Copyright in the Digital Age: Guidance for W&L Faculty

I. COPYRIGHT BASICS

What is copyright?

A bundle of legal rights regarding an original work, including: reproduction, distribution, performance, adaptation, use in derivative works, and display. In other words - copyright is the right to CONTROL how the work is used.

What is considered "reproduction" for purposes of copyright?

According to the U.S. Copyright Office, reproduction can take two different forms:

• The making of copies: by photocopying, making microform reproductions, videotaping, or any other method of duplicating visually-perceptible material and
• The making of phonorecords: by duplicating sound recordings, taping off the air, or any other method of recapturing sounds.

How long does copyright protection last?

Generally, for the copyright owner's lifetime PLUS seventy years...but that general rule has lots of exceptions for works published during the effective dates of several different copyright laws, so it is best to check with a librarian. You may also consult the following guidance posted by the Cornell Copyright Information Center: https://copyright.cornell.edu/resources/publicdomain.cfm.

What can be protected by copyright?

Original works of authorship fixed in a tangible medium of expression. Not just an idea, but one that has been converted into some tangible form. To be protected by copyright, the material must be an original work with some degree of creativity. For example, phone book listings are NOT protected, but phone book art, design, or a collage using phone book pages would be protected. Copyright protects not only literary works, but also materials that are artistic, architectural, sculptural, musical, dramatic, etc.

Q: How does a person "copyright" a work?

Copyright is not a verb - it just happens! If you have created a work, it is copyrighted and has copyright protections. No longer does copyright require notice, a copyright symbol, publication, or registration with the U.S. Copyright Office. However, for works published prior to March 1989, some of those conditions may affect the length of your copyright protection.

Does W&L have a policy for the use of Copyrighted Materials?

Yes. The University policy on permissible uses of copyrighted material is available at: http://library.wlu.edu/about/policies/permissible-uses-of-copyrighted-material.

II. DETERMINING IF A WORK IS PROTECTED BY COPYRIGHT

If I find something online can I assume there's no copyright?

No. Because copyright does not require registration or any special marks like the © and since adding a work to a web page qualifies as "fixation" for copyright protection, most work is under copyright.

What steps should I take before using materials I did not create?

First, determine whether the materials are UNPROTECTED-meaning they are NOT subject to a copyright - and are in the public domain. Resources for determining whether a work is in the public domain are available at: https://copyright.cornell.edu/resources/publicdomain.cfm.

Is there a rule of thumb for determining whether material is protected by copyright?

If a work was created BEFORE 1923, it is likely to be in the public domain. However, copyright does NOT require: notice or a copyright symbol; registration with the U.S. Copyright Office; or publication. Just because those indicators are not present does NOT mean the material is unprotected.

What online resources are available to determine if materials are protected by copyright?

The U.S. Copyright office has a free, online search catalog for all works and documents recorded with the U.S. Copyright Office since January 1, 1978. It also provides guidance for locating information records for works and documents in existence prior to January 1, 1978. Access is available at: http://www.copyright.gov/records/.

III. OPTIONS FOR LAWFULLY USING COPYRIGHTED MATERIAL

If the material I want to use is protected by copyright, how can I determine if I can use it in my project or course?

Probably the easiest thing to do is to find out whether a Creative Commons license exists for the material you want to use. Creative Commons is an organization that allows creators to license use of their materials for various purposes with attribution. Access is available at http://creativecommons.org. Creative Commons also offers a resource for finding licensed material at: http://search.creativecommons.org. Note: This is NOT a search engine, but it offers easy access to search services provided by other independent organizations.

What are Creative Commons licenses?

There are six core Creative Commons licenses to choose from; these vary in the amount of freedom users have with respect to a work. Details are provided below and can also be reviewed at: http://creativecommons.org/licenses/. The licenses can be applied to any work that is covered by copyright law including books, scholarly articles, movies, musical arrangements, and artwork.

The six core Creative Commons licenses of vary in openness/restrictiveness. They are (in order of increasing restrictiveness):Attribution - "CC BY"

This license lets others distribute, remix, tweak, and build upon a work, even commercially, as long as they credit the original author for the original creation. This is the most accommodating of licenses offered, in terms of what others can do with a work licensed under Attribution.

1. Attribution - "CC BY"
   • This license lets others distribute, remix, tweak, and build upon a work, even commercially, as long as they credit the original author for the original creation. This is the most accommodating of licenses offered, in terms of what others can do with a work licensed under Attribution.
2. Attribution Share Alike - "CC BY-SA"
   • This license lets others remix, tweak, and build upon a work even for commercial reasons, as long as they credit the original author and license their new creations under the identical terms. This license is often compared to open source software licenses. All new works based on a work licensed this way will carry the same license, so any derivatives will also allow commercial use.
3. Attribution-Non-Commercial - "CC BY-NC"
   • This license lets others remix, tweak, and build upon a work non-commercially, and although their new works must also acknowledge the original author and be non-commercial, they don't have to license their derivative works on the same terms.
4. Attribution Non-Commercial Share Alike - "CC BY-NC-SA"
   • This license lets others remix, tweak, and build upon a work non-commercially, as long as they credit the original author and license their new creations under the identical terms. Others can download and redistribute this work just like the by-nc-nd license, but they can also translate, make remixes, and produce new stories based on the work. All new work based on the original will carry the same license, so any derivatives will also be non-commercial in nature.
5. Attribution No Derivatives - "CC BY-ND"
   • This license allows for redistribution, commercial and non-commercial, as long as it is passed along unchanged and in whole, with credit to the original author.
6. Attribution Non-Commercial No-Derivatives - "CC BY-NC-ND"
   • This license is the most restrictive of the six main licenses, allowing redistribution. This license is often called the "free advertising" license because it allows others to download works and share them with others as long as they mention the original author and link back to them, but they can't change them in any way or use them commercially.

How do I properly attribute material offered under a Creative Commons license?

All CC licenses require users to give proper attribution to the creator of licensed material, unless the creator has waived that requirement, not supplied a name, or asked that his/her name be removed. Users must also retain the copyright notice, a link to the license and a license notice. For more information visit: https://wiki.creativecommons.org/Best_practices_for_attribution.

The material I want to use is protected and is not made available through a Creative Commons license. Do I have other options?

Yes. You can always contact the copyright owner and seek permission directly. Otherwise, the doctrine of "fair use" may apply to allow your use without permission or (for in-class showings/presentations) there may be a specific exception that will apply. For public performance rights to show movies outside of class, the University may have a license to do so. See the Questions and Answers that follow.

What is Fair Use?

Generally speaking, fair use is any copying of copyrighted material done for a limited and "transformative" purpose, such as to comment upon, use for a limited classroom teaching purpose, criticize, or parody a copyrighted work. Such uses can be made without permission from the copyright owner. If your use qualifies as a fair use, then it would not be considered an illegal infringement of copyright.

How do I know if what I'm doing qualifies as Fair Use?

Unfortunately, the only way to get a definite answer on whether a particular use is a fair use is to have it resolved by a judge. Judges use four factors to resolve fair use disputes, as discussed in detail below. It's important to understand that these factors are only guidelines that courts are free to adapt to particular situations on a case‑by‑case basis.

1. The PURPOSE and character of your use
   • Favors Fair Use: Teaching; research; scholarship; nonprofit education institution
   • Opposes Fair Use: Denying credit to original author; commercial activity; profiting from use; entertainment; bad-faith behavior
2. The NATURE of the copyrighted work
   • Favors Fair Use: Published works; important to favored educational objectives
   • Opposes Fair Use: Unpublished work; highly creative work (art, music, novel, film, play)
3. The AMOUNT and substantiality of the portion taken, and
   • Favors Fair Use: Small quantity; amount is appropriate for favored educational purpose
   • Opposes Fair Use: Large portion or whole work used; portion used is central to or "heart of" the work
4. The EFFECT of the use upon the potential market.
   • Favors Fair Use: User owns lawfully purchased/acquired copy of original work; one of few copies made; no significant effect on the market or potential market for copyrighted work; no similar product marketed by the copyrighted holder; lack of licensing mechanism; lack of licensing mechanism
   • Opposes Fair Use: Numerous copies made; accessible on the Web or in other public forum; repeated or long-term use; affordable permission available for using work

http://fairuse.stanford.edu/overview/fair-use/

Does the "fair use" doctrine allow me to use copyrighted material in an unrestricted manner so long as the use is for an educational purpose?

No. An educational use of a copyrighted work does not necessarily fall under fair use. You need to make a good faith assessment in applying the four factors set out above to your use of the copyrighted material. Ask yourself if an objective, reasonable person would consider your use to qualify as fair use. Here are a couple helpful tools:

• https://ogc.harvard.edu/pages/copyright-and-fair-use
• https://www.lib.umn.edu/copyright/fairthoughts

Is there reduced liability for academic fair use if my use is later found to be infringing?

Yes. Congress added a provision to encourage teachers and librarians to use fair use where it reasonably can apply. Under federal copyright law, "'statutory damages,' which are the largest liability in most infringement cases, must be remitted to $0 if the person found to be infringing is BOTH an employee of a non-profit educational institution acting within the scope of his or her employment AND had a good faith belief that the use they made of the copyrighted material was for fair use. Good to know, but this should NOT be considered blanket permission to claim fair use where it doesn't reasonably apply.

What is the "in-class" exception for using materials protected by copyright?

Copyright law places a high value on educational uses. The Classroom Use Exemption (17 U.S.C. §110(1)) only applies in very limited situations, but where it does apply, it gives some pretty clear rights. To qualify for this exemption, you must:

1. Be in a classroom (‘or similar place devoted to instruction').
2. Be there in person, engaged in face-to-face teaching activities.
3. Be at a nonprofit educational institution.

For more information visit: https://www.lib.umn.edu/copyright/limitations.

What activities qualify for the "in class" use exception to copyright?

Use of film and video is permitted in an educational institution so long as all of the following conditions are met:

1. The film must be shown as part of the instructional program.
2. The film must be shown by students, instructors, or guest lecturers, and can only be shown to students and educators.
3. The film must be shown either in a classroom or other school location devoted to instruction.
4. The film must be shown either in a face-to-face setting or where students and teacher(s) are in the same building or general area.
5. The film shown must be a legitimate copy, with the copyright notice included.
6. Films or videos may not be used for entertainment or recreation.

For example, the exception would NOT apply if: a professor planned to show a film in the Stackhouse theater, and said, "I'm going to invite my class AND the general public." Inviting the public takes this use outside the protection of the "in class" exception. The exception WOULD apply, however, if a professor planned to invite his class to his home to watch the film. Although literally being in a classroom is NOT required, the use must be for a legitimate educational exercise to qualify for the "in class" exception.

For more information, visit: http://www.xavier.edu/library/students/documents/copyright_video.pdf.

If I post something behind password protection - requiring a W&L login - does that cover all the copyright issues?

No. Password protection is important. It substantially improves a fair use claim and you must use it to qualify for the TEACH Act exception (distance education). But password protection alone does not solve all copyright issues. You should still make a fair use analysis or seek permission to use.

If I own a copy of a movie or had it checked out from the library, am I permitted to show the entire length of the movie to my students in my classroom?

Yes, you are permitted to show an entire movie without first obtaining permission from the copyright holder if it satisfies the "in class" exception outlined above. See 17 U.S.C. § 110(1).

If I want to show a movie open to the public, outside of a class, what do I need to do?

W&L has purchased or licensed public performance rights for some films. Information on these public performance rights can be found at http://library.wlu.edu/services/#faculty. For other films, you may need permission or to purchase the public performance rights (see contact information in the introductory paragraph to the W&L Library Public Performance Rights section at the faculty services link above).

Am I permitted to digitize an entire movie contained in a DVD that I have legally purchased, upload it to the University's server, and allow my students to stream it on their personal computer as a part of my class, so long as I restrict access of the digitized copy to the students currently enrolled in my class?

No. You are not permitted to upload the entire length of a movie and allow students to stream it on their personal computer. However, you are permitted to stream:

1. performances of non-dramatic literary or musical works, excluding operas, music videos, and musicals, in their entirety, and
2. limited portions of any other work (i.e. streaming short clips of a movie is permissible). See 17 U.S.C. § 110(2); 37 C.F.R. § 201.40(b)(1)(i).

Can I show a YouTube video to my class?

Yes. Using YouTube to demonstrate pedagogical points is fine; however, do not use YouTube videos that contain infringing content just as you would not use any other type of infringing content. YouTube is particularly rife with such material despite YouTube's best efforts. The best way to handle a YouTube video is to link to it. Using YouTube's embedded code for linking is also fine.

What are some best practices with respect to using images?

1. Use thumbnails or low-resolution images
2. Give attribution to the source or creator of the image
3. Limit access to the image by requiring viewers to log in with W&L credentials
4. Make a good faith effort to comply with creator's copyright

Am I allowed to link to something I find online?

Unless you have reason to know that a particular page is infringing you are generally free to link to anything you find online without worrying about copyright.

Can I make photocopies of an article for my students for classroom use?

Yes. It is permissible to make photocopies for one-time distribution in class, subject to the following limitations:

1. Make no more than one copy per student;
2. Include copyright notice on each copy;
3. Not charge students beyond actual cost of photocopying; and
4. Comply with the tests for 'brevity,' 'spontaneity,' and 'cumulative effect.'

Under what circumstances must I obtain permission from the copyright holder before photocopying an article for classroom use?

If you intend to make photocopies for a course pack and repetitive copying (i.e., copying of same material from term to term), you must obtain prior permission from the copyright holder. Works that are considered, "consumable" (workbooks, exercises, tests, answer sheets, etc.) must not be photocopied unless you have obtained permission from the copyright owner.

May I record a copyrighted television program in its entirety and show it to my class?

Yes, with restrictions. Congress has created a special exception about this practice, for nonprofit educational institutions. Off-air recordings may be used by individual teachers in the course of relevant teaching activities, and repeated once only when instructional reinforcement is necessary, in classrooms and similar places devoted to instruction, during the first ten school days after the program was recorded. The recording must contain a notice of copyright. It may not be retained longer than 45 days. For more information visit: http://www.xavier.edu/library/students/documents/copyright_video.pdf.

If I own a legally obtained copy of a movie on VHS or some other outdated analog format and would like to digitize that copy for the library reserve, am I permitted to do so?

It is permissible to digitize a copy of a VHS movie ONLY IF there is no digital version available for purchase, or the digital version that is available is subject to technological protection measures. However, the digitized copy CANNOT be made available to students or other public members outside the premises of the library. Therefore, even after digitizing the movie, students must physically be in the library to watch the movie. See 17 U.S.C. §§ 108 & 112(f)(2).