Copyright and Fair Use –
What Clinicians and Educators
Need to Know
October 19, 2006
Robert B. Donin
General Counsel
Dartmouth College
Bill Garrity
Director of Biomedical Libraries
Dartmouth College/DMS & DHMC
(603) 646-0101
Robert.Donin@dartmouth.edu
(603) 650-1662
William.Garrity@dartmouth.edu
© 2006 Trustees of Dartmouth College
CME Learning Objective
Know the basics of copyright and fair use as
they apply to academic environments
CME Accreditation
“The Dartmouth-Hitchcock Medical Center is
accredited by the Accreditation Council for
Continuing Medical Education to provide
continuing medical education for
physicians.”
Conflict of Interest
Neither Bob Donin nor Bill Garrity has any
financial relationship to those in a position
to control the content of this presentation
This presentation has no commercial
support
Introductions
1. What is a Copyright?
Exclusive right of creator of original “work of
authorship” “fixed in any tangible medium of
expression” to exercise certain controls over that
work
Copyright vs. Physical Property –


© purely intangible - should not be confused with
material object
Example: Garrity purchases CD-ROM copyrighted by
Donin Corp. Garrity can lawfully use CD-ROM and
sell to Katz, but may not make and distribute copies
without Donin Corp’s permission
2. What can be Copyrighted?
“Works of authorship”
Examples:
literary works (books, articles, fiction and nonfiction)
musical works (both score and lyrics)
pictorial/graphic works, art, sculpture,
photographs
web pages, motion pictures, audiovisual works,
video games
computer software
sound recordings
3. What Cannot Be Copyrighted?
Ideas, procedures, concepts
Facts
United States Government works
Titles and simple phrases
Out-of-copyright works (term expired - see
below)
4. Who Owns the Copyright?
General rule: natural person who is author/creator
copyright can be joint
Exception: in case of “work made for hire” copyright
belongs to employer of creator:
prepared by employee within the scope of employment;
or
prepared by independent contractor per written
agreement which identifies the work as a “work made for
hire” AND work falls within one of nine categories listed
in Copyright Act
Exception to the exception: by College policy, works
prepared by Dartmouth teaching faculty generally are not
considered “works made for hire”
5. How/When Does an Author
Obtain a Copyright?
© arises automatically by law
© arises at instant of creation -- as soon
as work is “fixed in any tangible medium of
expression”
Isn’t Registration with the
Copyright Office in Washington,
D.C., Required?
No - registration only required to bring
infringement action for statutory damages
6. Is It Necessary to Put a
Copyright Notice on the Work?
Not any more - works created since March
1, 1989, don’t need affixed notice (e.g., ©
2006 Trustees of Dartmouth College) but
notice is still advisable
“Copyright” or “Copr.” may be used instead
of “©”
7. What is the Period of Copyright
Protection?
Works owned by individuals: life plus 70 years
Works-made-for-hire: 95 years from date of first
publication, or 120 years from date of creation,
whichever is shorter
Eldred v. Ashcroft: challenge to 1998 extension
of term by 20 years – Supreme Court rejected
8. What are the Exclusive Rights of
the Copyright Owner?
Five exclusive rights:
1. To reproduce work in copies
2. To prepare derivative works (i.e.,
adaptations) based on copyrighted work
3. To distribute copies of work
4. To perform work publicly (i.e., to recite,
play, dance, or act it)
5. To display work publicly
9. Are the Exclusive Rights of
Copyright Absolute?
No - Copyright Act contains exceptions that
allow limited use of copyrighted work without
owner’s permission
Most important exceptions:
Fair use
“Instructional exemption”
“Classroom copying” guidelines
Exceptions to Copyright Owner’s Exclusive Rights
(cont’d)
Fair Use:
Limited use by person other than
copyright owner for purposes such as
criticism, teaching, scholarship, or
research
Four-part test:
1. Purpose and character of use (including
commercial vs. non-profit educational)
2. Nature of copyrighted work
3. Amount and substantiality of portion used vs.
work as whole
4. Effect on potential market for or value of work
Exceptions to Copyright Owner’s Exclusive Rights
(cont’d)
“Instructional Exemption”:
Performance or display of a work by
teachers or students in the course of faceto-face teaching
Exceptions to Copyright Owner’s Exclusive Rights
(cont’d)
“Classroom Copying” Guidelines:
Guidelines agreed upon by the publishing industry
and educational organizations at time of the 1976
Copyright Act establish “safe harbor” for classroom
copying for educational use, but provide limited
help because of “brevity” and “spontaneity”
requirements
Exceptions to Copyright Owner’s Exclusive Rights
(cont’d)
What do the Classroom Guidelines Permit?
Guidelines are on Dartmouth website at:
http://www.dartmouth.edu/copyright/
Basic requirements:

Spontaneity
“The inspiration and decision to use the work and the moment of
its use . . . are so close in time that it would be unreasonable to
expect a timely reply to a request for permission.”

Brevity

Cumulative effect
10. Are Databases Protected by
Copyright?
Facts not protected
Compilation may be protected, but
standard is strict one:


originality in choosing, grouping or organizing
facts
only elements added by author - not
underlying facts - are protected
11. Peer-to-Peer File Sharing
Copying of commercial music and video files without permission of
the copyright holder for personal enjoyment is generally illegal
Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd. (2005) –
File-sharing services such as Grokster may be held liable for
copyright infringement committed by users of their software.

Case turned on Grokster’s “principal, if not exclusive, intent to bring
about infringement,” not on the mere fact that it provided file-sharing
technology
Not all file-sharing is illegal


Sharing with permission of copyright owner
Fair use
See Peer-to-Peer File Sharing and Copyright Law
http://www.dartmouth.edu/copyright/peer2peer/
12. If What I Want to Do Is Not Covered by
Any of the Exceptions, How Do I Get
Permission to Reproduce or Distribute
Someone Else’s Copyrighted Work?
1. Check the Dartmouth Library database of
licensed materials; or
2. Find the copyright owner and ask permission;
or
3. Obtain permission through a clearing house
such as Copyright Clearance Center.
How Do I Get Permission to Reproduce or
Distribute Someone Else’s Copyrighted
Work?
1. Check the Dartmouth Library database of
licensed materials
Dartmouth may already have rights to
reproduce the work
How Do I Get Permission to Reproduce or
Distribute Someone Else’s Copyrighted
Work? (cont’d)
2. Find the copyright owner and ask
permission



Permission may be oral or written; written is
better
No special form for request, but include:
publication you wish to use; precise
pages/chapters/photos, etc. you wish to use;
number of copies you want to make; purpose of
use (e.g., “a handout in a course on
microbiology at Dartmouth Medical School”)
Copyright owner may charge fee, but you may
be able to negotiate low/no fee
How Do I Get Permission to Reproduce or
Distribute Someone Else’s Copyrighted
Work? (cont’d)
3. Obtain permission through a clearing
house such as Copyright Clearance
Center (www.copyright.com)



Web-based system for obtaining permission
Open an account
Standard fees
Common Misconceptions
All educational uses are fair use
Giving authors credit absolves infringement
If an author dies, his/her work then moves into
public domain
Adding something to the copyrighted work
precludes infringement
Works that do not have a copyright notice are in
the public domain
Material on the web is in the public domain
Copyright Resources
Dartmouth College
http://www.dartmouth.edu/copyright/
University of Texas
“Crash Course in Copyright”
http://www.utsystem.edu/ogc/intellectualproperty/cprtindx.htm#top
Indiana University
http://copyright.iupui.edu/
U.S. Copyright Office
http://lcweb.loc.gov/copyright
Copyright Resources (con’t)
Cornell University
http://www.copyright.cornell.edu/
“Campus Copyright: Rights and Responsibilities”
ARL, AAU, AAUP, and AAP
http://www.arl.org/info/frn/copy/CampusCopyright05.pdf
“Copyright Law for Libraians and Educators,”
Kenneth D. Crews, 2nd ed., ALA, 2006