Copyright Issues for Electronic Resources

Disclaimer:

Copyright is a complex issue, delineated and argued by those with recognized expertise and legal credentials. Since this document is created by Information Services, and not by an attorney or any other officer of the law with such recognized credentials, it should not be regarded as an official legal document providing the complete and absolute parameters of copyright law.

This guide, offered to students and faculty as they proceed to create multimedia materials to be made available through the Internet, is meant to promote compliance with copyright law. The information provided here errs on the conservative side of the law so as to avoid potential legal ramifications. A list of Web sites concerned with copyright law is provided at the end of this guide.

Copyright and Infringement:

Copyright is a collection of legally binding parameters which afford the creator of an original work the retention of the exclusive rights:

To reproduce it;
To distribute copies of it (by sale, rental, lease, or lending);
To perform or display the work publicly;
To prepare further derivative works based upon the original.

Where in the past, registration of a work and/or the inclusion of a notice were required for it to be included within the encompassing guidelines of copyright protection, this is now achieved automatically when an original work of authorship is fixed in a tangible medium of expression. The term of the protection of these rights for any work created before 1978 lasts 95 years. In comparison, any work created during or after 1978 is protected for the life of the author plus 70 years.

However, as staunch as copyright protection may seem, denial of the use of a copyrighted work by anyone other than the author or someone to whom s/he has granted a license is not so absolute. Three circumstances allow for the use of a work by someone other than the author, without the need to gain a license:

If the use is fair use;
If the work used is in the public domain;
If the material used is factual or an idea.

Of these three, "Fair Use" is the one which provides the most latitude when using copyrighted materials for educational purposes. Yet, it is also the one which creates the most indefinite arena in which to consider that use.

Fair Use:

Fair use is that circumstance within which exceptions for educational use of copyrighted materials are made. These include criticism, comment, news reporting, teaching, scholarship or research. Yet, be aware that compliance with such exceptions is decided neither arbitrarily nor within a framework of absolutes. Rather, each case is interpreted using four factors to weigh and balance where infringement is in question. This procedure allows for creative and responsible conclusions to be attained regarding the lawfulness of the activities in question.

These four factors are:

The purpose and character of the use. The use of the copyrighted work in question should be for nonprofit educational purposes, not for commercial profit, to gain the favor of this factor.
The nature of the copyrighted work. The nature of a copyrighted work used for educational purposes should not be one of a commercial nature directed at an educational market to gain the favor of this factor, since reproducing the copyrighted work in some form may prevent the creator of the original work remuneration for his/her efforts.
The amount and substantiality of the portion used in relation to the copyrighted work as a whole. In terms of quantity, the more of the original that one uses, the more one approaches the infringement of its copyright protection, and hence, disfavor in the balance of this factor. Likewise, in terms of quality, should the portion of the original that one uses be "the heart of the work," albeit small, the closer one comes to infringing on the copyright protection of that work. Such a condition also falls within the disfavor of the balance of this factor.

A rule of thumb for limiting the amount of different types of works that can be used is the following:

Motion Picture: up to 10% or 3 minutes of a copyrighted motion media work may be reproduced or incorporated into a project.
Text material: up to 10% or 1000 words may be used; a poem of less than 250 words may be used; no more than three poems by the same poet, or five poems by different poets from an anthology.
Music, Lyrics, and Music Video: up to 10%, but no more than 30 seconds, of the music and lyrics from a musical work may be used. Any alteration shall not change the basic melody or the fundamental character of the work.
Illustrations and Photographs: a photograph or illustration may be used in its entirety but no more than 5 images by the same artist/photographer may be used. From a published collective work, no more than 10% or 15 images, whichever is less, may be used.
Numerical Data Sets: up to 10% or 2500 fields or cell entries from a copyrighted database or data table may be used.

The effect of the use upon the potential market for, or value of, the copyrighted work. In general, should the use of the copyrighted work negatively impact the potential market for its sale, or its value, it would fall to the side of disfavor for this factor.

Copyright in an Online Environment:

"Fair Use", as a forum in which to consider the educational use of copyrighted works against potential infringement, is flexible enough to take into account the variety of mediums in which those works come to exist: print, text, stills, graphs, sound, video, music, animated clips, etc. However, the expanding development of multimedia materials, where any number and variety of copyrighted works may be incorporated into a single effort, is increasing the complexity of potential copyright infringement, and in turn, testing the limits of "Fair Use" flexibility. Pushing the envelope of "Fair Use" still further, is the opportunity to make these multimedia works broadly available through the Internet. While "Fair Use" continues to be a reliable touchstone when integrating material into a multimedia work - considering each work individually - and for making that work, or any other single work, available through the Internet, questions about the potential infringement upon copyrighted works when doing so have escalated beyond its scope. Such tension has predictably given form to a number of recommendations that may soon be feathered into the "Fair Use" forum for the purpose of addressing the educational use of these new developments. For the time being, these recommendations are offered in the spirit of this guide:

Since "Fair Use" holds that copyrighted materials used for educational purposes must be a regular part of mediated instruction, limiting access of the materials only to those students who are the intended recipients is tantamount with compliance. Fulfilling this term of "Fair Use" in an online environment can be accomplished through the use of password protection to prevent unauthorized use.
Even with password protection in place, however, limiting the number of copies made available remains an issue. This concerns the number of copies made available to students and their potential use of those copies. While limiting copies made available to students is easily achieved through placing an electronic copy of any part of a copyrighted work on a central media server, limiting their use of that copy is less than enforceable. Although a copy of the copyrighted work cached in the RAM memory of any computer that downloads it has been accepted as a necessary part of the overall use of the technology, a problem arises with preventing the student from reproducing the read-only copy for other than its intended purpose. To curb the potential misuse of the downloaded copy, it behooves faculty to include some notice that informs students that the material used maybe copyrighted, is part of the instruction, and not for distribution. Even if only a short excerpt is used, it is a good practice to give some form of attribution to the author.

Indicative of support for the above recommendations, and perhaps foreshadowing their eventual rise as a legal requirement for "Fair Use" consideration of copyrighted materials online, "The Digital Millennium Copyright Act" prohibits anyone from circumventing a "technological measure" that controls access to copyrighted works and prohibits removal of "copyright management information."
More a courtesy than a recommendation, whenever using frames to design a Web site, open those Web sites to which you have created a link as a new Web page rather than within your own frame. Doing so will avoid the impression that you own or control that Web site. An additional disclaimer to offer attribution for the linked site also helps to drive home the point.

Keeping Others from Infringing on Your Work:

As important as it is not to infringe on the copyrights of others, faculty and students should consider taking measures to protect against infringement on their own works. For one, place the copyright protection on your own work. The correct form for a notice is: "Copyright [dates] by [author/owner]. The word "Copyright" can be substituted by the Circle-C "©" symbol, but do not use "(c)" as a substitute.

Related Web sites for Further Consideration:

10 Big Myths about copyright explained

Contradiction in copyright and 11th amendment

Explaining consequences of copyright infringement to teachers

Fair Use: Overview and Meaning for Higher Education

Fair Use of Copyrighted Works

FindLaw

I*M Europe Legal Issues - Intellectual Property

Princeton Univ. Press v. Michigan Doc. Servs.

Scholarly Electronic Publishing

Stanford University Libraries: Copyright & Fair Use

Terry Carroll - Copyright FAQ and Copyright Resource Page

The Copyright Licensing Agency

UMass FLRC Copyright References

US Code: Title 17

Welcome to Copyright Clearance Center Online

Technology Instruction | Publishing Information on the Web | Other Resources

Last updated March 7, 2000. Content by David Lavoie