"The Congress shall have Power To... Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their Respective Writings and Discoveries."
This is a guide to applying the concept of fair use when seeking to use third-party copyrighted materials in online education.
In cases where fair use does not apply, alternatives are suggested, for example using materials that are open access, that have open licenses, or that are in the public domain. It is also possible to purchase a license to use a work.
What is copyright?
The goal of copyright law, as grounded in the U.S. Constitution, is to promote the progress of science and the useful arts.
Copyright is a form of protection granted to authors that provides them, for a limited period of time, with certain exclusive rights. These rights are intended to encourage authors to create, thereby providing society with valuable works.
The limitation on the length of copyright (as well as other limitations such as fair use) balances the benefits of incentives for authors with the benefits of allowing the public to make use of copyrighted materials in a free and democratic society.
What rights does copyright protect?
Copyright is a bundle of exclusive rights. A copyright owner has the exclusive right to do and to authorize others to do any of the following:
To reproduce the work in copies or phonorecords
To prepare derivative works based upon the work
To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending
To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works
To display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work
To perform the work publicly (in the case of sound recordings) by means of a digital audio transmission
What types of works can be copyrighted?
Copyright protection attaches automatically to original works of authorship fixed in a tangible medium of expression. Originality requires that the work was created independently (i.e. not copied from another) and that it embodies a minimum amount of creativity. To be fixed in a tangible medium of expression means that the work can be perceived either directly or by a machine or device such as a computer or projector.
Copyrightable works include the following categories:
Musical works, including any accompanying words
Dramatic works, including any accompanying music
Pantomimes and choreographic works
Pictorial, graphic, and sculptural works
Motion pictures and other audiovisual works
These categories should be viewed broadly. For example, "literary works" includes novels, poetry, compilations, and computer programs. "Pictorial, graphic, and sculptural works" includes images, photographs, paintings, maps, charts, and architectural plans.
What cannot be copyrighted?
Certain types of works are not eligible for copyright protection. These include:
Ideas, theories, concepts
Procedures, methods, processes
Titles, names, short phrases and slogans, familiar symbols or designs, variations of type styles, lists of ingredients
Works consisting entirely of information that is common property and containing no original authorship (e.g. standard calendars, height and weight charts, tables taken from public documents)
Works of the U.S. government
These works are in the public domain, meaning they are freely available for use without copyright restrictions.
Limitations on copyright
In order to balance the needs of users with those of rightsholders and to preserve copyright's purpose to promote science and the useful arts, copyright law contains a number of exceptions.
Section 107: Fair use — Permits use of copyrighted material without acquiring permission. Examples of fair use include criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, and research.
Section 108: Library copying — Allows libraries to make copies of works for preservation, research and study, and interlibrary loan.
Section 109(a): First sale doctrine — Limitation on the copyright holder's distribution right that states that once a copy of a work has been lawfully sold, the owner of the copy is free to resell it, rent it, loan it, or give it away. Allows for library lending, video rentals, used book and CD sales, and the ability to give copyrighted materials as gifts.
Section 109(c): Exception for public displays — Allows the owner of a lawfully made copy of a work to display it to the public at the place where the work is located. Allows for display of art in museums and bookstore and library displays, for example.
Section 110(1): Displays and performances in face-to-face teaching — Allows for the performance and display of copyrighted materials in the course of face-to-face teaching at nonprofit educational institutions.
Section 110(2): Displays and performances in distance education (TEACH Act) — Ability to display or perform certain types of copyrighted works in the course of distance education. Use of 110(2) is subect to many conditions, including establishing institutional policies and implementing technological controls.
Section 117: Computer Software — Owners of computer software can make backup copies and modify the software so that it works on a specific computer platform.
Section 120: Architectural Works — Anyone may take and use photographs of publicly visible buildings without infringing the copyright in the architectural design.
Section 121: Special formats for the blind or other people with disabilities — Organizations that serve the disabled can reproduce or distribute copies of previously published, nondramatic literary works in specialized formats for use by the blind or other persons with disabilities.
Many of the exceptions in copyright law apply only to certain types of works under very specific conditions. The exceptions can be difficult to understand and apply without the advice of a lawyer.
In contrast, fair use is easier to understand, applies to all types of works, and is flexible. It is for these reasons that this guide recommends relying on fair use when deciding when and how to use (or not to use) third-party copyrighted material in online education.
This guide was created by Andrée Rathemacher, Julia Lovett, and Angel Ferria as part of their Certification in Intellectual Property Management and Leadership through the Center for Intellectual Property, University of Maryland University College.
This work is used with permission and is licensed under a Creative Commons Attribution 4.0 International License.