Oregon School Library
Information System

DISCLAIMER: Every effort has been made to ensure that the information in this document is as accurate as possible. However, this does not constitute legal advice and users should always verify the legal requirements for any uses of copyrighted materials.

Highlights of Copyright

Copyright protects the creator of a work from unauthorized use.

Fair Use Guidelines allow for some uses of copyrighted materials in a teaching situation, with restrictions placed on number of copies, amount of. material copied or displayed and number of uses.

Library users may make copies from copyrighted materials for personal research use.

Commercial video materials may be used in educational settings as part of face-to-face instruction.

Commercial video materials may not be used for public performances, whether fee or free, unless public performance rights have been obtained.

Definition of Copyright

Copyright protects the right of the creator of a work from unauthorized copying. In other words, if you develop a Web page or write a poem, or a book, or a piece of music, no one can reproduce it or sell it without your permission.

Introduction

Copyright is one method of encouraging people or businesses to take the time and financial risk to produce and distribute information. Problems arise when others want to copy the information you, or others, have worked hard to produce. This really wasn't much of an issue until fast, inexpensive copy and printing machines, audio and video recorders, and computers came into use. Only rarely did anyone bother to copy long passages by hand, and certainly not multiple copies. However, with the advent of these fast, easy methods of copying, where to draw the line between the creators' rights and the users' rights became more complicated.

Creative Commons Licensing:

Creative Commons licensing makes it possible for creators of a work to determine what rights they would like to give to users of their work, ranging from placing it fully in the public domain to providing rights to use the work in specified ways.

Copyright Law for Distance Education:

The Meaning and Importance of the TEACH Act

(NOTE: Enacted October 3, 2002)

Prepared for ALA by: Kenneth D. Crews, Professor of Law.
Director, Copyright Management Center, Indiana University School of Law-Indianapolis. Available as HTML and PDF. Contents include: "The New Legislation - Background of Copyright Law - Context of Distance Education - Benefits of the TEACH Act - Requirements of the TEACH Act - Duties of Institutional Policymakers - Duties of Information Technology Officials - Duties of Instructors - Role for Librarians"

Public Law 107-273: The TEACH Act (Complete text.)

Text of Public Law 107-273, SEC. 13301. EDUCATIONAL USE COPYRIGHT EXEMPTION: Technology, Education, and Copyright Harmonization Act of 2002. This text is at the U.S. Copyright Office Web site.

The TEACH Act became law on October 2, 2002 and fully revised Section 110(2) of the U. S. Copyright Act. It governs the lawful uses of copyrighted materials in distance education and outlines the ways in which educators may use clips of text, images, sound, and other works and include them in "distance education."

A Fun-To-Do Copyright Tutorial

"Copyright Bay" is the most fun copyright learning experience available. Try it out for an adventure in the tortuous waters of copyright. You will learn a lot and have fun doing it.

For those studious types who want "just the facts, please," read on.

Fair Use Guidelines for Educators

U. S Copyright Office- Fair Use Statement

One means of addressing the conflict between the rights of the creator and the rights of the users of the information is the doctrine of "fair use." In 1978, fair use became law in the United States, even though it had been recognized long before that. Fair use allows copying or use of a limited amount of material without permission from, or payment to, the copyright owner, when the use is reasonable and not harmful to the rights of the copyright owner. The law now extends copyright protection to unpublished works also (Evans, p.523).

Fair use specifies four criteria to use in determining whether a particular instance of copying is "fair use." These include:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purpose.
2. The nature of the copyrighted work, including whether it is published and factually based.
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
4. The effect of the use upon the potential market for or value of the copyrighted work (Evans, p. 526).

Limitations to Fair Use

The Fair Use Guidelines for Educational Multimedia were created in 1996 to clarify the application of fair use of copyrighted works as teaching methods are adapted to new learning environments. These are guidelines only, accepted by many, but not yet placed into law. When in doubt, ask permission. A good source of information on this topic is Janis Bruwelheide, Copyright Primer for Librarians and Educators. Chicago: ALA, 1995.

Chart- Fair Use for Educational Multimedia

Fair use is limited by the following parameters:

Time
Educators may use their projects for teaching courses for two years. Use beyond that time period requires obtaining permission for each copyrighted portion.

Portion
Portions are generally specified in the aggregate, meaning the total amount that can be used from a single copyrighted work.

• Motion Media
  Up to 10% or 3 minutes, whichever is less, from a single copyrighted work.
  
  
• Text
  Up to 10% or 1000 words, whichever is less, from a single copyrighted work. Special limitations are placed on poems.
  
  
• Music, Lyrics, and Music Video
  Up to 10%, but in no event more than 30 seconds, of the music and lyrics from an individual musical work.
  
  
• Illustrations and Photographs
  No more than 5 images by an artist or photographer. From a published collective work, no more than 10% or 15 images, whichever is less. The jury is still out on how this might apply to use of an image found on a Web site where only one or two images might exist. ASK PERMISSION. Also make sure the Web owner is indeed the legal copyright owner.
  
  
• Data Sets
  Up to 10% or 2500 fields or cell entries from a database or table.
  
  
• Copying and Distribution
  There may be no more than two copies, only one of which can be placed on reserve. An additional copy may be made for preservation (backup) purposes. Student projects can be included in portfolios or used for job seeking purposes (Rathbun, p. 22).
  
  

When in doubt, ask for permission before use.

Some Common Misconceptions

One of the most common misunderstandings centers around notice of copyright. In 1989, the United States signed the internationally accepted Berne Copyright Convention, which grants copyright with or without notice. Thus, the only safe assumption is that everything is copyrighted, unless you have definite knowledge that it is not covered, for instance, materials published by the federal government.

A second, related technical misconception is that if an item is on Usenet, it is public domain (not copyrighted). For anything to be in the public domain, the creator or owner must include a statement putting the material into the public domain.

There is also a common belief that if one does not charge for or gain financially from the usage, there is no violation of copyright. This is not necessarily true. In terms of films, videos, and music, even a free public performance requires permission if you did not pay for performance rights.

Digital Millennium Copyright Act

The purpose of the DMCA was to update existing U.S. copyright law in terms of the digital world. The 1978 copyright law is still in force, but changed dramatically as a result of amendments and the DMCA. The fair use doctrine is given statutory recognition for the first time in the 1978 law. While the DMCA makes no specific changes in Fair Use Guidelines, it does address access, circumvention of access, liabilities of users, distance education, digital preservation, licensing, and more. Of particular interest to schools and libraries may be the Digital Preservation piece of this law. It updates the current preservation provision of the Copyright Act (108) to: expressly permit authorized institutions to make eligible copyrighted work; electronically "loan" those copies to other qualifying institutions; permit preservation, including by digital means, when the existing format in which the work has been stored becomes obsolete (Rathbun, p.22).

Copyright protection extends to literary (including computer software) works; dramatic works; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; and sound recordings. United States government works are not copyrightable (Evans, p.524).

An article by Laura Gasaway, "Copyright: Digital Millennium Copyright Act: A Mixed Bag," in Information Outlook, 3 (March 1999), pp. 14, 16, notes significant changes affecting libraries brought about by the Digital Millennium Copyright Act.

Without question, the most contentious issue is the electronic environment and who owns what, where, and how. Certainly, licensing of information, be it a CD-ROM, an online service, or an electronic journal, is at issue. Sometimes changes in the law assist in library operations, such as the amendment that authorizes libraries to make backup copies of computer programs.

What is the relationship between copyright and licenses? Copyright represents a set of general regulations negotiated through statutory enactment. The same laws and guidelines apply to everyone in the country. Licenses are contracts. Typical licensing agreements outline the lessee's responsibility for such things as security, customer service, payment and delivery, limitations and warranties, termination, indemnification, and assignment. The library should maintain a master file of copies of all the licensing agreements and contracts. The key is knowing what is in the agreement before purchasing. When considering a product from a new vendor, ask for a copy of the licensing agreement before making a final decision to purchase (Evans, p.535).

Library Copying Authorized by Section 108

In addition to copying that would fall within the fair-use section of the law, certain additional types of library copying are authorized by Section 108 of the law. These general condition apply:

1. The copy is made without any purpose of direct or indirect commercial advantage.
2. The collections of the library are open to the public or available not only to researchers affiliated with the library but also to other persons doing research in a specialized field.
3. The copy includes a notice of copyright.

Section 108(d) authorizes the making of a single copy of a single article or a copy of a small part of a copyrighted work in the library's collections, provided that:

1. The copy becomes the property of the user;
2. The library has no notice that the use of the copy would be for any purpose other than private study, scholarship, or research; and
3. The library both includes on its order form and displays prominently at the place where users submit copying requests a warning about copyright in accordance with requirements prescribed by the Register of Copyrights.

The exact wording of the official text of the required copyright warning signs for print and computer software is available at the Library of Congress home page (http://www.loc.gov/homepage/lchp.html).

Section 108 does not authorize a library to make multiple copies.

Infringement

A person who violates the rights of the copyright owner is a copyright infringer. Remedies available to the copyright holder for infringement include damages, injunction, and recovery of court costs and attorney's fees. There is also criminal infringement (done willfully for commercial advantage or private financial gain), which is subject to a fine and/or imprisonment for each infringement (Evans, p. 530).

Summary

Copyright is a legal way of protecting the rights of those who produce creative work. At the same time, in order for the creators to benefit financially from their work, there must be users of the works. The mission of the library is to connect the users of creative works with the information they need. Producers and users need to work together toward a balance between, and a respect for the needs of both.

References

Evans, G. Edward. Developing Library and Information Center Collections, 4th ed. Englewood, CO: Libraries Unlimited, Inc., 2000.

Rathbun, Joni. "Applying Fair Use Guidelines for Educational Multimedia." New Century Schoolhouse Vol. X, no. 2 (February 1999): 5, 22.

Russell, Carrie. Complete Copyright: An Everyday Guide for Librarians. Chicago, Illinois: American Library Association, 2004.

Further Reading and Web Sites

Copyright. Beaverton, Oregon: Beaverton School District, 2007. http://www.beavton.k12.or.us/home/staff/library/copyright/

Copyright Guidelines: A Manual for Lane Education Service District, Rev. ed. Eugene, OR: Lane Education Service District. 1997.

Copyright Law: What Every School, College & Public Library Should Know. A videotape. Northbrook, IL: Association for Information Media and Equipment (AIME). 1987.

Crews, Kenneth D. Copyright Law for Librarians and Educators: Creative Strategies and Practical Solutions. Chicago: American Library Association, 2006.

Crews, Kenneth D. Introduction to Copyright for Educators. 1999.

Fair Use Guidelines for Educational Multimedia <http://www.libraries.psu.edu/mtss/fairuse/guidelinedoc.html>. 1996.

Nonlegislative report of the Subcommittee on Courts and Intellectual Property, Committee on the Judiciary, U.S. House of Representatives.

Library of Congress home page <http://lcweb.loc.gov/homepage/lchp.html>.

Gateway to the Library's collections, Thomas, the Copyright Office (where you will find general copyright information, records, publications, legislation), news, and exhibitions.

Russell, Carrie. Complete Copyright: An Everyday Guide for Librarians. Chicago, Illinois: American Library Association, 2004.

Simpson, Carol. Copyright Catechism: Practical Answers to Everyday School Dilemmas. Worthington, Ohio, Linworth Publishing, 2005.

techLEARNING. Hot Topic: Copyright and Ethics , 2007. http://www.techlearning.com/hot_topics/copyright.php

U.S. Copyright Office, Registration Procedures <http://lcweb.loc.gov/copyright/reg.html>.

American Library Association: Copyright Issues <http://www.ala.org/ala/washoff/WOissues/copyrightb/Default1964.htm>

Author: Nancy Powell, Oregon School Library Information System, March 30, 2000.

Update: Garnetta Wilker, Oregon Association of School Libraries and Oregon Trail School District, June 2007.