Questions & Answers on Copyright for the Campus Community

Q&A Concerning Copying Print and Digital Works
  1. What is copyright? What does it protect? How long does it last?
    Copyright is the right granted by law to an author or other creator to control the use of the work created. The copyright law grants owners of copyright (authors, other creators and publishers) the sole right to do or allow others to do each of the following acts with regard to their copyrighted works:
    • to reproduce all or part of the work
    • to distribute copies (including by transmission through the internet)
    • to prepare new (derivative) versions based on the original work
    • to perform the work publicly
    • to display the work publicly
    Copyright protection covers both published and unpublished works. The fact that a previously published work is out of print does not affect its copyright. This protection exists to foster and induce the creation of all forms of works of authorship. These works include books, newspapers, magazines, computer software, multimedia works, sound recordings, audio-visual works, dissertations, research papers, photographs and other works. The copyright law protects works by providing fair returns to creators and copyright owners. To the extent copies are made without permission, publishers and authors, including faculty, are deprived of revenues in the very markets for which they have written and published. Such unauthorized and uncompensated copying could severely reduce their incentive to create new materials in all formats.

    Copyright protection in works created from Jan. 1, 1978 on generally lasts for 70 years after the author’s death. Copyright protection in works created between Jan. 1, 1923, and Dec. 31, 1977, generally lasts 95 years from first publication. Copyright in works created by businesses or as a “work made for hire” can last for 95 years from publication. After a work is no longer protected, it falls into the public domain. A handy table summarizing information about duration of copyright is available at: www.unc.edu/~unclng/public-d.htm, and a more detailed summary is available at www.press.uchicago.edu/Misc/Chicago/copyright.html (see part IV).


  2. What types of works can claim copyright protection?
    Copyright protection exists in “original works of authorship” that are “fixed in a tangible medium of expression.” Among the types of works that are subject to copyright protection are literary, dramatic, musical, choreographic, pictorial, graphic, pantomime, sound recording, sculptural, motion picture, and audio-visual. These categories include reference works (including dictionaries), video cassettes, DVDs, and computer programs and databases. Works are protected in any medium, such as print, digital, or online.

    Copyright protection does not extend to facts, ideas, procedures, processes, systems, concepts, principles, or discoveries. However, a work such as a database and other compilation of facts, or literary work that incorporates ideas along with other expression is protected by copyright.


  3. How do I find out who owns the copyright for a particular work?
    You should consult the location on the work or packaging containing the copyright notice (such as the copyright page in a book, or a link to a “copyright / legal” page on a website), as well as any acknowledgments. If you have a photocopy or other reproduction that does not contain a notice of copyright or acknowledgments, consult an original copy of the work.

    Most works contain a copyright notice, but because copyright ownership can be transferred after publication, your copy may not identify the current copyright owner. Works published after March 1, 1989, are not required to carry a copyright notice in order to be protected under the law. Therefore, the absence of a copyright notice does not mean that the work in question may be freely copied.

    If the work does not contain a copyright notice, the notice is no longer accurate, or you are unable to locate the person or entity identified in the notice, the first step in determining ownership is to contact the publisher of the work that you wish to copy. In most cases the publisher will either control the rights or be able to refer you to the current owner. For unpublished works, permission to copy must be obtained from the author of the work. If these steps prove unsuccessful, you should contact the U.S. Copyright Office. The U.S. Copyright Office maintains records of registered works by author and title, some of which may be searched online at www.copyright.gov/records/. For more information, ask the Copyright Office to send you Circular 22, “How to Investigate the Copyright Status of a Work,” by phoning (202) 707-9100, or going to www.loc.gov/copyright/circs.


  4. What are the penalties for copyright infringement?
    Civil and criminal penalties may be imposed for copyright infringement. Civil remedies can include an award of monetary damages (substantial statutory damages, which, in cases of willful infringement, may total up to $150,000 per work infringed, or actual damages, including the infringer’s profits), an award of attorney’s fees, injunctive relief against future infringement, and the impounding and destruction of infringing copies and of equipment used to produce the copies.


  5. What is "fair use?" How does it affect copyrighted material?
    Fair use” is a defense to an allegation of infringement under the U.S. copyright law that excuses otherwise infringing limited use of portions of a copyrighted work without the copyright owner’s permission for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. There are no black - and - white rules for determining whether a particular activity may be considered a permissible fair use. Instead, Section 107 of the Copyright Act establishes four basic factors that must be considered in deciding whether a use constitutes fair use. These factors are:
    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;
    4. The effect of the use upon the potential market for or value of the copyrighted work.
    No one factor alone determines a person's right to use a copyrighted work without permission.


  6. Is all copying by educational institutions fair use?
    No. Although Section 107 of the Copyright Act includes teaching, scholarship, and research along with making “multiple copies for classroom use” among the uses of copyrighted works that may qualify as fair use, none of these uses automatically qualifies as a fair use. Both Congress and the Supreme Court have rejected the notion that all "educational uses" or all uses by educational institutions are fair uses. Whether copying for these or any other uses constitutes “fair use” must be determined, within the facts and circumstances of each particular use, by application of the four statutory criteria enumerated in Section 107. Be aware that the commercial or for-profit nature of custom coursepacks (anthologies) compiled and sold on college campuses weighs against the first factor of “fair use” (see question 5 above) even though such use lies within an educational setting. Such use requires permission directly from the publisher, or from the publisher’s licensing representative, such as the Copyright Clearance Center. Section 110 of the Copyright Act contains limited exemptions for certain uses of copyrighted materials in “face-toface” classroom situations or in "instructional broadcasting" programs conducted by nonprofit educational institutions, but there is no blanket exemption from copyright liability for educational uses or uses by educational institutions.


  7. Are there guidelines for educators and students to decide what is a fair use?
    Yes. To help students and educators decide whether fair use permits them to copy a work without permission, representatives of educators, authors, and publishers have created several sets of negotiated guidelines. Two sets of such guidelines, known as the "Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with Respect to Books and Periodicals" and the "Guidelines for Educational Uses of Music," were explicitly accepted "as part of their understanding of fair use" by the House and Senate conferees when Congress enacted the most recent comprehensive reform of U.S. copyright law in the Copyright Act of 1976. (See Appendix A - Guidelines for Classroom Copying.)

    For more information about fair use and guidelines, ask the U.S. Copyright Office to send you Circular 21 - Reproduction of Copyrighted Works by Educators and Librarians. The Copyright Office can be reached at (202) 707-9100, and at www.loc.gov/copyright/circs.


  8. What were the Kinko's and Michigan Document Services cases, and how did they affect college bookstores and copy shops that produce and sell customized course anthologies?
    Both were key cases related to fair use. The decisions in both cases provide the most relevant judicial guidance about copyright law as it pertains to coursepacks, indicating that making and selling coursepacks without permission of the copyright owner are likely to be infringing unless the statutory “fair use” criteria of Section 107 of the Copyright Act are met. Trial records from these cases showed that college stores were already operating legitimate custom publishing operations after obtaining permission from the copyright owners and producing custom anthologies containing authorized excerpts. The court decisions supported the practices of these stores. (See Appendix B for further details.)

    The Kinko’s case refers to a lawsuit for copyright infringement against Kinko’s Graphics Corporation in 1989 by eight book publishers. The Court held that Kinko’s practice of unauthorized photocopying of multipage excerpts from copyrighted works to create coursepacks for sale violated the publishers’ copyrights. Kinko’s practice of copying without permission deprived publishers and authors of royalty income. The decision prohibited unlawful reproduction and sale of anthologies made without copyright permission.

    The Michigan Document Services (MDS) case in 1996 was a lawsuit for copyright infringement against Michigan Document Services, Inc., by three publishers including Princeton University Press. The publishers challenged MDS’s production of coursepacks containing excerpts of copyrighted works without permission. The Sixth Circuit of the U.S. Court of Appeals upheld a lower-court ruling that this educational use of illegally copyrighted materials was not fair use.


  9. Will faculty members who assign customized course anthologies, or the colleges at which they teach, be liable for copyright infringement?
    Anyone who violates any of the exclusive rights of the copyright owner is an infringer. In 1983, a number of publishers coordinated a suit against New York University and nine professors for creating similar coursepacks. The action was settled with the adoption of certain procedures by NYU. Since that time, faculty and school administrations have generally been sensitive to the copyright law and have widely followed the Classroom Guidelines (see Appendix A), with respect to printed coursepacks.


  10. What are e-reserves? How do e-reserves differ from printed coursepacks for copyright purposes?
    The term “e-reserves”—short for “electronic reserves”—is commonly used to describe course readings that are digitized and made available on an academic department or library network site to students enrolled in the class. Students usually each need a password to access the readings and then may download and print their own copies. Unlike traditional paper reserves, posting readings in e-reserves always requires making copies of the original materials, and e-reserve systems typically make the readings available simultaneously to all students in the class, anywhere or anytime they choose. Permissions must be cleared for such use of materials in an e-reserve system just as they must be cleared for use in coursepacks.

    Please see the AAP FAQ’s on E-Reserves. These are available online at: www.publishers.org/press/releases.cfm?PressReleaseArticleID=204.


  11. How do principles of “fair use” in copyright law apply to materials included in e-reserve systems?
    The statute avoids specific answers and directs us to consider the four factors equally when determining if a particular use is "fair use," and it is always best to remind ourselves that "fair use" is an “affirmative defense” to an action for infringement of the exclusive rights of copyright. An affirmative defense means that infringement occurred, but it was legally excused.
    As a general rule, if use of the content would not be considered “fair use” in hard copy, it is not likely to be considered “fair use” in digitized form, whether as part of an e-reserve system or otherwise.

    The applicability of “fair use” principles to materials in e-reserve systems will, as in all “fair use” cases, depend on the particular facts and circumstances involved. For example:
    1. If the use does not qualify as fair use when all of the four factors are analyzed (giving due weight especially to the impact of the use on the potential market for the original work), then it is a violation of copyright whether or not the provider of the material is a nonprofit educational institution.
    2. If the amount of material from one work included in an e-reserve system is more than minimal, and the work itself can be readily purchased or licensed for use in an e-reserve system, the inclusion of that material in the e-reserve system is not likely to constitute “fair use” because its inclusion—when considered under the statutory factors—would have a direct, negative effect on the “potential market” for the sale or licensing of the work.
    3. If e-reserve postings are used to substitute for the purchase of books, or for the purchase or licensing of other copyrighted materials that would be used in course work, their use is not likely to constitute “fair use.”
    4. There is no “first-time” exception in fair use; if use of the content does not qualify as fair use, it should not be used as such, even once.

  12. What should I do if some of the material I want to use is credited to a copyright owner that is not the copyright owner of the work itself?
    Oftentimes a work contains a variety of copyrighted items that are used by permission of another copyright owner. In most of these instances, the copyright owner of the entire work has obtained only nonexclusive permission to use these items. You should check the credits and acknowledgments in the work to identify the rightful owners of these copyrighted items and contact them for permission.


  13. Other than under the fair-use doctrine discussed in questions 5 through 7, can I ever copy material without infringing someone’s copyright?
    Works in the public domain may be freely copied; however, collections, translations, and edited versions of works in the public domain may be protected by copyright. Works in the public domain include works that have never been the subject of copyright protection and works whose term of copyright protection has expired.

    In addition, most works created by the U.S. government, including documents prepared by an officer or employee of the federal government as part of that person’s official duties, are in the public domain and thus may be freely copied. The right to copy U.S. government-created works without permission, however, does not extend to documents published by others with the support of U.S. government funds, grants, or contracts; to portions of government documents that contain copyrighted material from other nonprofit sources; or to publishers’ edited, annotated, or compiled versions of such documents.

    Absence of a copyright notice does not necessarily indicate that the work is in the public domain. Similarly, the fact that the author is deceased or the book is out-of-print does not mean that the work is in the public domain. When in doubt about the status of a work, it is best to contact the publisher or author’s representative to determine whether the work is still protected by copyright.


  14. What if I request permission and I don’t get a response?
    If you don’t receive a response to your request for permission, you cannot assume that you have been granted the necessary permission.


  15. What can I do if course material has been ordered for a class but is late in arriving at the bookstore?
    You may be able to obtain permission from the copyright owner to photocopy or digitize a portion of the material until the book arrives. Each publisher has different procedures regarding such matters. You should contact the publisher to determine what procedures the publisher follows.


  16. Can a college store be liable for infringement if it unknowingly copies or sells works where permission has not been obtained?
    Yes. Copyright is a “strict liability” claim for which knowledge is not required. A store can be liable for unknowingly copying or selling works where permission is required. An indemnification agreement obtained from the provider of the materials to be copied or sold by the store will not absolve the store from liability to the copyright owner.


  17. When can copyrighted works be uploaded to or downloaded from the Internet?
    You may upload or download copyrighted works when you are the copyright owner of the works, when you have permission from the copyright owner, or when uploading or downloading could be considered to be a fair use.

    At least three exclusive rights of copyright are involved in uploading and downloading from the Internet. Uploading involves reproducing and displaying the copy and downloading involves making a copy and distributing the copy. Educators and students should consider the Guidelines discussed in this booklet before using copyrighted works on the Internet. For more information, consult the copyright information on the web site or request permission from the webmaster.


  18. What is the TEACH Act?
    The Technology, Education and Copyright Harmonization Act (TEACH Act) was signed into law in November of 2002. The Act revised an existing exemption in the Copyright Act to authorize, for digital distance education purposes, performances and displays of copyrighted works that are analogous to the kinds of performances or displays of such works that take place in a live classroom setting. Although the Act expands the categories of works that can be reproduced for distance education, the Act includes several additional safeguards to prevent the unauthorized use of copyrighted materials, including: 1) requiring the performance or display of the work to be made by or at the direction of an instructor as an integral part of a class session; 2) requiring reception of the performance or display of the work be limited to students officially enrolled in the course for which it is made; 3) requiring transient copies to be retained only as long as reasonably necessary to complete the transmission; and 4) limiting performance of certain works to reasonable and limited portions.

    Below is a checklist to assist you in determining whether or not you are ready to use the TEACH Act:
    • My institution is a nonprofit educational institution or a governmental agency.
    • It has a policy on the use of copyrighted materials.
    • It provides accurate information to faculty, students and staff about copyright.
    • Its systems will not interfere with technological controls within the materials I want to use.
    • The materials I want to use are specifically for students in my class.
    • Only those students will have access to the materials.
    • The materials will be provided at my direction during the relevant lesson.
    • The materials are directly related and of material assistance to my teaching content.
    • My class is part of the regular offerings of my institution.
    • I will include a notice that the materials are protected by copyright.
    • I will use technology that reasonably limits the students’ ability to retain or further distribute the materials.
    • I will make the materials available to the students only for a period of time that is relevant to the context of a class session.
    • I will store the materials on a secure server and transmit them only as permitted by this law.
    • I will not make any copies other than the one I 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.1
      • Reasonable and limited parts of dramatic literary, musical, or audiovisual works.2
      • Displays of other works, such as images, in amounts similar to typical displays in face-to-face teaching.3
    • The materials are not among those the law specifically excludes from its coverage:
      • Materials specifically marketed for classroom use for digital distance education.
      • Copies I 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 I am using an analog original, I checked before digitizing it to be sure:
      • I copied only the amount that I am authorized to transmit.
      • There is no digital copy of the work available except with technological protections that prevent my using it for the class in the way the statute authorizes.
    19. Checklist created by Georgia Harper, University of Texas System. Permission granted to include in pamphlet June 4, 2003.
    1Nondramatic works exclude audiovisual works but include works such as poetry, short story, and nondramatic musical works other than opera, music videos, and musicals.
    2Includes all audiovisual works such as films and videos of all types, and any dramatic musical works excluded above.
    3Includes still images of all kinds.

  19. What is the Digital Millennium Copyright Act (DMCA)?
    The DMCA was enacted in October 1998 primarily to bring U.S. copyright law into conformity with provisions of two World Intellectual Property Organization treaties to which the U.S. is a signatory. This Act facilitates the creation of a secure digital environment for use of copyrighted materials by encouraging the deployment of, and respect for, encryption and other technological protection systems. Accordingly, the DMCA prohibits (with certain limited exceptions): (1) manufacturing, importing, distributing, and providing products or services whose main purpose is to circumvent these systems; (2) taking action to engage in circumvention so as to gain unauthorized access to copyrighted works; and (3) removing, falsifying, or tampering with "copyright management information" (that is conveyed electronically with copyrighted works to identify them and their owners and provide other pertinent data about them). Beyond satisfying treaty obligations, the Act also seeks to clarify the rules for operating digital networks by (1) defining the circumstances that limit the liability of those entities that provide network servicesand (2) establishing procedures to facilitate the identification and correction of infringing activities engaged in by users through such networks.
    Nothing in the DMCA would prevent an alleged infringer of a digital work from claiming that his or her use of the work was fair use under Section 107 of the Copyright Act. The same four factors would be considered in determining whether the use of the material was fair. However, the anti-circumvention provisions of the DMCA, referred to above, may have the practical effect of limiting access to, and therefore limiting use of, digitized works that are protected by encryption or other technological devices that physically prevent unlicensed copying, distribution, display, or performance of any portion of the works.


  20. What special relevance does the DMCA have for the campus community?
    By sanctioning the deployment of technological systems, the DMCA recognizes the rights that copyright owners (including university presses) have to protect their works against unauthorized access and copying that can be especially damaging in the open environment of higher education where the “free” exchange of information and ideas is encouraged.

    However, the DMCA provides certain categories of immunity, or “safe harbors,” for online service providers (“a provider of online services or network access, or the operator of facilities therefore”). If colleges, universities, and college bookstores qualify under the DMCA as “service providers,” they may likely take advantage of the DMCA “safe harbor” limitations when acting as a service provider, regardless of whether such institutions are nonprofit. In order to take advantage of these “safe harbors,” a service provider must register a copyright agent with the U.S. Copyright Office at http://www.loc.gov/copyright/, adopt and implement copyright policies, educate the campus community about the copyright law, implement a “notice and takedown” procedure for addressing receipt of infringement notices, and otherwise meet the requirements for protection.

    The statute creates four categories of infringement for which a service provider may be eligible for protection, including (1) transitory communications, such as transmitting digital information from one point on a network to another at a third party’s request; (2) system caching, which is the practice of retaining copies of third-party material only for a limited time period; (3) information location tools, such as search engines and hyperlinks; and (4) storage of information on systems or networks including the posting of infringing material by a student, professor, or other third party on a college or university web site. (The fourth category is probably the most important in terms of relevance to an institution of higher education.) For more information on the Digital Millennium Copyright Act of 1998, go to www.loc.gov/copyright/legislation/dmca.pdf.


Questions and Answers Concerning Copying Networking Software
  1. What are the laws with regard to copying software?
    Generally, copyright law applies to computer software the same as it does to other copyrighted works. However, the copyright law permits the owner of a particular copy of a program to make a copy of that program for archival purposes so long as the copy is destroyed once the original software is transferred or sold. In limited circumstances, a copy or adaptation may be made as an essential step in using the program in a computer. It is important to note that, in most cases, when buying the software, you are actually acquiring only a license to use the software. Where the software is licensed, the license will govern the permitted uses of the software. Accordingly, you should consult the license for the terms and conditions of the use of the software (such as whether it can be posted on course websites).


  2. What is a software license agreement? How does it relate to copyright?
    A software license agreement allows the purchaser to use the software subject to the terms of the license. The purchaser has not bought the software but only licensed it. The purchaser does not have the right to copy or transfer the software to another party unless provided for in the license agreement.


  3. Does fair use apply to computer programs?
    Yes, but because most copying involves the entire computer program, rather than a portion of it, the unauthorized copying will rarely be considered fair use.


  4. What if a school owns an old version of a software program and wants to purchase additional copies but the program is now unavailable? Can the old software package be copied in such a case?
    The software program cannot be copied without first obtaining the permission of the publisher or copyright owner. Some software publishers permit copies to be made in such cases if additional licenses of the new version are purchased. Other publishers allow copies of the old program to be made if upgrades are purchased. Many publishers offer educational discounts that may make it economical to upgrade all older versions.


  5. Is there any way to manage networks to ensure that software is not copied?
    Yes. A school can purchase “metering” software that tallies the number of license agreements that the school owns and the number of copies made and accessed. Also, software auditing programs are available for purchase. These programs keep a log of existing license agreements and tell users what software is installed on their hard drive or server. These programs help to manage software ownership and reduce the possibility of accidentally pirating software. Information about these programs and other educational tools and resources are available on the Software & Information Industry Association home page (www.siia.net).


  6. What does the expression "pirating software" mean?
    It means making an impermissible copy of software.


  7. Can computer software be resold?
    If a copy of a computer software program is purchased instead of obtained through a license, the purchaser has the right to transfer that one copy of the material. The “First Sale Doctrine” allows the copyright owner to control the initial sale or distribution of the material to the public, but once title to the material changes hands, the copyright owner has no right to control the subsequent resale or transfer of that one copy.

    The First Sale Doctrine applies only to copies of the material that were lawfully made or obtained. Thus, if the computer software was a pirated copy, the purchaser does not have the right to subsequently transfer or sell that copy.

    If the computer software is obtained through a license, as is the case for most software, the First Sale Doctrine is inapplicable and the user should consult the license agreement to determine whether the copy may be resold.


  8. At my school, if we need an additional copy of a software program that the school has already purchased we just make another copy and give it to the person who needs it. We all assume that this must be acceptable since it was the school that purchased the software in the first place.
    Such conduct exposes the school (and possibly the persons involved) to liability for copyright infringement. Consequently, more and more schools concerned about their liability have written policies against such “softlifting”. Employees may face disciplinary action if they make extra copies of the school’s software for use at home or on additional computers at the school. A good rule to remember is that there must be one authorized copy of a software product for every computer upon which it is run.


  9. Can I take a piece of software owned by my school and install it on my personal computer at home if instructed to do so?
    A good rule to follow is one software package per computer, unless the terms of the license agreement allow for multiple use of the program. But some software publishers’ licenses allow for “remote” or “home” use of their software. If you travel or telecommute, you may be permitted to copy your software onto a second machine for use when you are not on your school’s computer. Check the license carefully to see if you are allowed to do this.


  10. What should I do if I become aware of an organization or individual that is not compliant with the copyright law or its software licenses?
    Cases of software piracy or noncompliance with software licenses can be reported on the Internet at www.siia.net/piracy/report.asp or by calling the Anti-Piracy Hotline: (800) 388-7478. Piracy of other types of electronic content including publications (such as books, magazines, and newsletters) and articles may also be reported to SIIA at the above website.


  11. Is there some type of certification available to those responsible for managing a company’s website?
    Yes, this program is called the Certified Software Manager (CSM) seminar, developed by the SIIA, the CSM seminar addresses the specific needs of software managers, technical support specialists, and purchasing agents who must ensure their organizations are software compliant. Through the CSM seminar participants learn how to identify the components of an effective software management plan; understand complex software licensing agreements; become a savvy information technology buyer; negotiate more favorable software license agreements by matching licensed inventory to user needs; untangle the details of the self-audit process and prepare to earn the widely recognized CSM designation. For more information on the CSM program visit www.siia.net/piracy/seminars.asp.


Introduction | Q&A Concerning Copying Print and Digital Works | Obtaining Permission to Copy
Obtaining Electronic Formats From Publishers | Guidelines for Classroom Copying
Details on Kinko's and Michigan Document Services Cases | Credits

 



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