
- Software and semi-conductor chips
The rights begin from the moment of creation and the work does not have to be registered with the US Copyright Office or have a copyright notice to be protected.
What is not protected by copyright?
- Ideas and methods described in copyrighted works
- Book and movie titles
- Short phrases
- Government documents
- Laws, regulations and judicial opinions
- Scientific theorems and mathematical formulae
- Work in the public domain
- Freeware--works the author has chosen to place in the public domain
- Works with no original thought like a phone book
What is the public domain?
The public domain includes all work with expired copyright as well as the items listed above. The copyright has expired on anything published before 1923 in the United States. For published or unpublished works first published in the United States after March 1, 1989, the copyright protection extends for 70 years after the author's death. In-between these two dates, the rules can be difficult to remember, so we recommend reading Circular 15a from the US Copyright Office.
Two other great resources are Circular 22 from the U.S. Copyright Office which provides information on investigating the copyright status of a work, and the Copyright Crash Course written by Georgia K. Harper from the University of Texas is also a great resource. It is made available through the Creative Commons Attribution 3.0 License.
Some creators of original material have chosen to make their work available as public domain. The Creative Commons is a non-profit organization that promotes scholarly communication by making creative works available through a Creative Commons license. This allows copyrighted work to be used without first obtaining written permission. The licenses generally restrict use of the material to non-commercial, non-derivative purposes with attribution.
The Internet is not public domain
Material placed on the Internet is covered by copyright laws. Before you use any material from the Internet, you must obtain permission as you would from any other source.
File sharing is copyright infringement
You are allowed to make a copy of a CD that you own, but it is illegal to participate in peer-to-peer file sharing of copyrighted work on the Internet. These peer-to-peer file sharing sites open up material on your computer to others whenever it is connected to the Internet without your knowledge. Unauthorized file sharing may result in civil and criminal liabilities and fines up to $30,000 per work infringed. The Digital Millennium Copyright Act specifies that universities as Internet Service Providers must police any illegal activity detected. There are legal options for obtaining music, video, and print material on the Internet. EDUCAUSE, a nonprofit organization, provides a list of Legal Downloading Websites.
What are my copyrights?
Your work is copyrighted as soon as it is created. It is a good practice to save dated drafts of your material to prove when it was created should an issue ever arise. Another option, often called "the poor man's copyright" is to mail a copy to yourself in a sealed envelope and keeping the sealed envelope with the postmark validating the date it was mailed.
The Association of Research Libraries' brochure Know Your CopyRights is useful for faculty, students, and staff. It applies to your own work and using the work of others. It is provided through a Creative Commons Attribution-NonCommerical 2.5 License.
What is Fair Use?
Fair use allows the academic community to use parts of copyrighted material for:
- News reporting
Fair use is a privilege that should never be abused or ignored. There is no specific law governing fair use, but judges have developed four factors to determine if a particular use is fair use.
- Purpose of use
Was the work transformed or was value added? Does it meet specific educational objectives of the course?
- Nature of the work
The more creative the work, the less you may use. For example, you may usually copy more from factual rather than fictional works and published works versus unpublished works, but you should only copy what is relevant to the educational objectives of the class. Workbooks, tests, and other consumable works should never be used or copied.
- Amount of the work
The portion of the work quoted is important, you may quote more from a novel than from a song. The portion copied must be relevant to the educational objectives of the class.
- The effect of your use on the market for the original
Your use must not deprive the copyright owner of income. Using a work once may be okay, but repeated use of material in subsequent classes may not be fair use. If the material is relatively easy to obtain and affordable, it may be better to require that students purchase the work.
Examples of Fair Use
The following are examples of uses that might be considered fair use:
- A short quotation in a review or criticism
- A short quotation in a scholarly work
- Using some portion of the work in a parody
- Summarizing a portion for a news report
- A library reproducing part of a damaged work
- Incidental reproduction in a news broadcast
Fair Use in the Classroom
Educational Fair Use Guidelines were created by the academic community and publishers to help guide instructors on the use of copyrighted material. These guidelines are not part of the copyright act, but can be found in Circular 21 at the U.S. Copyright Office.
The guidelines allow instructors to make one copy of a chapter of a book, a short story, short poem, or short essay, an article from a periodical or newspaper, and a table, chart, picture, diagram, or illustration from a book, periodical or newspaper. There are more restrictions on materials that can be copied and handed out to students in the class. These restrictions include:
- Complete poems of less than 250 words and not more than 2 printed pages may be copied. Excerpts of longer poems cannot exceed 250 words.
- A complete article, story, or essay of less than 2,500 words may be copied. For works longer than 2,500, excerpts must be limited to the lesser of 1,000 words or 10% of the total work with a minimum of 500 words.
- One chart, graph, drawing, diagram, cartoon, or photo from a book.
- "Special" works combing language and illustrations such as children's books are limited to copies of two published pages and not more than 10% of the total work.
- No more than one short piece or two excerpts per author are allowed during a term
- Not more than three pieces from a collective work or periodical are allowed during a term.
- Only nine instances of multiple copying are allowed per class per term.
- The copyright notice must be displayed.
Multiple copying should also make the "spontaneity" test that is the decision to use the work was made by the teacher so near the time the material was to be used that it would be unreasonable to request permission. The "spontaneity" test only works once. For the purpose of discussing current events, teachers may copy more than three pieces from a newspaper or magazine. Teachers cannot copy workbooks, textbooks, or standardized test or other material meant to be "consumable." Students may not be charged for copies other than to cover the cost of copying.
Fair Use and Video Recordings
Legally obtained DVDs and videos may be shown in class for educational purposes. You may also make compilations of DVDs and videos to show in class as long as the originals were obtained legally. DVDs and videos from other regions may be shown in class if they were legally obtained. However, recordings made of televised programs may only be shown within 10 days of recording and must be erased within 45 days unless permission is obtained from the copyright owner.
Fair Use and images and songs
The fair use of images and songs is complicated. The problem is the amount used. An image is an entire work and a single line from a song is a large portion of the work. It is wise to use public domain images where ever possible and avoid quoting songs. Flickr has some photos with Creative Commons licenses which can be used for non-commercial purposes with attribution. You can search for these at www.flickr.com/creativecommons. Wikipedia has a selection of Public Domain Image Resources that may be reliable.
Play it safe, fill out the checklist.
Fair use is a complex issue and it is difficult to remember all the details. Columbia University has provided an outstanding Introduction to Fair Use and a Fair Use Checklist. This checklist was created by Kenneth D. Crews of Columbia University and Dwayne K. Butler of the University of Louisville and is provided for your use through a Creative Commons AttributionOnly License. The checklist will help you determine if your proposed use is fair use. We highly recommend filling out the checklist and keeping a copy on file should any issues arise.
How do I get permission to use copyrighted material?
If you fill out the checklist and discover you need permission to use the material in question, you must write the copyright owner to get permission and the response must be in the form of a hard copy by fax or mail. Most publishers have an office dedicated for such requests. If you are unable to locate the owner, you may search the Copyright Office's online catalog for copyrights issued since 1978 at Copyright Records. For copyrights registered prior to January 1, 1978, you can request that the Copyright Office search the catalog for a fee, also at Copyright Records. If the copyright is not registered, you should make a reasonable effort to identify and contact the author. The Copyright Crash Course University by Georgia K. Harper from the University of Texas provides a Sample Permission Letter through a Creative Commons Attribution 3.0 License.
It may take more than two months to get a response, so please allow enough time. If you do not receive a response, you may not assume that you have permission to use the material. In this case review your use and fair use analysis.
- Can you substitute another resource?
- Can you modify your use so that it qualifies as fair use?
What if the material I want to use is orphaned or out of print?
Orphaned works, where the copyright owner cannot be found, are a growing problem without a good solution. It is not safe to assume that these works can be used without permission. In this case, reconsider your use.
- Is there another work you can use in place of this work?
- Can you use less of the work and therefore meet the fair use criteria?
- If your original fair use evaluation failed because your use might affect the market for the original, you might be able to argue that there is not a market for the orphaned work.
- Perform a risk-benefit analysis.
Just because a work is no longer in print, it is still protected by copyright law. You need to contact the copyright owner to determine if there are any licensing arrangements.
Can I copy library material?
You may make a single copy of an article or small portion from a longer work for your private use. Copying cannot be used as a substitute for buying the material.
Copyright and Interlibrary Loan
Generally, Interlibrary Loan involves original material such as books, but sometimes copies are requested. Copyright law prohibits systematic copying of material but permits copies for Interlibrary Loan as long as the amount copied is not a substitute for the purchase or subscription of the material. The Commission on New Technological Uses of Copyrighted Works (CONTU) developed guidelines to help educators and librarians comply with copyright law.
A copy may be obtained through interlibrary loan if:
- The original cannot be obtained at a fair price,
- The copy will be the property of the patron,
- The copy will be used for private study, scholarship, or research,
- The copyright warning is prominently displayed,
- The library is not aware of any plan to reproduce and distribute multiple copies,
- The requesting library affirms that it has complied with copyright laws,
- In the case of a journal article, the library must comply with the "rule of 5," that is, it has not requested more than five articles during the current year from a periodical or collective work published in the last five years and,
- Records of requests must be maintained for three years.
If the library requests more than five articles from a periodical or collective work within a year, then it must pay a royalty. The "rule of 5" does not apply if the requesting library has subscribed to the periodical or if the library's copy has been damaged or lost.
All libraries must display the copyright notice by copying machines. This notice reads:
Notice: Warning concerning copyright restrictions. The copyright law of the United /states (Title 17, United States Code) governs the making of photocopies or other reproductions of the copyright material under certain conditions specified in the law, libraries and archives are authorized to furnish a photocopy or other reproduction. One of these specified conditions is that the photocopy or reprodcution is not to be "used for any purpose other than private study, scholarship, or research." If a user makes a request for, or leter uses, a photocopy or reproduction in excess of "fair use", the user may be liable for copyright infringement. This institution reserves the right to refuse to accept a copying order if, in its judgment, fulfillment of the order would involve violation of copyright law.