Copyright law protects printed works, photographs, audio and video productions, art, music, software, and most of what you find in the library and on the Internet. The Digital Millennium Copyright Act (DMCA) of 1998 amends the Copyright Act (1976), strengthening rights for copyright owners. The law grants broad rights to copyright owners, reserving to them the right to make and distribute copies. Thus librarians and educators are often in conflict with these rights in the normal course of our work. Whenever we copy, scan or download protected material to make it available to others electronically, copyright issues arise.
The primary “exception” to these rights is “fair use.” While the DMCA is intended to be flexible, it lags behind changing technology, notably Internet courses, and does not clearly distinguish between infringement and fair use. Fair use does not cover as many items as you might expect, and its definition depends on evaluating the intended use by the following four factors:
- The purpose of the use, including non-profit educational purposes (Fair use favors "transformative" use over mere reproduction; e.g., a court determined that a "thumbnail" image of a photograph constituted "transformative" use due to the difference of that use from the original purpose.)
- The nature of the copyrighted work (courts have tended to favor fair use of nonfiction over fiction, but there are many qualifiers).
- The amount of copying (the more extensive the copying, the less likely it is to be "fair use"; in one case as little as 5% to 25% of a full book was deemed excessive).
- The effect of copying on the potential market for the original work (Course packs compete with potential sales.)
To use material protected by copyright law, determine whether this constitutes fair use. If it does not, you must seek permission for that use from the copyright holder. For example, posting another’s work on your Web site without permission or attribution or copying an entire work or a substantial part of a copyrighted item for Internet access, without permission of the copyright holder, infringes copyright law, with potential legal penalties. Instructors must be mindful of this when selecting materials to post on course Web sites.
Single copying of, for example, a portion of a book, an article from a journal, or a poem or short story may be made for scholarly research or use in teaching. Multiple copies may be made for a course only if these do not exceed more than one copy per student, if copying meets the brevity, spontaneity, and cumulative effect tests, and if each copy includes a notice of copyright. In addition, there should be no charge beyond the cost of photocopying.
Brevity refers to the percentage of a larger work copied; an article in a journal or a chapter in a book may be acceptable whereas the total journal or book is not. Spontaneity refers to the decision to use an item in class being near to the time of use; that is, there would not be time to receive permission between reading an article in a Sunday paper and using it in a Tuesday class. Cumulative effect refers to limiting use to a single course, the amount (percentage) of a total work that is used (a relatively small percentage of an author or collective work), and limiting the instances of copying within a course.
To better understand these issues, see the “Copyright Crash Course” and view the quick start guide on "Copyright and Fair Use in Higher Education."
The Ball State Web site is also helpful; see “Distance Education Complying with The TEACH ACT”
Copyright Basics provided by the United States Copyright Office. The United States Copyright Office also provides links to copyright records, publications on the subject, legislation and much more. For more information on patents and trademarks, see U.S. Patent and Trademark Office.
See also Crews, Kenneth D. Copyright Essentials for Librarians and Educators. ALA, 2000. (Library Reserve, call # KF 2995 .C74 2000). Find this book’s “Fair Use Checklist,” along with other useful information.
Material to be placed on reserve in the Library must include a notice of copyright. If only one copy is placed on reserve, an entire article, book chapter, or poem may be used. If multiple copies are placed on reserve, according to Crews, "the amount of material should be reasonable in relation to the total amount of material assigned for one term of a course taking into account the nature of the course, its subject matter and level"; "the number of copies should be reasonable in light of the number of students enrolled, the difficulty and timing of assignments, and the number of other courses which may assign the same material"; and "the effect of photocopying the material should not be detrimental to the market for the work." [Kenneth D. Crews, Copyright, Fair Use, and the Challenge for Universities. University of Chicago Press, 1993, p. 205.]