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Stony Brook University



Copyright, Fair Use & the Creative Commons: Definitions & Glossary

This guide provides students, faculty and staff information and resources for copyright, fair use and the Creative Commons.

Fair Use

Photocopying Guidelines for Teaching and Research:

For our purposes, we will concentrate on concerns as to fair use of copyrighted materials in teaching and instruction and for research, broadly construed. There are important differences depending on whether a document or work is in the public domain or not.

Works in the Public Domain:

If a work is in the public domain, one has unrestricted photocopying privileges. Generally speaking, these include several categories of materials:

  1. Published works that were never copyrighted
  2. Works published before 1923
  3. Works published before 1989 which do not contain a notice of copyright, unless that work “has been rescued” subsequently and now is copyrighted. Any work published after March 1, 1989 is protected by copyright even if no notice of copyright is present.
  4. Published works with expired copyrights: Copyrights dated 75 years or more prior to the current year may or may not have expired, depending on whether the copyright owner renewed the copyright after the first term of protection
  5. Government publications


Works not in the public domain:

Ordinarily, copying copyrighted material without the permission of the copyright owner is a violation of the owner’s copyright. The copyright law, however, creates limited exemptions to allow copying for face-to-face teaching or “fair use.” Under fair use, a teacher or researcher is allowed a limited amount of copying. There are some works of which copying is completely unrestricted. There are other materials for which copying is always forbidden.

There is no clear-cut test for evaluating fair use and not all educational uses are fair uses. Furthermore, the rules apply wherever the copying is done; in other words, using on-campus or off-campus copy shops, the same guidelines apply.


How do I know if my intended educational use is a fair use?

There are four essential factors that determine whether a use is a fair use. The following four questions serve as guidelines only. The answers to each of these questions are often weighed in an imprecise way by the courts, but you can feel secure that yours is a fair use if you meet all of these criteria, less so, though not necessarily in violation of copyright law, if you only meet a few.

  1. What is the purpose of the use? Educational purposes and single copies for non-profit or personal use are more likely fair use. Uses for commercial purposes would require permission.
  2. What is the nature of the material? Factual, scientific information, or historical data favor fair use. Creative fiction, unpublished works, music, novels, films, plays would most likely require permission.
  3. How much of the work will be used? If the amount is a small proportion of the work, it is more likely to be considered a fair use. A substantial portion or central portion of the work would require permission.
  4. What is the effect of the use of the copied materials on the market of the original work? If the use would deny the owner of the copyright his/her due, then the use would not be deemed a fair use. If the user owns or has purchased the original work and this is one of few copies made which does not affect the potential market for the original, this would be an application of fair use.

TEACH Act

Copyright and Blackboard from Wake Forest University

The TEACH Act

On November 2, 2002, the "Technology, Education and Copyright Harmonization Act" (aka the TEACH Act), was signed into law by President Bush. This act provides relatively specific guidelines as to what uses are and are not fair uses with respect to copyrighted materials and the use of such on-line instructional programs as Blackboard . The TEACH Act is an effort more clearly to define how digital works may be used in online education.

In order for the TEACH Act to apply, one must meet all the following criteria:

  • The institution must be a nonprofit accredited educational institution or a governmental agency
  • The institution has a policy on the use of copyrighted materials
  • The institution provides accurate information to faculty, students and staff about copyright

  • The institution’s systems will not interfere with technological controls within the materials you want to use

  • The materials you want to use are specifically for students in your class

  • Only those students will have access to the materials

  • The materials will be provided at your direction during the relevant lesson

  • The materials are directly related and of material assistance to your teaching content

  • Your class is part of the offerings of the institution

  • You will include a notice that the materials are protected by copyright

  • You will use technology that reasonably limits the students' ability to retain or further distribute the materials

  • You will make the materials available to the students only for a period of time that is relevant to the context of a class session

  • You will store the materials on a secure server and transmit them only as permitted by this law

  • You will not make any copies other than the ones you need to make the transmission

  • The materials are of the proper type and amount the law authorizes:

  • Entire performances of nondramatic literary and musical works
  • Reasonable and limited parts 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 

 

  • The materials are not among those the law specifically excludes from its coverage:
    • Materials specifically marketed for classroom use for digital distance education
    • Copies you know or should know are illegal
    • Textbooks, coursepacks, electronic reserves and similar materials typically purchased individually by the students for independent review outside the classroom or class session
  • If you are using an analog original, you checked before digitizing it to be sure:
    • You copied only the amount that you are authorized to transmit
    • There is no digital copy of the work available except with technological protections that prevent your using it for the class in the way the statute authorizes

In general, you may assume that 1) with the provision of this policy, 2) if you use Blackboard in your courses, and 3) if you abide by the other specific provisions that relate to the kinds of materials used, you will meet the general provisions of the TEACH Act as described above.

See also the TEACH Act explained by the UT System

Glossary

Author

Under the copyright law, the creator of the original expression in a work is its author. The author is also the owner of copyright unless there is a written agreement by which the author assigns the copyright to another person or entity, such as a publisher. In cases of works made for hire, the employer or commissioning party is considered to be the author. (US Copyright Office)

Copyright

A form of protection provided by the laws of the United States for “original works of authorship” including literary, dramatic, musical, architectural, cartographic, choreographic, pantomimic, pictorial, graphic, sculptural, and audiovisual creations. “Copyright” literally means the right to copy, but has come to mean that body of exclusive rights granted by law to copyright owners for protection of their work. Copyright protection does not extend to any idea, procedure, process, system, title, principle, or discovery. Similarly, names, titles, short phrases, slogans, familiar symbols, mere variations of typographic ornamentation, lettering, coloring, and listings of contents or ingredients are not subject to copyright. (US Copyright Office)

Copyright Infringement

As a general matter, copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner. (US Copyright Office)

Copyright Notice

A copyright notice is an identifier placed on copies of the work to inform the world of copyright ownership that generally consists of the symbol © or word “copyright (or copr.),” the name of the copyright owner, and the year of first publication, e.g., ©2006 John Doe. While use of a copyright notice was once required as a condition of copyright protection, it is now optional. Use of the notice is the responsibility of the copyright owner and does not require advance permission from, or registration with, the Copyright Office. Though a copyright notice is no longer legally required to secure copyright on works first published on or after March 1, 1989, it does provide legal benefits. (US Copyright Office)

Derivative Work

A work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”. (US Code - http://www.copyright.gov/title17/92chap1.html#101)

Fair Use

One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the Copyright Act (title 17, U.S. Code). One of the more important limitations is the doctrine of “fair use.” Although fair use was not mentioned in the previous copyright law, the doctrine has developed through a substantial number of court decisions over the years. This doctrine has been codified in section 107 of the copyright law.

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

  1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. 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 distinction between “fair use” and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.” (http://www.copyright.gov/fls/fl102.html)

Intellectual Property

According to the World Intellectual Property Organization (WIPO), intellectual property “refers to creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce. Intellectual property is divided into two categories: Industrial property, which includes inventions (patents), trademarks, industrial designs, and geographic indications of source; and Copyright, which includes literary and artistic works such as novels, poems and plays, films, musical works, artistic works such as drawings, paintings, photographs and sculptures, and architectural designs. Rights related to copyright include those of performing artists in their performances, producers of phonograms in their recordings, and those of broadcasters in their radio and television programs.”

Intellectual property is intangible - it cannot be identified or defined by its own physical parameters but rather must be expressed in some discernable way in order to be protected. Like real and personal property, intellectual property is an asset and can be bought, sold, licensed, exchanged or given away; the intellectual property owner also has the right to prevent the unauthorized use or sale of the property. There are four types of intellectual property: copyrights, trademarks, patents, and trade secrets.

Open Access

Open access material is digital, online, and free of price and permission barriers.

According to the Bethesda Statement on Open Access Publication (released June 20, 2003), Open Access Publication is one that meets the following two conditions:

  1. The author(s) and copyright holder(s) grant(s) to all users a free, irrevocable, worldwide, perpetual right of access to, and a license to copy, use, distribute, transmit and display the work publicly and to make and distribute derivative works, in any digital medium for any responsible purpose, subject to proper attribution of authorship, as well as the right to make small numbers of printed copies for their personal use.
  2. A complete version of the work and all supplemental materials, including a copy of the permission as stated above, in a suitable standard electronic format is deposited immediately upon initial publication in at least one online repository that is supported by an academic institution, scholarly society, government agency, or other well-established organization that seeks to enable open access, unrestricted distribution, interoperability, and long-term archiving.

Public Domain

The public domain is not a place. A work of authorship is in the “public domain” if it is no longer under copyright protection or if it failed to meet the requirements for copyright protection. Works in the public domain may be used freely without the permission of the former copyright owner. (US Copyright Office)

TEACH Act

The "Technology, Education and Copyright Harmonization Act" (the TEACH Act), part of the larger Justice Reauthorization legislation (H.R. 2215), was signed into law by President George W. Bush on November 2, 2002. The TEACH Act redefines the terms and conditions on which accredited, nonprofit educational institutions throughout the U.S. may use copyright protected materials in distance education - including on websites and by other digital means - without permission from the copyright owner and without payment of royalties. For a much more detailed discussion of the TEACH Act, see the American Library Association’s discussion (http://www.ala.org/ala/issuesadvocacy/copyright/teachact/faq.cfm)