(United States Constitution, Article I, Section 8)

The United States Copyright Act of 1976 and its amendments attempt to balance the rights of the author of published and non-published materials with the users of these materials. Each of us plays these two seemingly opposing identities in the pursuit of teaching, learning, and research. It is to our personal benefit to become knowledgeable about copyright and the responsibilities and protections it provides.

WHAT IS COPYRIGHT?________________________

The essential element of the U.S. Copyright Act is provided in section 106, which clearly states the exclusive rights of the copyright owner to do and to authorize the following:

• Reproduce the copyrighted work ;
• Prepare derivative works from the copyrighted work ;
• Distribute copies of the copyrighted work to the public ;
• Perform the copyrighted work publicly (if it is a literary, musical, dramatic, or choreographed work or a pantomime, motion picture or audiovisual work) ;
• Display the copyrighted work publicly (if it is a literary, musical, dramatic, choreographic, sculptural, graphic, or pictorial work - including the individual images of a film - or a pantomime);
• And in the case of sound recordings, perform the copyrighted work publicly by means of a digital audio transmission.

The copyright owner retains these rights for a designated period of time before they fall into the public domain. Initially these may seem extremely prohibitive to the scholars and students seeking to use these copyrighted materials. The doctrine of fair use, embedded in section 107 of the Copyright Act, addresses this conflict and provides a balance between these competing interests in the laws attempt to "promote the progress of the science and useful arts." Knowledge of these principles and how they apply within the educational environment provide the flexibility required in undertaking scholarly teaching and research.

How do I know if a work is protected by copyright?

The terms of copyright for the majority of works vary according to the type of authorship, the type of work, whether it was created before or after the 1976 Act, before or after the 1998 Copyright Term Extension Act, and whether the work is published or unpublished. Copyright protection arises automatically when any "original" work of authorship is "fixed" in a tangible medium of expression. Facts and "ideas" are not protected by copyright. The copyright symbol "(c)" does not have to appear on an original work to receive copyright protection. Registration with the Copyright Office is optional, but does provide some enhancement to the owner's rights during litigation.

The Sony Bono Copyright Extension Act of 1998 has recently expanded the rights of copyright owners. The resulting term extensions are reflected in When Works Pass into the Public Domain compiled by Laura Gasaway, Director of the Law Library & Professor of Law, University of North Carolina

There have been a number of amendments and additions to the Copyright Act of 1976. These reflect the changing character of copyright and the evolution of technology. A number of excellent Internet sites and printed materials have been created to assist individuals and organizations in keeping up-to-date on these changes. These sites also assist individuals in the interpretation of copyright law. Each scenario involving copyright issues is unique, and therefore it is generally considered that the individual(s) and organization(s) most directly involved are best able to evaluate their own situation. An annotated list of Internet sites, Internet Resources for Teaching and Research and Copyright: A List of Print Titles Available at Shain Libraryprovide additional information regarding copyright.

WHAT IS FAIR USE?________________________

The Copyright Act sets forth exceptions that permit the use of protected works without permission from the copyright owner. The most popular exception is fair use. Fair use is the exception that most frequently supports the use of copyrighted materials for study, teaching and research within an educational setting. A familiarity and understanding of fair use may save countless hours spent in seeking permissions for the use of copyrighted materials! The fair use statute is as follows:

Section 107 of the Copyright Act of 1976. Limitations on exclusive rights: Fair use

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 in 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:

• the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
• the nature of the copyrighted work;
• the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
• 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.

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Fair use is one of the more complex and challenging aspects of copyright law. Every situation in which copyrighted material is used is different, and every circumstance needs to be analyzed on its own merits, to determine whether fair use applies.

In determining fair use, each and all of the above four factors must be considered: purpose, nature, amount and effect. During legal analysis, each component is carefully weighed, and the overall outcome provides the final decision. A careful, good-faith effort must be made to weigh and balance these, to conclude whether or not fair use can be applied.

Kenneth Crews, Indiana University-Purdue University at Indianapolis, provides the following brief explanation of the four factors in his "Fair Use: Overview and Meaning for Higher Education"

• Purpose
  Non-profit, educational use is favored over copies made for commercial or entertainment purposes, or for monetary profit. Use in research, scholarship and news reporting is favored.
• Nature
  Factual works are more favored than fictional, or creative works. Published works are favored over unpublished works.
• Amount
  This is potentially the most confusing area. Small amounts or portions are favored over large amounts, large sections, or entire works. However, there are no statutory "amount used" formulas. In addition, if one takes the "heart of the work", the quality, in addition to the quantity, of the amount used becomes a factor. Look in the Digital Multimedia and Distant Learning sections for more guidance in these areas.
• Effect
  If the use of the copyrighted material has a significant negative effect on the sale, market, or potential profit to the copyright owner, then it weighs against fair use.

Fair use is hardly ever clear-cut, and different people might arrive at different conclusions for the same set of circumstances. Effect is often the basis for copyright litigation because of the financial impact it may have on the copyright holder's ability to produce income.The Fair Use Checklist by Kenneth D. Crews and Dwayne K. Buttler, Indiana University is an excellent tool to help individuals determine if fair use applies in using copyrighted works.

Fair Use Resources Online

·         Fair Use of Copyrighted Materials (University of Texas System)
URL: http://www.utsystem.edu/ogc/intellectualproperty/copypol2.htm

·         Fair Use for Teaching and Research (Indiana University)
URL: http://www.iupui.edu/~copyinfo/fairuse.html

·         Fair Use: Overview and Meaning for Higher Education (Kenneth D. Crews, Indiana University)
URL: http://www.iupui.edu/~copyinfo/highered2000.html

·         Connecticut College. Information Services. Dean's Term 2000.
Copyright Issues for Electronic Resources
URL: http://www.conncoll.edu/is/training/web/resources/copyright.html

PERMISSIONS________________________

The process for obtaining copyright permission essentially involves contacting the copyright holder for permission to use the work under a defined set of circumstances. Each individual item within a collective work must be researched to obtain permission, whether an article in a printed coursepak or a musical performance as part of a multimedia CD-ROM. This usually involves contacting the individual author or publisher in writing to obtain the appropriate permissions. Remember that works in the public domain do not require permission! Also, carefully review and consider the fair use guidelines before seeking unnecessary permissions. Careful planning is essential to the success of this process!

Information Services provides a service to assist faculty at Connecticut College in obtaining permission for materials to be placed on course reserve. A printable copy of the The Reserve Copyright Clearance Form is available online. Information concerning the process for obtaining copyright permission may be obtained from the Reserve Supervisor in Shain Library, Carol Strang or phone, 439-2663. College community members are individually responsible for obtaining copyright permission for all other materials.

The Professional Center Library for Law and Management, Wake Forest University Has developed the Copyright Permission Pages to make the process easier. This site provides links to the copyright permission web pages of publishers and journals, and includes forms, letter and other related resources. The U.S. Copyright Office also provides a page with links to major copyright licensing organizations and publications rights clearinghouses.

Go to: Internet Resources for Copyright and Fair Use

Go to: Copyright: A List of Print Titles in Shain Library