Copyright in the Research
and Academic Environment
Janice T. Pilch
University of Illinois at Urbana-Champaign
AAASS 40th National Convention
Faculty Digital Resources Workshop
Philadelphia
November 20, 2008
Copyright in Research
and Teaching
• Creation and use of copyrighted works is essential to the
educational and research activities of universities
• Students and faculty create their own copyrighted works
• Students and faculty use copyrighted works in teaching,
research, and scholarship
U.S. copyright law functions to maintain balance between
rights of copyright holders and rights of people to use works.
There are privileges and responsibilities on both sides.
Steps in a Copyright Determination
• Does a license restrict use of the work?
• Is the work copyrighted in the U.S. today?
 Pre-1973 Soviet works may be under copyright in
the U.S. today
• Does the use correspond with one or more of the
exclusive rights of copyright holders in U.S. law?
• Is the planned activity covered by fair use, or by
a library, educational or other limitation or
exception in U.S. law?
The basics of U.S. copyright law
Copyright Act of 1976 (17 United States Code)
http://www.copyright.gov/title17
• Requirements for copyright protection in U.S.
– Originality
– Minimal creativity
– Fixation in tangible medium of expression
• Copyright exists upon creation of the work
– Since 1989 copyright notice no longer required in U.S. (© with
year of first publication and name of copyright owner)
• Jurisdiction of U.S. copyright law
- Applies to U.S. works and eligible foreign works being used in
the U.S.
What is protected by copyright in U.S.
Literary works
Musical works, including any accompanying words
Dramatic works, including any accompanying music
Pantomimes and choreographic works
Pictorial, graphic, and sculptural works
• Works of visual art
Motion pictures and other audiovisual works
Sound recordings
Architectural works
What is not protected by
copyright in U.S.
• Facts, ideas, procedures, processes, systems, methods of
operation, concepts, principles, discoveries
• U.S. federal government works
• Works in public domain
Who owns copyright in a work
• Authors (initial authorship)
• Employers in works made for hire (in some countries
employees, as defined by law of country of origin)
• Heirs or other special beneficiaries; transferees
How international works can be
copyrighted in U.S.
• If work was first published in U.S. or after U.S.
established copyright relations with country of origin,1
and it is still copyrighted
• If on date of first publication, one or more of the authors
was national or domiciliary of U.S. or a treaty party, or
was a stateless person, and it is still copyrighted
• If the work is a pictorial, graphic, or sculptural work
incorporated in a building or other structure, or an
architectural work, located in U.S. or treaty party, and it
is still copyrighted
• If work is first published by United Nations or its
specialized agencies, or by Organization of American
States, and is still copyrighted
• If the work comes within the scope of a Presidential
proclamation (bilateral agreement), and is still
copyrighted
• If work was created/published at any time and
copyright was restored under terms of Article 18 of
Berne Convention and TRIPS Agreement2
 Unpublished works are protected regardless of
nationality or domicile of author.
17 U.S.C. §104
1Year
when copyright relations
established with U.S.
• Albania 1994
• Armenia 1973
• Azerbaijan 1973
• Belarus 1973
• Bosnia and Herzegovina 1966
• Bulgaria 1975
• Croatia 1966
• Czech Republic 1927
• Estonia 1994
• Georgia 1973
• Hungary 1912
• Kazakhstan 1973
• Kyrgyzstan 1973
• Latvia 1995
• Lithuania 1994
• Macedonia 1966
• Moldova 1973
• Montenegro 1966
• Poland 1927
• Romania 1928
• Russia 1973
• Serbia 1966
• Slovakia 1927
• Slovenia 1966
• Tajikistan 1973
• Turkmenistan 1973
• Ukraine 1973
• Uzbekistan 1973
See U.S. Copyright Office, Circular 38a, International Copyright Relations of
the United States
http://www.copyright.gov/circs/circ38a.pdf
2Copyright
restoration
On January 1, 1996, copyright was restored in U.S. to eligible foreign
works which on that date had not yet fallen into the public domain
in the country of origin through the expiry of the term of protection.
For some countries the date of copyright restoration is later, in
accordance with treaty obligations, as stipulated in Section 104a.
• Consider date on which TRIPS Agreement became effective for U.S.
with respect to copyright restoration for eligible works created or
published in foreign countries
• Works protected in the country of origin on that date were restored
and are protected in the U.S. for the full U.S. term for a work created
or published on that date
• If work was not protected in the country of origin on that date, it is
not currently protected in the U.S.
• Works created or published after that date are protected in the U.S.
for the full U.S. term
Effective date of copyright restoration was
January 1, 1996 for the following countries of
origin:
• Albania
• Bosnia and Herzegovina
• Bulgaria
• Croatia
• Czech Republic
• Estonia
• Georgia
• Hungary
• Latvia
• Lithuania
• Macedonia
• Moldova
• Montenegro
• Poland
• Romania
• Russia
• Serbia
• Slovakia
• Slovenia
• Ukraine
Effective date of copyright restoration for
other nations:
• Armenia--October 19, 2000
• Azerbaijan--June 4, 1999
• Belarus—December 12, 1997
• Kazakhstan—April 12, 1999
• Kyrgyzstan—December 20, 1998
• Tajikistan—March 9, 2000
• Uzbekistan—April 19, 2005
• Knowledge of national laws effective on January 1, 1996 or other
effective date of copyright restoration is crucial
• Works are restored for full U.S. term
Exclusive rights of copyright holders
in U.S.
1. Reproduction
For example: quoting, photocopying, digitizing,
printing, downloading, posting to a website
2. Preparing a derivative work
For example: creating a translation, abridgement,
annotated version, revised version, film based on
book, drama based on novel, collage, musical
arrangement
3. Public distribution
For example: making a work publicly available on a
website or other electronic forum where it can be
copied
Exclusive rights of copyright holders
in U.S.
4. Public performance
For example: showing a motion picture for a public
audience, streaming a video to the public
5. Public display
For example: Placing works on a website where they
can be publicly viewed; publicly displaying still shots
from a film; publicly displaying photographs
6.
Public performance by means of a digital
audio transmission
For example: streaming a recorded song to the public
[Section 106]
Summary of U.S. copyright terms
– If published before 1923, in public domain
– If published with notice from 1923-1963 and renewed,
95 years from date of publication
– If published with notice from 1964-1977, 95 years
from date of publication
– If created, but not published, before 1978, life of
author + 70 years or 12/31/2002, whichever is greater
– If created before 1978 and published between 1978
and 12/31/2002, life of author + 70 years or
12/31/2047, whichever is greater
Summary of U.S. copyright terms
– If created from 1978- , life of author + 70 years (for
works of corporate authorship, works for hire,
anonymous and pseudonymous works, the shorter of
95 years from publication or 120 years from creation)
– If published without notice from 1/1/1978-3/1/1989
and registered within 5 years, or if published with
notice in that period, life of author + 70 years (for
works of corporate authorship, works for hire,
anonymous and pseudonymous works, the shorter of
95 years from publication or 120 years from creation)
* For U.S. works, registration and renewal records in U.S. Copyright Office
will be relevant; for certain foreign works, this may also be relevant.
Resources on copyright terms and
status of works
See charts by:
• Laura Gasaway
http://www.unc.edu/~unclng/public-d.htm
• Peter Hirtle
http://www.copyright.cornell.edu/training/Hirtle_Public_Domain.htm
• Michael Brewer and ALA Office for Information Technology Policy
http://www.librarycopyright.net/digitalslider
• U.S. Copyright Office, Circular 22, How to Investigate the Copyright Status
of a Work
http://www.copyright.gov/circs/circ22.pdf
• U.S. Copyright Office database of copyright records (Jan. 1, 1978- )
http://www.copyright.gov/records
• Stanford Copyright Renewal Database (for books 1923-1963)
http://collections.stanford.edu/copyrightrenewals/bin/page?
forward=home
Fair use
Certain limitations and exceptions to copyright enable use of
copyrighted works without prior permission of the copyright holder
or payment of a royalty. Fair use is one of these.
“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 by 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 —
Fair use
(1) the purpose and character of the use, including whether
such use is of a commercial nature or is for nonprofit
educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in
relation to the copyrighted work as a whole; and
(4) 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.”
[Section 107]
Fair use
• Establishes that certain uses are not infringing,
depending on 4 factors, for purposes including
criticism, comment, news reporting, teaching
(including multiple copies for classroom use),
scholarship, and research
• Applies to all types of works, published and
unpublished, and all formats (technology
neutral)
• Broad and ambiguous
• But does not guarantee against infringement
Weighs for fair use:
• Purpose: Education, research, criticism,
comment, news reporting, transformative use,
parody, non-commercial use
• Nature: Published, work of factual nature,
informational, nonfictional
• Amount: Small portion, non-essential portion
• Effect: No major effect on market or potential
market for work
Weighs against fair use:
• Purpose: Commercial use, entertainment, nontransformative use
• Nature: Unpublished, highly creative work
• Amount: Large portion, “heart” of the work
• Effect on market: Affects market or potential
market for work
• See Checklist for Fair Use, in Kenneth D. Crews, Copyright Law for
Librarians and Educators: Creative Strategies and Practical Solutions, 2d
ed. (Chicago: American Library Association, 2006), 124.
Fair use cases
• Harper & Row, Inc. v. The Nation Enterprises, 471 U.S. 539 (1985)
About 300 words from an approx. 30,000-page manuscript. Not a
fair use.
• Salinger v. Random House, Inc., 811 F.2d 90 (2d Cir.), cert. denied,
484 U.S. 890 (1987)
Large portions of unpublished letters by J.D. Salinger paraphrased
by a biographer for publication in a book. Not a fair use.
• Wright v. Warner Books, Inc., 953 F.2d 731 (2d Cir. 1991)
Quotes from 6 unpublished letters and 10 unpublished journal
entries, not more than 1% of Wright’s unpublished letters used in a
scholarly biography. A fair use.
• Sundeman v. The Seajay Society, Inc., 142 F.3d 194 (4th Cir. 1998)
Scholar used quotations from an unpublished literary manuscript in
research paper presented at academic conference. A fair use.
Fair use cases
• Penelope v. Brown, 792 F. Supp. 132 (D. Mass. 1992)
Writer of manual for aspiring authors used examples of sentences
taken from a book on English grammar and usage, in 5 pages of a
218-page book. A fair use.
• Higgins v. Detroit Education Broadcasting Foundation, 4 F. Supp.
2d 701 (E.D. Mich. 1998)
45 seconds of a short song were used as background music in a
television program broadcast on a PBS affiliate, which also sold
copies of the program to educational institutions for educational
use. A fair use. Transformative use was a factor.
Sources:
• Stanford Copyright and Fair Use website,
http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/
chapter9/index.html
• Kenneth D. Crews, “Court Case Summaries,”
http://www.copyright.columbia.edu/court-case-summaries
Fair use: Using copyrighted
works in research
• Term papers, assignments, projects, classroom
presentations, scholarly publications, other
scholarly works
• Theses and dissertations
• Proquest UMI website:
http://www.proquest.com/en-US/products/
dissertations
• Institutional guidelines
Fair use: Using copyrighted
works in research
• Reasonable, limited, educational, scholarly uses of
materials are more likely to be fair use
• Consider whether the use will involve print-only access,
restricted Web access, or public Web access
• Publication and digital distribution create more
copyright considerations
• Limit to amount needed to meet goals of research
• Read publishers’ policies and guidelines carefully
• Be familiar with UMI Proquest policies and guidelines
for theses and dissertations
• Always credit the source
Using copyrighted
works in face-to-face teaching
• U.S. copyright law allows for performance and display
of works in face-to-face teaching activities of nonprofit
educational institutions
– In a classroom or similar place devoted to instruction
– Requires that when using a motion picture or other audiovisual
work, the copy used must be lawfully made
[Section 110(1)]
• This enables presentation of copyrighted works, such as
text, images, charts, tables, musical works, sound
recordings, audiovisual works, in a live classroom
Using copyrighted works in distance
education: The TEACH Act
• The law was revised by Technology, Education and
Copyright Harmonization (TEACH) Act of November
2002 to allow for use of works through digital networks
in distance learning.
[Section 110 (2)]
– Permits performance of nondramatic literary or musical works
(excerpts from books, journal articles, songs, etc.)
– Permits “reasonable and limited portions of any other work”
(paintings, charts, graphs; dramatic: operas, plays; audiovisual
works, etc.)
– Permits display of work in amount comparable to typical live
classroom session
– If teaching done by instructor as integral class session as part of
“systematic mediated instructional activities”
– If use is directly related to teaching content
– If transmission is limited to students enrolled in course
The TEACH Act:
Institutional requirements
– Applies to government bodies and accredited
nonprofit educational institutions
– Copyright policies must be in place
– Institution must provide informational materials to
faculty, students, staff to promote compliance with
copyright law
– Copyright notices must be placed on materials
– Technical security measures must be made to prevent
retention “beyond duration” of class session and
unauthorized further dissemination
– Interference with technological protection measures is
not permitted
The TEACH Act
• Also:
– Permits retention of content and student access for
limited time, provided that no further copies are
made
– Permits reproduction and retention as necessary for
technical purposes
– Permits digitization of analog works for classroom
teaching if amount is appropriate and if digital
version not already available at the institution or if it
is available but restricted by technological protection
measures
[Section 112]
Distance education: options
• Take advantage of the TEACH Act
– Involves cooperation among instructors, administration, and
systems specialists
– Requires compliance with all requirements—all or nothing
• Take advantage of fair use
– If you cannot comply with all terms of TEACH Act
– If institution does not offer means for implementing terms of
TEACH Act
• See Checklist for the TEACH Act, in Kenneth D. Crews, Copyright
Law for Librarians and Educators: Creative Strategies and Practical
Solutions, 2d ed. (Chicago: American Library Association, 2006), 126.
Using copyrighted works in teaching
• Reasonable, limited, isolated, non-repeating uses of
materials are more likely to be fair use
• Limit to amount needed to meet educational purpose
• Key factors are brevity, spontaneity, cumulative effect
• Always credit the source
• The risks associated with digital access need to be
considered in the fair use analysis
• Handouts should not be a substitute for class reading
materials or coursepacks, or for “consumable”
workbooks—avoid multiple copies of different works
that substitute for the purchase of works
Academic coursepacks
• Permissions should be obtained for copyrighted
material in coursepacks
• Generally it is the instructor’s responsibility to obtain
permissions
• Two key cases concerning academic coursepacks:
• Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F. Supp. 1522
(S.D.N.Y. 1991)
Kinko’s copy shop photocopied copyrighted material from a book
for an academic coursepack. Not a fair use. Not all educational uses
qualify for fair use. This case changed the way that institutions deal
with coursepacks.
• Princeton Univ. v. Michigan Document Servs., 99 F.3d 1381 (6th Cir.
1996)
Again, coursepack copying of copyrighted material. Not a fair use.
Print and electronic reserves
• Many institutions base their library reserve
practices on fair use
• Read institutional policies carefully
• Chilling effect of recent lawsuits against
universities
Steps in determining whether to seek
permission to use a work
• Does a license restrict use of the work?
• Is the work copyrighted in the U.S. today?
• Does the use correspond with one or more of the
exclusive rights of copyright holders in U.S. law?
• Is the planned activity covered by fair use, or by a
library, educational or other limitation or exception in
U.S. law?
 The need to seek permission is more likely if:
• The use is commercial
• The use is repeated
• The work is being used in its entirety and it is substantial
Obtaining copyright permissions
1.
Identify copyright holder
•
•
•
•
2.
3.
Use copyright notice as a starting point
Copyright holder might be author/multiple authors,
publisher, heir or assignee/multiple heirs or assignees
For published works, try the publisher
Use any entity associated with author to track copyright
holder
Contact copyright holder directly --or—
contact a collective rights organization to negotiate
permissions
Draft permissions letter
•
Include as much information as possible on planned use
(what, where, when, why, how, how much)
Obtaining copyright permissions
4.
Negotiate permissions agreement, possibly involving
fee
5. Obtain signed permissions agreement
 Lack of response does not substitute for permission
More on collective rights organizations:
•
Copyright Clearance Center (CCC):
http://www.copyright.com/
• University of Texas copyright website on Getting
Permission:
http://www.utsystem.edu/OGC/IntellectualProperty/
PERMISSN.HTM
• Columbia University copyright website:
http://www.copyright.columbia.edu/collectivelicensing-agencies
• International Federation of Reproduction Rights
Organizations:
http://www.ifrro.org/show.aspx?pageid=home
Thank you!
Janice T. Pilch
Associate Professor of Library Administration
Head, Slavic and East European Acquisitions
University of Illinois at Urbana-Champaign
E-mail: pilch@uiuc.edu