COPYRIGHT FOR FACULTY
Clemson University General Counsel’s Office
September 10,
Brief Summary of Copyright
Fundamentals
What is copyright?
Copyright
protection is
provided
under federal
law for
“original
works of
authorship.” It
gives the
owner of
copyright the
exclusive right
to do and to
authorize
others to:
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Reproduce the work in copies or
phonorecords;
Prepare derivative works based on the
work;
Distribute copies or phonorecords to the
public by sale, transfer of ownership,
rental, lease or lending;
Perform the work publicly;
Display the work publicly
Why should faculty care about
copyright law?
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You are creators and users of copyrighted works.
Significant penalties can be imposed for copyright
infringement.
Copyright law may restrict how faculty can use
copyrighted works in their teaching, research and
writing.
Copyright law offers a number of exceptions that
can apply in an educational setting.
What does copyright protect?
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Literary works (books, articles, and software programs);
Musical works including accompanying words;
Dramatic works including accompanying music;
Pantomimes and choreographic works;
Pictorial, graphic, and sculptural works;
Motion pictures and other audiovisual works;
Sound recordings; and
Architectural works (plans and drawings and buildings
themselves) 17 USC section 102(a)
What are the requirements for
copyright protection?
It must be “original”
 Reflect a minimal
degree of creativity
and
 Not have been copied.
It must be “fixed in a
tangible medium of
expression.”
 Its embodiment is
sufficiently permanent or
stable to permit it to be
perceived, reproduced
or otherwise
communicated for a
period of more than
transitory duration.
What does copyright NOT protect?
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Works not fixed in a tangible form of expression
(improvisational speeches or performances that have
not been written or recorded);
Titles, names, slogans or short phrases; common
symbols or designs; mere listings of ingredients or
contents;
Works consisting entirely of “common property” and
no original authorship such as standard calendars,
height and weight charts, tape measures , rulers etc.;
Ideas, procedures, processes, systems, methods of
operation, concepts, principles, or discoveries (17
U.S.C section 102(b))
How to secure a copyright
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Copyright is secured automatically when the work is created.
Publication is no longer required.
A work is created when it is first fixed in a copy or phonorecord.
Copies are material objects, other than phonorecords, in which a
work is fixed, and from which the work can be perceived,
reproduced, or otherwise communicated, either directly or with the
aid of a machine or device. (books, manuscripts, film, sheet music,
videotape, or microfilm).
Phonorecords are material objects in which sounds are fixed other
than those accompanying a motion picture or audiovisual work
(cassette tapes, CDs or LPs). (17 USC section 101)
Example - A song (the “work”) can be fixed in sheet music or in
phonorecords or both.
Copyright Notice – No longer required
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The requirement of a copyright notice ended as of
March 1, 1989 after the United States became a
signatory to the Berne Convention.
However, copyright notice can still impact the
copyright status of older works.
Use of a copyright notice informs the public that a
work is protected, identifies the copyright owner
and the first date of publication. It can also
prevent a defense of innocent infringement.
Example – Copyright 2010 Jane Doe
Copyright Registration
Copyright registration is the process of making a public
record through the US Copyright Office of the facts
related to a particular copyright. Although registration is
not required, there are benefits to copyright registration:
 Registration is necessary for works of US origin before
an infringement action can be filed in court.
 If made before or within 5 years of publication,
registration will establish prima facie evidence of the
validity of the copyright and the facts stated in the
certificate of registration.
Copyright Registration continued
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If registration is made within 3 months after
publication of the work or prior to an infringement,
statutory damages and attorney fees are
recoverable. If this requirement is not met, only
actual damages can be recovered.
Once registered with the US Copyright Office, the
owner can record registration with the US Customs
Service and obtain protection against the
importation of infringing copies.
How long does copyright protection
last? Summary of General Rules
PROTECTED FROM:
For works created after
1/1/78 - Date of creation
(date first fixed in a copy or
phonorecord)
TERM:
 For works authored by an
individual - life of the
author + 70 years.
 Two or more authors – 70
years after surviving
author’s death.
 For a “work for hire” or
anonymous or
pseudonymous works the shorter of 95 years
from publication, or 120
years from creation.
Works created before 1/1/78 but not
published or registered by that date
PROTECTED FROM:
TERM:
1/1/78 – these works
have been brought
under the statute and
given federal copyright
protection.
Generally it is the same
as for works created
after 1/1/78:
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Life + 70 years or
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95/120 years
NOTE: For more detailed information
about copyright duration see:
Library of Congress Copyright
Office, Circular 15A, Duration of
Copyright (Washington D.C. Library
of Congress August 2010)
http://www.copyright.gov/circs/circ15a.pdf
Works created and published with
notice or registered before 1/1/78
PROTECTED FROM:
TERM:
When published with notice or on the
date of registration if the work
was registered in unpublished form.
28 years for the first term
and 67 years for the
second term if renewed.
For works secured
between 1/1/64 and
12/31/77, the second
term is renewed
automatically.
NOTE: For more detailed information
about copyright duration see:
Library of Congress Copyright
Office, Circular 15A, Duration of
Copyright (Washington D.C. Library
of Congress August 2010)
http://www.copyright.gov/circs/circ15a.pdf
Public Domain
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Once the applicable copyright term has expired, the
work passes into the “public domain” and may be
freely used by anyone for any purpose.
Any work that was first published in US before 1923
is now in the public domain under US law.
Any work published in the US without a copyright
notice before January 1, 1978 is in the public
domain. This is not because the term lapsed but
because the work was already in the public domain
under the prior law.
Public Domain continued
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“Publication” means “the distribution of copies or
phonorecords of a work to the public by sale or other
transfer of ownership, or by rental, lease, or lending. The
offering to distribute copies or phonorecords to a group
of person for purposes of further distribution, public
performance, or public display constitutes publication. A
public performance or display of a work does not of itself
constitute publication.” (17 USC section 101)
Works created by federal officers or employees as part
of their official duties such as presidential speeches,
congressional reports, and federal judicial opinions are in
the public domain.
Exceptions to Copyright Protection
Copyrighted Works – Face-to-face
teaching
The following is not an infringement of copyright:
“performance or display of a work by instructors or
pupils in the course of face-to-face teaching activities
of a nonprofit educational institution, in a classroom or
similar place devoted to instruction, unless in the case of
a motion picture or other audiovisual work, the
performance, or the display of individual images, is
given by means of a copy that was not lawfully made
under this title, and that the person responsible for the
performance knew or had reason to believe was not
lawfully made;” (17 USC section 110(1))
Copyrighted Works – Face-to-face
teaching continued
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Therefore, faculty and students do not have to seek
permission to perform or display any copyrighted work
in the course of face-to-face teaching in a classroom.
“Perform” means to show a film or video, recite a
poem, read or act out a play, etc. and “display”
means to show a copy either directly or by means of a
projection.
For an audiovisual work it must be a copy that is
lawfully made or purchased.
This exception does not include the right to make or
distribute copies or to make derivative works based on
the works that are performed or copied.
Distance Education – Performance and
Display of Copyrighted Works
The Technology, Education, and Copyright
Harmonization of 2002 (TEACH Act) provides
teachers with safe harbors for distance education.
However, because of the nature of distance education
and the ease in which material can be copied and
distributed, there are more requirements and
restrictions than the exceptions applicable in the faceto-face classroom setting. (17 U.S.C. section 110(2))
Distance Education – TEACH Act
restrictions
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Only “an amount comparable to that which is
typically displayed in the course of a live
classroom session” can be “displayed.”
Nondramatic literary works (poems, novels,
textbooks) and musical works may be “performed”
in their entirety. However, other works may only
be performed in “reasonable and limited
portions.” (Under the TEACH Act you cannot show
an entire film in a Distance Education course, but it
might be considered a Fair Use.)
Distance Education – TEACH Act
restrictions
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Only applies to accredited, non-profit educational
institutions.
The work performed must be from a lawfully made
copy.
The use must be for “live” or asynchronous class sessions.
Access to the works must be limited to students enrolled
in the course “to the extent technologically feasible.”
(Blackboard)
The performance or display must be at the direction of
the instructor as an integral part of a distance
education class session and directly related to the
teaching content of the transmission.
Distance Education – TEACH Act
restrictions
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The use must not include transmission of textbook
materials or other materials developed for online use.
The institution must prevent students from retaining
copies of the materials or distributing copies to others
by implementing “technological measures that
reasonably prevent” these activities. (For example, use
streaming video.)
The institution must adopt a copyright policy and
educate its faculty, students, and relevant staff about
copyright law.
Fair Use – statutorily permitted use of
copyrighted works.
Under section 107 of the Copyright Act:
“the fair use of a copyrighted work. . . for purposes such
as criticism, comment, news reporting, teaching (including
multiple copies for classroom use), scholarship, or
research, is not an infringement of copyright.”
Determining what is a “Fair Use” must be done on a
case by case basis.
Fair Use – Four Factor Balancing Test
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4.
“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 on the potential market for or
value of the copyrighted work.” (17 U.S.C. section
107).
What is the PURPOSE of the use?
Favor Fair Use
Weigh Against Fair Use
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Educational instruction
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Access restricted to students
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Scholarly research, personal use
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Student use to complete
assignment
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Statutory use – education,
criticism, comment, news
reporting
Transformative – use the
material in different manner or
for different purpose
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Commercial use
Profiting from use
For publication
For public distribution
Not transformative – for
same purpose as
originally intended
No attribution to
original authors
What is the NATURE of the use?
Favor Fair Use
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Factual Use
Non-fiction
Scientific Works
Not creative
Weigh Against Fair Use
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Creative, Imaginative or
Artistic Work
Consumable Work –
once used is not
consumable by others
(workbooks,
standardized tests etc.)
Work intended for
publication
What is the AMOUNT of the work?
Favors Fair Use
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Small excerpt, extract
or clip
Only portion used that
is needed for
educational purpose
Not the “heart of the
work”
Weighs Against Fair Use
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Use entire work or
large portion of work
Portion used is the
“heart of the work”
What is the MARKET EFFECT?
Favors Fair Use
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Use helps the market for
the original work
Won’t impact market for
original work
No licensing system in
place
Use does not cause
economic harm to
copyright owner
Weighs Against Fair Use
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Harms market for
original work
If there is a market –
repeated use is problem
Licensing mechanism
exists
Use competes with
original use
Fair Use – Very General Guidelines
The Fair Use Factors are not a math equation. However, the
more factors in favor and the stronger those factors the more
likely you have a fair use.
 Four factors in favor - probably is Fair Use (unless your analysis of
one or more factors is not accurate)
 Three factors in favor - probably is Fair Use (however if one factor
strongly disfavors Fair Use - especially the Market Effect - might not
be Fair Use)
 Two factors in favor - probably not Fair Use – depends on the
factors and how strongly they favor Fair Use
 One factor in favor - very unlikely it is Fair Use
 No factors in favor - not Fair Use
If not Fair Use – need to get permission to use.
Single copies for teaching and
research
Under guidelines negotiated by representatives from
the publishing industry and higher education, it is
generally accepted that faculty may make single
copies of the following for use in scholarly research,
teaching, or preparation for teaching:
 A chapter from a book
 An article from a periodical or newspaper
 A short story, short essay, or short poem
 A chart, graph, diagram, drawing, cartoon or picture from a
book, periodical or newspaper.
This is the minimum that constitutes Fair Use – not the maximum
Multiple Copies for Classroom
Distribution and Use
Under a similar set of negotiated guidelines, it is generally considered Fair Use
for faculty to make copies and distribute them to students for class if they meet
the following tests of brevity, spontaneity and cumulative effect:
BREVITY
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Poetry – complete poem if less than 250 words and printed on not more
than 2 pages or an excerpt of not more than 250 words from a longer
poem.
Prose – a complete article, story, or essay consisting of less than 2,500
words or an excerpt of not more than 1,000 words or 10% of any other
prose work, whichever is less, but in any event a minimum of 500 words.
(Limits for poetry and prose can be expanded to complete a paragraph.)
Illustration – a single chart, graph, diagram, drawing, cartoon, or picture
per book or per periodical issue.
Multiple Copies for Classroom
Distribution - continued
SPONTANEITY
 Copies must be made “at the instance and
inspiration of the individual teacher.”
 The decision to use the work and “the moment of its
use for maximum teaching effectiveness” must be
“so close in time that it would be unreasonable to
expect a timely reply to a request for permission.”
Multiple Copies for Classroom
Distribution - continued
CUMULATIVE EFFECT
 Copying must be for only one course.
 The copying must be limited to one short poem,
story, or essay or two excerpts from the same
collective work or periodical volume.
 No more than nine items may be copied for one
course during one class term.
Multiple Copies for Classroom
Distribution - continued
OTHER PROHIBITIONS
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Each copy must include a notice of copyright.
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“Consumables” such as workbooks, exercises, and tests
may not be copied.
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Copying may not be used to create or substitute for
anthologies, compilations, or other such collective works.
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Copying cannot substitute for the purchase of books,
publisher’s reprints or periodicals.
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Copying cannot be directed by a higher authority.
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Copying cannot be repeated with the same item by the
same teacher from term to term.
Digital Millennium Copyright Act
(DMCA) – Brief Summary
The DMCA is a copyright law passed by Congress in
1998.
 Generally it criminalizes production and
dissemination of technology designed to circumvent
measures that control access to copyrighted works.
It also criminalizes the circumvention of such controls
even if no copyright infringement occurred. (There
are exemptions.)
 It limits liability of on-line providers for copyright
infringement by their users.
Copyright Exemption under the Digital
Millennium Copyright Act (DMCA)
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In July 2010 the Librarian of Congress identified six
classes of works that are exempt from the DMCA
prohibition against circumvention of content scrambling
systems designed to control access to copyrighted
works. Under the DMCA, these exemptions are revised
every three years. One of the new exemptions impacts
higher education.
The full statement published by the Library of Congress
can be found at:
http://www.copyright.gov/1201/2010/Librarian-ofCongress-1201-Statement.html
DVD Copyright Exemption under the
Digital Millennium Copyright Act
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“(1) Motion pictures on DVDs that are lawfully made and
acquired and that are protected by the Content Scrambling
System when circumvention is accomplished solely in order to
accomplish the incorporation of short portions of motion
pictures into new works for the purpose of criticism or
comment, and where the person engaging in circumvention
believes and has reasonable grounds for believing that
circumvention is necessary to fulfill the purpose of the use in
the following instances:
(i) Educational uses by college and university professors and
by college and university film and media studies students;
(ii) Documentary filmmaking;
(iii) Noncommercial videos”
Miscellaneous
Clemson Library E-Reserves
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This is a great resource for print materials that you
want to make available to your students on
Blackboard.
The library will obtain and pay for permission for
the use up to $200 per publication.
http://www.clemson.edu/library/services/reserves/
index.html
Damages for Copyright Infringement
The owner can recover actual damages.
In some cases the owner can recover statutory
damages.
1.
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Between $750 and $30,000 per infringement
For willful infringement the award can be increased to up
to $150,000 per infringement
However, the court shall remit (cancel) statutory damages
if the infringer had reasonable grounds to believe the use
of the work was a fair use and the infringer is an
employee of a nonprofit educational institution. In this
case the copyright owner could only recover actual
damages.
Copyright Infringement vs. Plagiarism
Copyright Infringement
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Violation of federal law
subjects you to legal
penalties.
To avoid - need to either
fall within an exception
to copyright protection
or obtain permission
from the copyright
owner.
Plagiarism
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Violation of university
policy and professional
standards.
To avoid – need to
properly cite sources
and not present another
person’s work as your
own.
Questions
Questions
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Is it always a fair use if I am copying something for an educational
purpose?
No. Just because it is an educational use, does not mean it is a fair
use. The fair use factors should be considered on a case by case
basis.
Can I give my students each a copy of a journal article?
See slides on multiple copies for classroom use. If these do not
apply, evaluate fair use factors. Consider E-reserves.
Can I give my students copies of portions of a textbook?
See slides on multiple copies for classroom use. If these do not
apply, evaluate fair use factors. Since the market for the textbook
could be impacted by this use, this may not be a fair use. The more
you use, the less likely it is a fair use. Consider E-reserves.
Questions
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Can I put a digital copy of an article on Blackboard for my
students?
Possibly, need to evaluate fair use factors. However, for a digital
article you should restrict access to only those students in the course
and limit the duration of the article’s availability. Consider EReserves.
Can I show an entire movie in my classroom?
Yes under17 USC section 110 this type of use is allowed in face-toface instructional settings.
Can I show photographs or play music for my students in my
classroom?
Yes under17 USC section 110 this type of use is allowed in face-toface instructional settings.
Questions
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My department owns some VHS tapes that are
projected in the classroom, but we would like to convert
them to DVD. Is this okay?
I do not believe this would be a fair use. If the VHS is
available on DVD, you would need to purchase the
DVD.
If something is freely available online does that mean it
is not copyright protected?
No. Since copyright protection is automatic, I would
assume it is protected until you determine otherwise
(Federal Government publication, copyright protection
has lapsed and in public domain etc.)
Questions
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Can I quote portions of a book, poem or song in a
published work of my own?
Possibly. Reproducing portions of copyrighted
works for comment or criticism is often allowed
under fair use. However, you should conduct the
fair use analysis for each excerpt you quote.
Sources
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7 United States Code sections 101 et seq.
Association of American Universities, “Campus Copyright Rights
and Responsibilities, a Basic Guide to Policy Considerations,”
(Association of American Universities, Association of American
University Presses, Association of Research Libraries,
Association of American Publishers, 2005)
Harper, Georgia K., Copyright Law and Policy in a Networked
World, Washington DC, National Association of College and
University Attorneys, 2007, pages 3-82 and 593-668.
LaTourette, Audrey W., “Copyright Implications for Online
Distance education,” Journal of College and University Law
(Vol. 32, No.3 2006)
Sources continued
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Library of Congress Copyright Office, Circular 2,
Copyright Basics (Washington D.C. Library of
Congress 2008)
http://www.copyright.gov/circs/circ1.pdf
Library of Congress Copyright Office, Circular 15A,
Duration of Copyright (Washington D.C. Library of
Congress August 2010)
http://www.copyright.gov/circs/circ15a.pdf
Online Resources
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Clemson University Copyright LibGuide
http://clemson.libguides.com/content.php?pid=84458&sid=627487
Copyright Duration Slider
http://librarycopyright.net/digitalslider/
Cornell University “Copyright Term and the Public Domain in the
United States”, January 1, 2010
http://copyright.cornell.edu/resources/publicdomain.cfm
“Know Your Copy Rights”, Association of Research Libraries
http://www.knowyourcopyrights.org/bm~doc/kycrbrochurebw.pdf
Clemson University’s Intellectual Property policy
http://www.clemson.edu/research/technology/policies/patents.html
Online Resources continued
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Clemson University Library Copyright Tutorial
http://www.lib.clemson.edu/copyright/index.htm
Clemson University Library Plagiarism Tutorial
http://www.clemson.edu/culib/Plagiarism/
United States Copyright Office “Report on Orphan
Works, A Report of the Register of Copyrights”,
Washington DC 2006
http://www.copyright.gov/orphan/orphan-reportfull.pdf