Why is Copyright so Complicated?

There are exceptions to what works can be copyrighted
(and when a copyrighted work can used without permission)

 

As we've seen, our constitutional system requires limits on copyright as a way to assure that copyright holders do not too heavily influence the development and distribution of our culture.
Lawrence Lessig

Therefore, a primary consideration must be whether use of small unpaid excerpts, which will slightly limit the amount of permissions income paid to authors and external editors of copyrighted books, would discourage authorship of new academic books.
Judge Orinda Evans
Cambridge University Press; Oxford University Press, Inc.; Sage Publications, Inc . v. Mark P. Becker et.al.
Civil Action No. 1:08-CV-1425-ODE, United States District Court, Northern District of Georgia, Atlanta Division

 

This is where it gets more complicated – there are both works exempt from copyright and situations where copyrighted work can be used without permission. Sections 107-122 of the copyright law list these exceptions, who can use them, and under what circumstances.

  • Some exceptions, like Fair Use (17 USC §107), require you to weigh different criteria, including the amount and nature of the work and the impact the use will have on the market value and with others purchasing the work.
  • Other exceptions like the TEACH act (an amendment of Section 110(2)), have a checklist where all of the conditions must apply.
  • Other exceptions like Sections 111-122 apply to instructors and libraries in special cases.

What is exempt from copyright?

  • An idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated or embodied (17 USC §102)
  • Any work from the U.S. Government (17 USC §105)
  • Any work whose copyright term has expired

So what exceptions can I use when teaching in the classroom?

Performance and display in the classroom (17 USC § 110 (1))
This section covers face to face teaching situations. It allows the instructor to use portions (or perhaps the entire content) of copyrighted works for the purposes of instruction. It covers all media including movies and images.

There are helpful guides to help determine if a work can be allowed in classroom:

Copyright Metro - Baruch College's Guide to Using Copyright Media in the Classroom

Digital Rights Image Computator (Visual Resources Association)

Distance Education: the TEACH Act (17 USC § 110(2))

This covers distance education or virtual classroom activities. The guidelines for distance education are different than those for a face to face teaching environment. The TEACH Act, amends Section 110(2) to include a list of factors for online classroom use.

Guide to the TEACH Act (University System of Georgia)

TEACH Act Checklist (University of Northern Iowa)

TEACH Act Flow Chart (Scholarly Communications @ Duke, Duke University Libraries)

Fair Use (17 USC §107)

Fair Use can be used a third option if a use might not be permissible under either Sections 110(1) or 110(2). It allows you to use a portion of the work, considering a balance of four factors. This is the most complex and nuanced of all the exceptions, and there are a variety of helpful sites to consult for a fair use analysis:

One of the best examples of Fair Use is this short video from the Center for Internet and Society at Standford Law School:

A Fair(y) Use Tale

Fair Use Image

Fair Use Evaluator (Michael Brewer, ALA Office for Information Technology Policy)

Fair Use Evaluator

Checklist for Fair Use (Copyright Advisory Office, Columbia University Libraries/Information Services)

 Checklist for Fair Use

 

What about libraries? Do they have exceptions, too?

They sure do! Libraries also have exceptions to allow for lending of books, course reserves, and making preservation copies of works.

Reproduction by Libraries and Archives (17 USC §108)

Libraries and archives have special permissions to make copies for preservation - specific conditions must are met. Some online tools summarize and help determine if your use is allowed:

Section 108 Spinner (ALA Office for Information Technology Policy)

 Section 108 Spinner

Section 108 (Columbia University Libraries/Information Services Copyright Advisory Office)

First Sale (17 USC §109)

This copyright exception allows libraries to circulate copies of works purchased. Library collections that are licensed, like some e-books and journals, cannout use the first sale exception, since the license may contain terms and conditions that alter copyright permissions.

Copyright in the Library: the Digital Library (Copyright Crash Course, University of Texas at Austin)

 

Fair Use (17 USC §107)

Libraries can make fair use decisions just like course instructors to use portions of copyrighted works. Course reserves is one example of how fair use is used to provide access to works. Just like course instructors, libraries need to weigh the four factors when making a decision to use a work without permission.

What is Fair Use? (American Library Association)

 

What about the other exceptions? How do they affect me?

Some of other exceptions cover situations outside academia. Examples include making copies of works for the disabled (Section 121), requiring licenses to be obtained for playing copyrighted msucial works (Section 115) and allowing users to make software backup copies (Section 117).

 

Back to the homepage for Copyright Demystified

 

Questions? Contact the Libraries' Scholarly Communications Officer: Elizabeth Brown, (607) 777-4882.

Last Updated: 8/19/13