What is Copyright?
Copyright is a form of protection provided by United States law (title 17, U.S.Code) to the authors or creators of literary, dramatic, musical, artistic and other intellectual works. From the moment of the fixation of any original work in any tangible medium, the author of that work owns a "copyright" on it. This copyright gives its owner the exclusive right to, or to authorize others to:
- reproduce (i.e. duplicate, photocopy, etc.) the work
- prepare a derivative work
- distribute copies of the work
- perform the work publicly
- display the work publicly
The athor can sell or assign any of these rights to someone else, such as a publisher.
Why does LITS care about copyright?
The Library, Information and Technology Services group is closely involved in copyright as the keepers of vast stores of intellectual and artistic works. Violating the rights granted to the creators of these works is contrary to the spirit of intellectual growth and freedom because it is by these rights that creativity is, hopefully, encouraged and rewarded. On a more practical note, it is also important to realize that it is clearly illegal. LITS does not want to put the College at risk, nor do we want to subject our staff to personal liability for knowingly violating copyright law.
What is "fair use"?
The doctrine of fair use is a part of the copyright law that mitigates the rights of the copyright owner to allow for the needs of students and scholars. Fair Use, as defined in the law, is only a set of guidelines. It does not give explicit rules or exact measures. To determine if your "use" (copying, performing, etc.) of a copyrighted work is legitimate you must consider all four of the following factors:
- The purpose and character of the use - e.g., nonprofit, educational or commercial.
- The nature of the original copyrighted work, especially whether it is creative, like a novel, or informational, like news reporting. Creative works generally are more protected.
- The amount, substantiality, or portion used in relation to the work as a whole.
- The effect of the use on the potential market value of the work.
Falling clearly on the "right" side of any one of these factors is not enough to ensure that your use is indeed fair. Educational use is not equivalent to fair use, even though it is a point in your favor.
When is a work NOT protected by copyright?
There are several categories of works which are in the public domain, meaning there are no copyright restrictions on their use. If a work was published before 1923, its copyright has now expired. Also, works produced by the United States Government are automatically considered to be in the public domain. There are other odd instances where the use of a work might not be restricted by copyright (e.g. a work published between 1923-1963 whose copyright was not renewed). A librarian can help you determine if a work you are interested in using might be in the public domain.
How many copies of an article or book chapter can I have put on Reserve?
Without restriction, one. Under the Classroom Guidelines worked out as an interpretation to the Copyright Law, multiple copies can only be made if the following conditions are also met:
- Brevity. That is, the work is only one short poem or less than 250 words of a longer poem; one complete article, story or essay of less that 2,500 words or less than 10% of a larger work of prose; or a single chart, graph, cartoon, picture, etc.
- Spontaneity. The inspiration and decision to use the work are so close in time that it would be unreasonable to expect a timely reply to a request for permission to make multiple copies.
- Cumulative Effect. This basically means that the copying of this one work is not a part of a larger amount of multiple copying, especially of works of one author or from one volume.
The largest hurdle here is usually the spontaneity factor as it specifically prohibits the reuse of the same photocopied material from term to term.
Can I make a copy of an entire book?
Generally, no. This might be possible, though, in certain circumstances such as when the book is in the public domain, or if it is determined to be out of print and unavailable to purchase, or to use as an extra in an emergency while waiting for a purchased copy to arrive.
Once I've purchased a book, or subscribed to a journal, why can't I do what I want with it?
Mere ownership of a book, manuscript, painting or any other copy does not give the possessor the copyright. The law provides that transfer of ownership of any material object that embodies a copyright protected work does not of itself convey any rights in the copyright. If copyright were to convey, it would likely mean depriving the copyright owner of legitimate income from the purchasing of multiple copies. Sometimes it is also a question of protecting the intellectual/artistic content of the work from what the copyright owner might consider misuse. It is for these reasons, primarily, that copyright exists and that it does not transfer along with simple ownership of a book, video, etc.
What about making up my own anthologies of photocopied materials for a coursepack?
Under guidelines to the interpretation of copyright law worked out by author and publisher groups, this is not allowed. They state, "Copying shall not be used to create or to replace or substitute for anthologies, compilations or collective works." This has been upheld in separate court cases against New York University, University of Texas, Kinko's and Michigan Document Services, Inc. The Michigan case was considered for review by the U.S. Supreme Court, but they declined to hear the case so the lower court decision stands.
What can I do to ensure that I have the materials I need for my students without conflicting with copyright?
The simplest thing to do is to look toward getting permission to make the needed copies and/or purchasing the necessary number of items. Each item for which a royalty has been paid (in the purchase price) or permission to use has been given is then legitimately cleared of copyright. The library staff can help with this in the following ways:
1. In the case of whole books -
- Purchasing additional copies. When the library staff is aware that a title is in great demand we initiate orders for additional copies. Also, faculty are encouraged to order additional copies for classes with more than ten students.
- Out of print exceptions. If a needed title is out of print and additional copies are unavailable, the Order Dept. can initiate a search of out of print dealers. Significant lead time is needed to implement this option. In an emergency the library will accept a photocopy of the title while attempting to obtain the printed copy.
- Five College cooperation. Five College libraries have agreed to loan books from one library to another for use in the Reserve collection as a temporary measure while waiting for a copy to be obtained. This practice is seen as exceptional and not routine.
2. In the case of periodical articles and chapters from books -
- Copyright Clearance Center (CCC). The Library has a contract with the CCC. This is an organization that streamlines the process of getting permission/paying royalties for photocopies by having pre-arranged permissions with many publications and publishers. We are automatically processing any articles or chapters on incoming reserve lists through this service by checking against CCC's list of "clearable" publications.
Interlibrary Loan-related Questions
Does copyright restrict borrowing through interlibrary loan?
Copyright has little or no effect on borrowing books through interlibrary loan (ILL), since no copying is involved. It sometimes affects the borrowing of video materials, as the right to show them has limitations. We don't borrow videos through the normal ILL process, however, but rather through arrangements with Media Services. The primary area in which copyright restricts ILL is in the procurement of articles as they are actually copies, not originals.
Why do I occasionally have my ILL requests returned with the notice "copyright restrictions prevent processing...?"
This is where copyright and ILL intersect. The guidelines that have been worked out to deal with interlibrary loans place two key restrictions on the requesting of articles:
- No more than five articles from any one periodical title published in the last five years can be requested in one calendar year. This is called the "rule of five" for short. Basically it means that this year we can only request five articles from the 1997-2002 issues of, for example, Social Science and Medicine. Once we have reached that limit we cannot request any more until next year -- or not without paying the royalty fees.
- No more than one article from any one issue of a periodical can be requested at one time. In other words, you can't get photocopies of three or four articles from a special theme issue of, say, Educational Research.
The concept behind these guidelines is that ILL should not be substituting for a subscription or purchase. That is, if you need more than a nominal portion of a journal, you probably should be buying it.
How can the Library help to be sure we can access the materials we need?
The Library monitors ILL requests and considers new subscriptions whenever we do find a periodical title that seems heavily requested. We are also investigating expanding the use of the Copyright Clearance Center and/or royalty-paying Document Delivery Services as mentioned in the answer to the Reserves question above.
Media Services-related questions:
See Video Copyright...
May I purchase or rent a film from the local video store and use it in my class?
Possession of a film or video does not confer the right to show the work. The copyright owner has licensed the performance right and the license contains certain restrictions that should be followed. However, the use of these tapes -- which are generally labeled (i.e. licensed for) "Home Use Only" -- is considered a fair use in a face-to-face teaching situation. A face-to-face teaching situation implies a classroom setting with only the instructor and students present. It does not extend to showing tapes for entertainment or to students or others not in the class. The "classroom" can be an auditorium or other suitable space, as long as the activity is still a part of the established curriculum.
May I make a copy of a rental video so that I can have it to use later?
No. This would clearly infringe on both the copyright and the license granted to the rental store.
May I make a copy of a college-owned video to put on Reserve?
Only after permission to copy has been obtained from the copyright holder. In some cases it may be easier simply to purchase a second copy.
How can I legitimately show a video to a group or club outside of the classroom?
Many film and video libraries and distributors offer the rental or purchase of videos with "public performance rights" for a higher fee. The public performance right is what is needed to show a video in a non-teaching situation. When feasible, videos in the Media Services at Mount Holyoke are obtained with the necessary public performance right. Check with Media Services for further information in specific cases.
What about a student showing a rental video in the dormitory livingroom?
Experts disagree on this. It is clearly not a classroom situation, but some say it is comparable to home or private use and therefore legitimate. Others say that the somewhat public nature of a dorm livingroom would make this a public performance. If the group of people viewing the video is restricted to acquaintances of the student renter, it is probably okay. If the showing is widely publicized and shown with an "anyone welcome" attitude, it is probably not okay.
What is LITS doing to expand our ability to make use of video and film materials?
Media Services, the Librarians and/or the Instructional Technology Consultants help with obtaining public performance rights, getting permission to copy and working with vendors or distributors to smooth any problems with your use of their tapes for preview or classroom. We try to purchase or rent videos with the public performance rights when we can. Also, we are willing to purchase extra copies of a video when it seems appropriate
Can I use clips from videos in my own video or web production?
As with printed materials, the general idea is that "Fair Use" will allow you to copy/reproduce limited amounts of a video for educational purposes. The general rule of thumb for this is no more than 3 minutes or 10% of the whole, whichever is less.
Web and Multimedia Related Questions
Are World Wide Web pages copyrighted?
Yes, both the individual elements (original graphics, text, etc.) of a web page and the overall design of a web page are protected by copyright from the moment they are created.
May I copy a portion of someone's web page to use on my own page?
No, not without permission. Although experts disagree about what exactly constitutes copying in an electronic environment, it is quite clear that pasting a portion of someone's page onto your page would qualify. Also, taking a portion of someone else's work and putting it into a new context (your page) probably constitutes creating a "derivative work". This is another violation of copyright.
Can I scan in a photo or graphic I find in a magazine or download an image from the web and put it on my web page?
Again, this would be a clear violation of copyright. If you can find a graphic/photo that is old enough for the copyright to have expired (generally created before 1923) or is otherwise in the public domain, then this is all right. Otherwise you should assume the work is copyrighted and seek permission if you want to use it on your web page. The same applies to images you may find on the web. LITS has some licensed image resources available that may offer you some alternatives in limited circumstances. Check with the Reference Librarians or Instructional Technology Consultants for suggestions.
Can I put in a link to anything I want?
This is, legally, an unresolved issue. It would seem that creating a pointer to someone else's page (i.e. a link) would not be the same as copying it per se. However, this alone is not entirely clear. In addition there is the potential problem for violating the "derivative work" aspect of copyright. On the other hand, this is an extremely common practice and really the heart of what the web is all about. So while it may turn out to be in a grey legal area, it is unlikely to cause problems. Current "netiquette" suggests asking permission of the creator of the site you want to link to before you do so. This may not be necessary, but it would be the safer course.
But, isn't something posted to the Internet already in the public domain? What about "implied license"?
There is much controversy over this issue but copyright law certainly does not recognize the principle of implied license. It MAY be true that someone who puts information up on the Internet understands and expects that people will use it and even copy it; but that doesn't mean you would be protected by law in doing so. Consider the parallel of a movie being broadcast on television. Just because it's broadcast doesn't mean you have a legal right to copy it. Making one copy for your personal use at home might be justified as a fair use, but rebroadcasting or otherwise displaying/performing it publicly, as on the Internet, wouldn't be. Works can only be put in the public domain by an explicit grant of the author (or copyright expiration).
May I repost someone else's message to a different listserv or newsgroup from where I read it?
Probably not. Leaving the thorny "copying" issues aside, this would likely constitute unauthorized distribution. However, reposting someone's message back to the same group of people (i.e. in responding to a newsgroup, listserv or regular email message) is common practice and unlikely to cause any copyright problems since the same people already received the original. It is important to remember that email messages ARE copyrighted and have the same protection as any written work. Fair use applies, but they are not in the public domain. Common practice, "netiquette", may insulate you from the likelihood of a lawsuit, but it is not a guarantee -- or a legal defense.