Copyright law is based on the principle that the producer of intellectual property is entitled to control its production and benefit financially from its use. Balancing this, the law also recognizes the public’s interest in having copyrighted material as widely available as possible in order to support education, research and artistic creativity. The law has evolved considerably over the past 30 years in response to technological changes affecting production and distribution of print and non-print media. The trend has been to increase the legal restrictions on users of copyrighted material, particularly with respect to digital video and sound recordings. Because copyright restrictions and exceptions are often confusing, and following them can be inconvenient, it is essential for the college to have policy guidelines and procedures that meet legal requirements without unduly restricting teaching and research.
In general, the law says that the holder of copyright on a book, article, film, picture, etc, has the “exclusive right to reproduce, distribute, perform, display, or license his [or her] work”. Within the law, however, there are exceptions that allow limited copying for educational and research purposes and as a matter of “fair use”. Unfortunately, fair use is often a matter of judgment and potential disagreement, and there is an extensive body of case law, discussion and commentary concerning what is or is not permitted. Rather than produce another extended review, we will provide guidelines for the faculty using copyrighted material and identify the administrative structure that supports and facilitates this use.
The following sites provide extensive discussions of copyright. Note that the policies at these and other institutions may be more or less restrictive than those followed at Stonehill.
Cornell University Law School http://www.law.cornell.edu/wex/index.php/Copyright
University of Texas http://www.utsystem.edu/ogc/intellectualproperty/cprtindx.htm#top
Stanford University http://fairuse.stanford.edu/index.html
Indiana University http://copyright.iupui.edu/index.htm
Who holds the copyright?
Copyright is typically held by a work’s author or estate, the institution where the work was produced or by the publisher.
How long does copyright last?
For works published after 1977, copyright lasts the lifetime of the author plus 70 years. In some cases, including works published anonymously or under a pseudonym, the copyright period ranges from 95 to 120 years. Books published in the United States prior to 1923 are considered to be in the public domain. Note that whether or not a title (book, film, etc.) is currently in print does not affect its copyright status. Out-of-print and public domain are entirely different categories.
Remember that translations, critical editions with annotations and similar edited materials are almost certainly under copyright even if the original text is not. Also, note that copyright is automatic, regardless of whether something has the copyright symbol or statement or even whether or not it has been published.
What isn’t covered?
There are also some exceptions to copyright as a matter of government policy or the producer’s deliberate intent. These include material published by the US Government Printing Office (government documents), or items such as Open Source publications on the web, that are clearly identified as not being under copyright. In addition, purely factual material or lists, e.g., the phonebook, cannot be copyrighted. Finally, as noted, a work goes into the public domain once its copyright has expired.
What may I copy without obtaining permission?
Making copies of a work is the exclusive right of the copyright holder, but there are educational exceptions to this restriction. You are allowed to make a copy of an article for your own use in research or teaching. You are also allowed to distribute copies of an article or a portion of a book to your class, and to make copies of short excerpts from a film or films to show in class, as long as the material copied is not a significant portion of the work. (Note: You may show an entire film or other dramatic work in class as long as it is a legally obtained version, such as a DVD from the library.)
When do I need permission to copy?
You need to obtain permission if your use goes beyond fair use (see below). In general, this would happen if you copied large segments of a work, e.g., an entire issue of a journal (even if it only consists of one long article) or a significant portion of a book.
How do I obtain permission to use material in a course?
In most cases, obtaining permission means that the college will pay a fee to the copyright holder for the right to use an item for one course in one semester. The copy center and library will normally do the work of obtaining permission for course packs or reserves, respectively.
What about a published article that I wrote?
You may need to obtain permission to use an article even though you are the author, since journals frequently hold the copyright for the articles they publish. You should determine a journal’s policy and, if necessary, negotiate to retain or share copyright before publishing.
What is Fair Use?
“Fair use” is described in the copyright law (Title 17, Sec 107) as follows:
§ 107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A[on the rights of copyright holders], the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the 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 fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
Fair use is determined on a case by case basis. To determine if something would be considered fair use, you need to consider each of the four factors. A preponderance of factors should support the claim to fair use. The college has a standard check-list available to help you decide of you are making fair use of copyrighted material.
- Purpose and character: Fair use allows copying to support teaching at a non-profit institution, so this factor would always count in favor of fair use for course related materials. This also covers a copy you make for yourself to use in your research. (Fair use covers research and teaching, but not scholarly publication. You would need permission to include copyrighted material, such as photographs, when you publish an article or book.)
- Nature of the material: A claim of fair use is stronger for an academic article or other non-fiction than for creative/artistic works.
- Amount and substantiality: The law does not explicitly quantify how much may be used or for how long.
a) The widely cited guide or “safe harbor” limits copying to no more than 10% of a publication, although fair use usually extends beyond this. However, a very small portion (well under 10%) that contains the “essence” of the whole work may be held to violate the substantiality limit if it harms the market for a work.
b) Although the law does not explicitly mention how long or how often something may be used for teaching, it is generally accepted that a copy should only be used for as long as necessary to meet instructional needs in a course.
c) There is no explicit limit on repeated use of a copy. The “safe harbor” for repeated use is to obtain permission if something is used for more than one semester, e.g., each time the course is offered.
- Effect on the potential market for a work: You are not allowed to copy and distribute an entire book (even if it is out of print), a standardized test or a workbook. Publications that are intended to be consumable cannot be copied and distributed under the principle of fair use.
A faculty member may make multiple copies of an article for use in class and distribute them to students independently.
You may show a legally obtained movie (DVD, video cassette, etc.) or play a sound recording for your class without seeking permission. Making a work available to wider audience, e.g., showing a film on a campus wide cable television, would not be legal unless we had performance rights. (The library’s catalog indicates when we have purchased performance rights for a title.)
Student projects using excerpts from films or recordings may be shown in class. They may be posted on course pages provided the pages are password protected and the class includes review and discussion of the student projects.
Course packs are compilations of articles, chapters and other texts that are bound together for use in a particular class. Courts have ruled that course packs require permission if they are produced by a commercial copying firm. Although some experts claim these rulings do not apply to copying done by (non-profit) college copy centers, most schools assume that permission is required, and this is Stonehill’s policy.
- Submit requests with original documents or full citations to the copy center.
- All materials included in a course pack must include the original copyright notice (who owns the material) and attribution to the source.
- Under no circumstances may a course pack include an entire book or journal, or material taken from consumables such as workbooks, lab manuals or standardized tests.
- Charges to students for course packs may only be used to recover production costs and immediate overhead, including royalty fees. (This allows a bookstore to include a reasonable markup for managing the distribution of a course pack.)
CoursePlace (or other course management system)
Posting something on a computer network is considered a form copying and distribution. Access should be limited to members of a single class through the use of passwords or similar controls, and a CoursePlace (or similar) site would meet this requirement.
Online articles: If the library has an electronic subscription, you should link to a stable URL for the article you want. To see if we have an electronic subscription to a journal, go to the following link and search the journal’s title. http://atoz.ebsco.com/Search.asp?id=shcg (This link is under the Full Text Journals heading on the library’s home page.) The periodicals librarian will also be happy to help you determine if we have a subscription. If you anticipate continued use of a journal that the library does not own, you should ask the library to subscribe to the journal.
Books or print journals: You may scan the material and post it as long as it meets the requirements for fair use. For each item:
(a) You must include a copy of the page containing the copyright statement from the original publication, a complete citation, and a statement that the material is covered under Title 17of the US Code.
(b) You should keep in mind the substantiality considerations of fair use in deciding how much of a work to post. However, the law does not specify a limit. As noted above, it is widely accepted that one article from a journal or no more than 10% of a book meet the substantiality requirement (i.e., 10% represents a “safe harbor”), but fair use would usually allow larger excerpts.
Video or sound recordings: You may show an entire film, play or other artistic performance in class without obtaining permission. You may post excerpts from movies on your course page provided the page is password protected and only accessible by your students; also, the material should be posted using technology that prevent further copying, even by your students. You should limit the amount of time the material is available on the course site.
It is strongly recommended that you make use of the library’s electronic reserves system (ERes) rather than posting copyrighted material directly on your course page. To do this, please contact the circulation department in the library (508-565-1313). Please also keep in mind that the library will put hard copies of books, journal articles, DVDs and music CDs on reserve if there are copyright restrictions to online posting.
Paper and hard copy reserves: the library will put books, videos, sound recordings and articles on reserve, following fair use guidelines. When it is determined that a reserve request exceeds fair use, the library will seek permission from the copyright owner.
Electronic: The library follows the fair use guidelines for electronic reserves and requests permission from the copyright owner if putting the item on reserve would exceed fair use.
(a) Faculty should provide hard copy or full citations and include the original copyright notice and attribution;
(b) For material from books or hard copy journals where no electronic version is owned, we will scan articles or chapters following the fair use guidelines;
(c) We will seek permission if the amount of material being posted would exceed fair use.
(d) The library may refuse to post material if in our judgment it would exceed fair use and we are unable to obtain permission from the copyright holder. In such cases, the library will place the original book, DVD/video or journal on reserve.
Copyright Policy Committee
If you have any questions regarding copyright, please contact the Access Services Dept. at 508-565-1313