This copyright tutorial is intended as a guide to basic issues of copyright in an academic setting, especially student-related issues. It is not intended as legal advice. UWF students, faculty, and researchers should consult with the University’s legal counsel on specific copyright issues, especially if the publication or access of a document or website will have national or world-wide distribution.

Upon completion of this tutorial, students will be able to

Define Copyright
Determine the probability of whether an item is still covered by copyright
Understand and apply the concept of “Fair Use”
Determine whether items are in the “public domain”
Name the major categories of works which are covered by copyright

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 [provides] rights granted by law to copyright owners for protection of their work. (U.S. Copyright Office Definitions http://www.copyright.gov/help/faq/)

Fair Use: Refers to guidelines related to use of copyrighted works. The “fair use test” includes consideration of these factors, often referred to as “PANE”

The Purpose and character of the use
The Amount and substantiality of the portion used
The Nature of the copyrighted work
The Effect of the use upon the potential market for or value of the copyrighted work

Public Domain: Refers to works that were once copyrighted but are no longer subject to copyright laws (usually due to expiration or failure to renew the copyright) or works created by the federal government. (Bruwelheide, Janis H. The Copyright Primer. 2nd ed. Chicago, American Library Association, 1995 p. 76). Works in the public domain may be used freely without the permission of the former copyright owner.

DMCA: The Digital Millennium Copyright Act. This amendment to the copyright law is intended to address copyright concerns in the digital environment.

A general understanding of copyright protection is important as students, faculty, and researchers make use of information resources. Copyright questions which might arise include:

When is it appropriate to copy and use materials in a research paper, a publication, a promotional flyer, or on a website?
When should permission to use a copyrighted item be requested?
Who holds the copyright?
Are the materials (research papers, thesis, dissertation, websites) that I create for my classes covered by copyright?
What does the copyright statement mean that I see on course reserve readings or articles I get through interlibrary loan?

Copyright protection covers any original work of authorship that is fixed in a tangible form of expression or can be accessed with the aid of a machine or device. A “tangible form of expression” could be a work in print or electronic format, an audio-visual format like film, tape or CD; an object like a painting or a sculpture; a production like a play or performance; or items in electronic format, including software, webpages, and games.

Copyright covers both published and unpublished works. The work does not have to be registered with the U.S. Copyright Office nor have the © symbol. Works covered include

literary, musical (including words and music), or dramatic works
pictorial, graphic and sculptural works
motion pictures and other audiovisual works
sound recordings

The length of time a work is covered by copyright protection is extensive. Basic rules in the United States include:

If published before 1923, the work is in the Public Domain
If published between 1923 and 1978 without a copyright notice, the work is in the Public Domain
Currently, copyright is held for at least 70 years after the death of the author, but copyright protection may be renewed and extended for longer periods

A chart created by Peter Hirtle, available at this website, provides a detailed outline of the current U.S. copyright law related to duration of copyright http://www.copyright.cornell.edu/training/Hirtle_Public_Domain.htm

Copyright protection does not extend to

any idea, procedure, process, system, title, principle, or discovery
works consisting entirely of information which is common knowledge and containing no original authorship such as facts, standard calendars, height and weight charts, etc.
any document which is in the public domain

Items in the public domain include

Works for which the copyright has expired and has not been renewed
Works of the U.S. Government created by government employees
Works for which the author has designated use is available within the public domain (although the author may have designated some requirements such as providing credit to the author which is known as “attribution”)

Although Congress wanted to protect the intellectual property of the author or originator through copyright laws, Congress also wanted to “promote the Progress of Science and useful Arts.” (Article I, Section 8, U.S. Constitution). To facilitate research which could lead to meeting that intent, the law contains a section known as the “Fair Use Doctrine.” Individuals may use the Fair Use Doctrine when determining whether use of a copyrighted work, without permission, is appropriate and acceptable.

There are four factors which must be taken into account in making a determination about Fair Use. A good mnemonic device for these is PANE.

The Purpose and character of the use: is the use of a commercial nature or of a non-profit educational nature
- If it is for educational purposes, the use is more likely to be considered “fair use”

The Amount and substantiality of the portion used
- If the amount used is relatively limited in relation to the work as a whole, the use is more likely to be considered “fair use”
  - For example, using 1500 words of a 350 page book may be acceptable under fair use, but using 1500 words of a children’s book like Where the Wild Things Are would be unacceptable since that constitutes the entirety of the text.
- If the portion used contains the “heart” of the work, the use is less likely to be considered “fair use.”
  - For example, if using the three main principles and samples of menus for those principles from a book on diet and nutrition may go beyond “fair use.”

The Nature of the copyrighted work
- If the nature of the work is highly factual as opposed to a creative work or one containing extensive analysis, the use is more likely to be considered “fair use”

The Effect of the use upon the potential market for or value of the copyrighted work
- If the use will keep people from purchasing the work itself, the use is less likely to be considered “fair use.”

It is not necessary that the use meet the guidelines for all of the factors, but in aggregate, it is necessary that the analysis indicate a greater likelihood of acceptability than not. Unfortunately, this analysis is not absolute. Different individuals analyzing the same scenario may reach different conclusions. If an individual, weighing the four different factors feels in good faith that the use meets the Fair Use factors, courts typically do not levy punitive damages in a copyright infringement case.

This table may be helpful in deciding whether your planned use of material might be considered “fair use.”

Favors Fair Use	Opposes Fair Use
PURPOSE
Teaching Research / Scholarship Non-Profit Educational Institution Restricted access (to students / others)	Profiting from the use Entertainment Commercial activity Open access to anyone or by payment of a fee
AMOUNT
Small quantity Portion used is not central or significant to entire work Amount is appropriate for educational purpose	Large portion or whole work used Portion used is central to work or “heart of the work”
NATURE
Published work Factual or nonfiction based Important to educational objectives	Unpublished work Highly creative work (art, novels, films, music, etc.)
EFFECT
No significant effect on the market or potential market for copyrighted work No similar product marketed by the copyright holder User owns lawfully acquired or purchased copy of original work	Could replace sale of copyrighted work Significantly impairs market or potential market for copyrighted work You made it accessible on the Web or in other public forum Repeated or long term use

* Excerpted from Complete Copyright: an Everyday Guide for Librarians, edited by Carrie Russell. Chicago, American Library Assn., 2004

See the Examples section for more clarification.

As you can see, copyright law is quite complex and is constantly evolving largely due to changes in technology. The Digital Millennium Copyright Act (DMCA) was an amendment passed in 1998 which was intended to provide guidance on questions related to use of copyrighted items through distance learning, the Internet and other future technologies. Its success has been questionable since technology advances more rapidly than the law can address.

Decisions made in copyright infringement cases will help clarify copyright law, but that will take time. In the meantime, this ambiguity works in favor of the student, teacher, educational institution and library. To date, very few copyright infringement cases have been brought against the educational establishment, and almost none have been brought against individual students or faculty except in the case of music downloading or creation of de facto anthologies or coursepacks.

This tutorial touches only the most basic points, but there are many excellent resources which provide more extensive information. These are noted in the “Resources” section. Some of the resources listed are expanded tutorials on the topic.

These illustrative examples are intended to clarify how to determine if a work is protected by copyright, and if so, how to apply the Fair Use Factors: Purpose, Amount, Nature and Effect to determine whether the proposed use appears to meet Fair Use guidelines.

Example 1
Sammy Student is writing a research paper on Nikki Giovanni and wants to include one of her poems, in its entirety, in the paper. The poem is 47 lines long. Is his use considered “fair use?”

Is the work protected by Copyright?
- Analysis: The poem is in a book, Collected Works of Nikki Giovanni, published in 1997. Nikki Giovanni is still living. The owner of the copyright may be Ms Giovanni or the publisher of the book.
- Yes, literary works are covered by copyright; the author is living; and neither the copyright term for the book nor the author has yet expired. Therefore, the work is protected by copyright.

Factor	Analysis	Is it Fair Use?
Purpose	Use is for an educational purpose. The student is doing an analytic study of the poet.	Favors Fair Use
Amount	Student is using an entire poem, not just selections from the poem.	Opposes Fair Use
Nature	A poem is a creative, original work, not factual.	Opposes Fair Use
Effect	The student’s use of the poem has no effect on the potential sale of the poem.	Favors Fair Use

Overall: This example illustrates the complexity of determining fair use. For two of the factors, the case can easily be made for fair use. For the other two factors, it appears that the use would not meet fair use standards. However, since this is a research paper to meet educational requirements for a course, and is unlikely to be published, the overall effect is that the inclusion of the entire poem would meet fair use guidelines. Fair Use

Example 2
Fiona Faculty wants her students to read a dozen short stories by different 20th century authors. To make it easy for them to find the stories, she has made copies and put them together in notebooks, one for each student in her class. She tells her students that she will only ask them to pay her for the photocopying charges - $9.00. Is her use considered “fair use.”

Is the work protected by Copyright?
- Analysis: Each of these short stories is available in a book, some are in anthologies; some are in collected stories of that author. Some of the books are owned by the library, some are in her personal library, and some are from copies which she made while she was in graduate school five years ago. Some of the authors are dead. The copyright dates on the books she has access to range from 1936 – 2001.
- Yes, literary works are covered by copyright. Although some of the authors may have died, in all probability none of them has been dead for more than 70 years. Even if they were, since the stories are included in books published over this span of time, the publishers of those books (and therefore, the stories) would still be covered by copyright. The owners of the copyright could be the authors, the heirs, or the publishers of the books. The work is protected by copyright.

Factor	Analysis	Is it Fair Use?
Purpose	Purpose of the use is educational. The faculty member is distributing copies of readings direct to her students which is allowed.	Favors Fair Use
Amount	The faculty member is using a number of short stories in their entirety.	Opposes Fair Use
Nature	The stories are creative, original works, not factual.	Opposes Fair Use
Effect	Her distribution of these stories has an impact on the potential sale of collections which might have these stories. This practice is generally known as creating a “course pack” and case law has generally not been supportive of this activity without compensation to the copyright holders.	Opposes Fair Use

Overall: This example fails to meet three of the Fair Use guidelines. There may be alternate ways for the faculty member to address her assignment. Although faculty have some latitude in distributing copies of items to students in their classes, the aggregate intent of her distribution was the creation of a separate volume for which she decided to charge. She could have instead identified an anthology which contained the requisite works and had the students purchase that. She also had the option of working with the university library to make the readings available. Not Fair Use

Example 3
Glenda Graduate Student is creating a web page and blog which will be intended for use by the parents of the children in the daycare center where she teaches. She hopes to use the experience as part of the research for her Thesis, entitled “Blogs as a Form of Communication in Parent/Teacher Relationships.” To enhance the friendly feel of the web site, she has included a variety of cartoons from comic strips like Peanuts and Hi and Lois to introduce each section of her website. Is her use of the cartoons considered “fair use?”

Is the work protected by Copyright? These are cartoons copied from newspapers in which the strips had appeared or from one of several books on contemporary comic strips.
- Yes, pictorial and graphic works are covered by copyright. Since Charles Schulz, creator of Peanuts, died in 2000, his work is still protected by copyright. Either Schulz, his heirs or his syndicate probably hold the copyright. The creator of Hi and Lois is still living. Therefore, these cartoons are protected by copyright.

Factor	Analysis	Is it Fair Use?
Purpose	Although her intent is to do research for an educational purpose, the use of the cartoons is immaterial to that. The cartoons play no critical role in what she is doing.	Opposes Fair Use
Amount	She is using entire comic strip segments.	Opposes Fair Use
Nature	The cartoons are creative, original graphic works, not factual.	Opposes Fair Use
Effect	Although her use of the cartoons has minimal or no effect on their sale or value, there is a complicating factor. By putting them on an open webpage, she has created the potential for others to assume that they may use the cartoons as well without seeking permission.	Opposes Fair Use

Overall: Because of easy accessibility to Internet websites, use of copyrighted works is more visible and under greater scrutiny. Web site authors should be especially sensitive to the use of material if they are unable to determine whether they are protected by copyright. Use of obviously copyrighted works should be discouraged unless permission has been obtained and acknowledged. Just because one finds use of a Peanuts cartoon on one website does NOT mean that cartoon may be used on their site as well. Not Fair Use

Example 4
Sarah Student is developing a research project for her Marketing class. She plans to include an entire demographic chart from The Statistical Abstract of the United States, an annual statistical manual published by the federal government, available both in print and on the Internet. Does her use meet Fair Use guidelines?

Covered by copyright?: Copyright generally does not cover most U.S. government documents. There are exceptions, but that topic is for a more advanced tutorial.
- No, this document is not covered by copyright. It is in the Public Domain.

Overall: This example illustrates the complexity of determining fair use. For two of the factors, the case can easily be made for fair use. For the other two factors, it appears that the use would not meet fair use standards. However, since this is a research paper to meet educational requirements for a course, and is unlikely to be published, the overall effect is that the inclusion of the entire poem would meet fair use guidelines. Fair Use

Example 5
Larry Librarian is a serious movie buff. He participates on an interactive movie blog which has probably 150 -200 participants and is adding new folks every day. Larry has just recently downloaded a short film, “How High is High,” from a pay-per-view site and wants to share 15 of its 40 minutes with his buddies in the blog group, ostensibly to educate them about this new short-film director, Best Buddy Bohannon. Is Larry’s use covered by Fair Use Guidelines?

Covered by Copyright? Motion pictures and other audio visual works are protected by copyright.
- Yes, the short film is protected by copyright.

Factor	Analysis	Is it Fair Use?
Purpose	Though Larry is a librarian and though his stated purpose is to educate, he is not acting under the auspices of a non-profit educational entity.	Opposes Fair Use
Amount	Distributing over one-third of the film exceeds guidelines included in the Digital Millennium Copyright Act.	Opposes Fair Use
Nature	The film is a creative work, not factual.	Opposes Fair Use
Effect	Free distribution of a portion of this work might actually enhance the demand for the film since fellow bloggers might want to see how it ends. However, it is equally possible that it will negatively affect the sale or rental of the film.	Opposes Fair Use

Overall: The proposed use fails to meet Fair Use Guidelines on all counts. This illustration was included to demonstrate that it is actually illegal, from a copyright perspective, to download and share media, unless the copyright holder has waived his/her/its rights to the materials.

Requesting Copyright Permission It is still possible to use copyrighted material even though the proposed use fails to meet Fair Use Guidelines. In those cases, it is necessary to seek permission from the person or organization holding the copyright. Who holds the copyright is not always easy to ascertain, but there are some general rules of thumb with which to start:

Print materials (whether available as print or electronic format): the publisher or the author
Music: the producer, record company or artist
Movies: the studio
Photographs/Graphics: the photographer or artist or organization for which they work or to which they sold the item
Websites: the webmaster or author or organization

The U.S. Copyright Office provides a brochure providing advice on how to determine the copyright status of a work http://www.copyright.gov/circs/circ22.pdf

When you are unsure where to turn to find the copyright holder, there are some industry organizations which can help. A very good overview of these organizations, organized by format of material, is on a website, “Getting Permission,” produced by the University of Texas http://www.utsystem.edu/ogc/intellectualproperty/permissn.htm

Here are some related resources that you can use if you'd like to learn more about this particular topic.

Basic Resources

United States Copyright Office. http://www.copyright.gov/
Copyright Clearance Center. http://www.copyright.com/ccc/do/viewPage?pageCode=cr100-n
Russell, Carrie. Complete Copyright: an Everyday Guide for Librarians. American Library Association, 2004.

Tutorials

Scholarly Communication Center. North Carolina State University Libraries. “Copyright Ownership” and “Copyright Use” in Tutorial Series http://www.lib.ncsu.edu/scc/tutorial/index.html
University of Texas. Copyright Tutorial. http://www.lib.utsystem.edu/copyright/
The © Primer. Center for Intellectual Property, University of Maryland University College http://www-apps.umuc.edu/primer/enter.php# (Excellent interactive copyright tutorial)
A Visit to Copyright Bay. http://www.stfrancis.edu/cid/copyrightbay/ (Copyright tutorial)

Directories

Copyright and Fair Use. Stanford University. http://fairuse.stanford.edu/ : Directory of information sources regarding copyright and fair use
Librarians’ Index to the Internet. http://lii.org : Search “copyright” for over 100 links to copyright-related resources.
Music Publishers’ Association. http://www.mpa.org/copyright/copysearch.html : Provides information on locating the owner of copyright for music.
The WATCH File: Writers, Artists and Their Copyright Holders. http://tyler.hrc.utexas.edu/ : Provides contact information for the copyright holders or contacts for many authors and artists.
Protecting Your Website from Online Thieves. Grantastic Designs. http://www.grantasticdesigns.com/siteprotection1.html

Articles

Biehl, Kathy. (2004) Bloggers Beware: Debunking Eight Copyright Myths of the Online World. Retrieved July 6, 2005 from http://www.llrx.com/features/bloggersbeware.htm
Jassin, Lloyd J. (2004) Locating Copyright Holders. Retrieved July 6, 2005 from Copylaw.com http://www.copylaw.com/new_articles/permission.html

Now it’s time to test what you’ve learned. Click here to test your knowledge. Be sure to print out your score or e-mail it to yourself or your instructor as proof that you have completed this tutorial.

Helen Wigersma

hwigersma@uwf.edu

August 12, 2005