Copyright & Fair Use

Introduction to Copyright & Fair Use

History of Copyright in the United States

The Constitutional Provision Respecting Copyright

The Congress shall have Power . . . To promote the Progress of Science and useful Arts, by securing for limited Tımes to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

United States Constitution, Article I, Section 8. [Constitutional Committee on Detail] 1787


In 1947 United States Copyright Law became Title 17 of the U.S. Code.

The purpose of copyright is to offer authors financial incentive to create and share their work.  Initially, the term of exclusivity was no more than twenty-eight years.  By 1998, the term had been extended to seventy years plus the life of the author.

The Fair Use Exemption

From the onset, Congress sought to maintain a balance between the creators’ and the users’ rights.  One way this was accomplished, which would be of particular relevance to the academic community, was to apply the Fair Use Exemption (Fair Use was introduced in the case of Gyles v Wilcox, 1740, UK.  Here, the courts created a doctrine of “Fairness Abridgement” which eventually evolved into the modern concept of “fair use.”)

Why has the term length tipped the balance so far in the creators’ direction?  The ability to infinitely reproduce copyrighted material through digital means has caused loss of revenue for the rights holders which in turn has created an intimidating litigious landscape.  The content owners’ successful lobbying for increased protection has been their means of holding the line.  However, the only way for a true balance to exist is for both sides to be vigilant in exercising their rights. Fair use is an important tool in determining what copyrighted information can be used without permission.  Unfortunately, because it requires judgment, many people pay copyright fees rather than apply the exemption. 

Ultimately, that strategy will work against us--the content consumers: Fair Use is like a muscle that needs to be worked, and if we don’t use it our rights may disappear.  The Copyright Committee is available to help you navigate the factors in making a decision to exercise the Fair Use Exemption.  This effort will benefit you, your students and fellow academicians.   

Fortunately, there is a growing movement which is making educators less dependent on copyrighted works.  The movement has many names: creative commons, open access.  Using O.A. journals for research and publication will help them to flourish and to provide scholarship that is not restricted by copyright.

Teaching: Copyright & Fair Use

Conformity with copyright restrictions is the responsibility of the instructor.

In order to comply with the fair use provision of Section 107 of the copyright law (Title 17, U.S. Code), you cannot. . .

  • reproduce more than 10% of a book;
  • create an electronic course pack that is an exact replication of a published anthology;
  • reproduce workbooks, exercises, standardized tests and test booklets and other published consumable material;
  • systematic downloading from licenced databases, such as with bots or intelligent agents, is not permitted.

You may always...

Fair Use allows educators greater freedom in using copyrighted materials.

Copyright is held for a limited time so that copyrighted works do, in time, come into the public domain. Title 17 of the United States Code, the United States Copyright Act, also places limitations on the exclusive rights to copyrighted material during the time the material is covered by copyright. One important limitation is commonly known as the Fair Use Exemption in the Copyright Act.

The fair use exemption states that fair use is the use of a copyrighted work, including such use by reproduction in copies or phonorecords . . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.

It is up to you to determine if the material to be used falls within Fair Use.

To determine this, you must consider these four factors:

  • the purpose of the use of the copyrighted work,
  • the nature of the copyrighted work,
  • the amount of the copyrighted work to be used, and
  • the effect of reproduction on the sale of the copyrighted work.

Use this fair use check-list developed by Columbia University Libraries when determining if your planned use of copyrighted material is permitted under fair use. Or check out the Section 108 Spinner.

TEACH Act

Background

The Technology, Education and Copyright Harmonization Act (TEACH Act) was signed into law in 2002 and served to expand and clarify copyright law (specifically sections 110(2) and 112(f)) to recognize the current methods used in distance instruction, but it is not meant to over-ride a fair use claim or argument for the fair use of copyrighted material.

Distance instruction (largely online teaching) now represents a range of practices, from teaching a course completely online to posting an individual assignment on the web as part of a course otherwise entirely delivered in a face-to-face setting.

Brooklyn College, as an accredited, nonprofit educational institution, makes information about copyright available to all in its community and is covered by the provisions of the TEACH Act.  As faculty at Brooklyn College you may use copyrighted material specifically related to the content of a course and are required to alert students that materials used in connection with your course may be subject to copyright protection.  Additionally, you may only make these materials available to students registered in the course.

The Specifics

You Can!  

The copyright law, as reshaped by the TEACH Act, now explicitly permits the transmission of:

  • Complete performances of non-dramatic literary or musical works;
  • Commercially produced educational media for which you or the college has a license;
  • Reasonable and limited portions of a dramatic literary, musical, or audiovisual works;
  • Displays of other works, such as images, in amounts similar to typical displays in face-to-face teaching; and
  • Copies of analog content that you have digitized because digital copies currently available prevent you from excerpting portions as allowed by the law.

Be Careful Not To . . .

  • Continue to provide access to content for “longer than the class session.”  Interpretations of the meaning of "class sessions" have varied.
  • Use copies of performances or displays that you are aware were obtained outside the law; or
  • Use textbooks, coursepacks and similar materials typically purchased individually by the students for the course.

Tools

There exist situations where the Fair Use Exemption does not apply.

You are responsible for obtaining copyright permission for any use of materials that does not comply with the fair use exemption, or any other exemption provided by the Copyright Act. Recognizing when you will need to obtain copyright permission often depends on the nature of the material being used and the length of time you will be making the copyrighted material available.

For example, the fair use exemption does not allow for the reproduction of large portions of a work or for making it available for a long period of time, because this can affect the sale of the work (the third and fourth factors of the fair use exemption).

Music: Copyright & Fair Use

Copyright and Music

The regulation of music copyright has become extremely complicated for a number of reasons. To cite a few, there is a patchwork quilt of laws which often overlap and sometimes appear to contradict each other; copyright convention is not universal and questions arise concerning the validity of copyrights in other jurisdictions; some works have been known to come out of copyright only to be reinstated under new legislation. Copyright searching can be tedious and the following list of links is an attempt to make things easier by directing researchers to sites providing the most reliable information.

Music Library Association (MLA)
http://copyright.musiclibraryassoc.org
Frequently asked questions on copyright, fair use, preservation and various other issues related to music copyrights and licensing, edited by the Music Library Association. Website also includes links and bibliography.

Music Copyright Infringement Resource
http://mcir.usc.edu/
The purpose of this site is to "make universally available information about U.S. music copyright infringement cases from the mid-nineteenth century forward." Includes coverage of recent copyright disputes, an overview of the judgments of prior cases, and a glossary of relevant terms.
 
Public Domain Music
http://www.pdinfo.com/list.php
"Information on this Site is Based Entirely on USA Copyright Laws. Any [score of a] Song or Musical Work Published in 1922 or Earlier is in the Public Domain in the USA."
 
USA Copyright Law for Sound Recordings
http://www.pdinfo.com/Copyright-Law/Public-Domain-Sound-Recordings.php
No sound-recordings are public domain in the United States due to a tangled complexity of Federal and State law.


International Music Score Library Project (IMSLP/Petrucci Music Library)
http://imslp.org
Online score library offering access to over 200,000 scans of public domain scores. N.B. This library consists largely of user-contributed scans; each scan or edition is not necessarily of high scholarly or archival standards. For questions on selecting an edition for study or performance, please consult a music professor or librarian.

Images: Copyright & Fair Use

Fair Use of Images

This Statement on the Fair Use of Images for Teaching, Research, and Study describes six uses of copyrighted still images that the Visual Resources Association (www.vraweb.org) believes fall within the U.S. doctrine of fair use.

The following six uses are:

  1. Use of images for in-class use.
  2. Use of images (both large, high-resolution images and thumbnails) on password protected course websites and in other platforms restricted to students and faculty at Brooklyn College.
  3. Adaptation of images for teaching and classroom work by students.
  4. Sharing images among educational and cultural institutions to facilitate teaching and study.
  5. Reproduction of images in theses and dissertations.
  6. Preservation (storing images for repeated use in a teaching context and transferring images to new formats).

Consider these five variables when determining the fair use of images:

  1. The copyright status of the underlying work represented in the image.
  2. The copyright status of the photographic reproduction.
  3. The specific source from which you have obtained the image under consideration.
  4. Any terms of use or contract that may govern the uses of the image
  5. The intended use(s) of the image.

The Digital Image Rights Computator created by the Visual Resources Association can help you do this too.

Questions?  Please contact Professor Miriam Deutch, miriamd@brooklyn.cuny.edu.  718.951.5221.

Images from Library databases

ARTstor’s Images for Academic Publishing
The Images for Academic Publishing (IAP) program makes available publication-quality images for use in scholarly publications free of charge. To find IAP images, simply add "IAP" to your search criteria. An icon reading "IAP" is located directly beneath the thumbnail image in your search results.

United States Government Websites
In general, most images on all U.S. government web sites (.gov) are in the public domain and free for you to use and share on a public website or blog, etc.. However, some restrictions may apply so make sure you review the policies of the individual sites for this information. 

The Library of Congress Print and Photographs Online Catalog  contains access to millions of digital images including photographs, fine and popular prints and drawings, posters, and architectural and engineering drawings. While international in scope, the collections are particularly rich in materials produced in, or documenting the history of, the United States and the lives, interests and achievements of the American people.

 image from the Library of Congress Prints and Photgraphs Reading Room
Migrant mother, Dorothea Lange, photograph, 1936.
Using Open Access Images

You are free to use images taken from the public domain, licensed by the Creative Commons, or free of most copyright restrictions in multimedia projects, websites, blogs, portfolios, etc., that are open and available to the public.

However, even if images are in the public domain, there may be a few restrictions to their use. These are usually attribution requirements.

Always read and comply with the use restrictions for specific image sources.

Always cite images someone else created.

Copyright Term & Public Domain

A useful chart for determining the life of the copyright of a creative work.

Known as the Copyright Slider, and interactice tool for determining what is in copyright.

Obtaining Permissions

Copyright Clearance Guidelines

When your use of a copyrighted work does not fall within the parameters of fair use, you will need to obtain copyright clearance. In order to obtain copyright clearance, you will need to identify and contact the copyright owner or owners. Remember to keep a detailed, written record of the steps you take.

Identify the copyright owner(s).

  • Beware, especially with music and media, multiple parties may hold the rights and each party must be accounted for when obtaining permission.
  • Remember, the absence of a copyright notice does not mean that the work is in the public domain.

 Contact the copyright owner(s) and secure permission.

  • Contact the owner directly, or
  • Use a collective rights organization such as the Copyright Clearance Center. A collective rights organization may be the only way to get permission in some cases.

TIPS:

  • You may save on fees if you contact a copyright owner directly.
  • Request permission only for the portion of the work you need.
  • Fees are often based on how many copies will be needed and the length of time copies will be in use.

Here's a great site where you will find samples of permission letters:
http://copyright.columbia.edu/copyright/permissions/requesting-permission/model-forms/.

It is imperative that you include a copyright notice and citation with all materials you use.

When you copy print materials, please be sure to include all source information. For your convenience, you may use the standardized Print Source Cover Page from the Brooklyn College Library and Academic Information Technologies as a cover page.

When you duplicate/present material electronically, you will be instructed by the software you are using to include appropriate copyright notice and citation information. The copyright notice will be embedded into the document/presentation produced.

Obtaining copyright clearance

You may want to use the Copyright Consideror, an online tool that will help you get the job done, or follow these steps:

  1. Identify the copyright owner(s).
    • Beware, especially with music and media, multiple parties may hold the rights and each party must be accounted for when obtaining permission.
    • Remember, the absence of a copyright notice does not mean that the work is in the public domain.
  2. Contact the copyright owner(s) & secure permission.
    1. Contact the owner directly; or
    2. Use a collective rights organization such as the Copyright Clearance Center <http://www.copyright.com/>. A collective rights organization may be the only way to get permission in some cases.
    TIPS:
    • You may save on fees if you contact a copyright owner directly.
    • Request permission only for the portion of the work you need.
    • Fees are often based on how many copies will be needed and the length of time copies will be in use.
    Here's a great site where you will find samples of permission letters:
    http://copyright.columbia.edu/copyright/permissions/requesting-permission/model-forms/.
  3. Keep a detailed record of your quest for obtaining permission.
  4. For more information, see:
  5. Contact the Copyright Coach: AskCopyright@brooklyn.cuny.edu.