As information becomes more accessible through the Internet and other electronic means, knowledge about copyright becomes an important part of doing research, creating presentations and teaching classes.
This Copyright manual was created to assist the faculty, staff and students of Metropolitan Community College with questions about copyright, a complex, continually evolving subject.
Any information provided in this manual is just that - information. It is not legal advice and should not be considered as such.
History of Copyright
Copyright provides creators of literary, artistic or musical works the exclusive right to reproduce, publish and sell those works. This protection of creativity has been recognized for centuries. England's Statute of Anne, passed in 1710, not only recognized that authors should be the primary beneficiaries of copyright law, but also recognized that a such protection could be of limited duration and that works would eventually pass into public domain. The designated period was set at twenty-eight years.
The Constitution of the United States authorized Congress 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." Congress passed the first copyright law in 1790. A revision passed in 1909 extended protection to "all works of authorship", including music, and lengthened the renewal term from 14 to 28 years for a total of 56 years of protection.
The 1976 revision extended copyright protection to "original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated...." Important features of the 1976 law were the limitations of "fair use", the extension of copyright to unpublished works, the allowance of libraries to photocopy works without permission for scholarship, preservation and interlibrary loan. In addition, the 1976 Act set the term of protection to life of the author plus 50 years.
Two Acts passed by Congress in October 1998 affect copyright. The first is known as the "Digital Millennium Copyright Act" and addresses copyright in the digitally networked environment. The second, the "Copyright Term Extension Act," changes the length of protection offered to a copyrighted work.
Before considering the use of materials in the design of course content or other works, it is useful to remember that there are some things that anyone can freely use. These include:
- Works that lack originality:
- Logical, comprehensive compilations (like the phone book)
- Unoriginal reprints of works in the public domain
- An illustration of the thorax or any body part
- Works in the public domain:
- Note that the Copyright Term Extension Act has changed the terms of copyright protection. Generally, works published before 1923 are in the public domain.
- Works published by the U.S. Government:
- Your tax dollars at work! There are, however, government documents that are created by private contractors and may have been copyrighted by them, but generally government documents may be freely copied.
- Facts, including Uniform Resource Locators (URLs):
- Ideas, plans, methods, systems or devices, as distinguished from the particular manner in which they are expressed or described in a writing.
When Is A Work Copyrighted?
An "original work of authorship" is protected by copyright from the time it is created in a fixed form. Works of authorship include:
- literary works;
- musical works, including accompanying words;
- dramatic works, including accompanying music;
- pantomimes and choreographic works (provided that they have been notated or recorded);
- pictorial, graphic, and sculptural works;
- motion pictures and other audiovisual works;
- sound recordings;
- architectural works.
A copyright notice (©, name, date) is no longer required on a work.
Rights of Copyright Owners
The 1976 Copyright Act, section 106, gives the owner of copyright "exclusive right to do and to authorize any of the following: To reproduce the copyrighted work in copies or phonorecords; To prepare derivative works based upon the copyrighted work; To distribute copies or phonorecords of the copyrighted 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 copyrighted 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."
Although copyright is secured when a work is created in a fixed form, the Copyright Office points out that "there are, however, certain definite advantages to registration." Registration:
- Establishes a public record of the copyright claim;
- Is necessary before an infringement suite may be filed in court;
- Establishes prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate if made before or within 5 years of publication;
- Makes available statutory damages and attorney's fees to the copyright owner in court actions if registration is made within 3 months after publication of the work or prior to an infringement of the work. Otherwise, only an award of actual damages and profits is available to the copyright owner.
- Allows the owner of the copyright to record the registration with the U.S.
- Customs Service for protection against the importation of infringing copies.
- May be made at any time within the life of the copyright.
Registration is made with the Copyright Office in the Library of Congress and requires a properly completed application form; a nonrefundable filing fee; and a nonreturnable deposit of the work being registered. For additional information, check the Copyright Office website at: http://www.copyright.gov.
Works Made For Hire
The copyright statute defines a "work made for hire" as any work that is:
"prepared by an employee with the scope of his or her employment;
or a work specially ordered or commissioned for use as a contribution to a
collective work, as a part of a motion picture or other audiovisual work,
as a translation, as a supplementary work, as a compilation, as an instructional, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire...."
Metropolitan Community College Board Policy No. 60605, Preparation of Instructional and Other Material states: The College shall have all copyright rights, including the right to assign same to a publisher or others, of instructional or other materials prepared by a faculty member in whole or in part within the scope of his employment. "Scope of employment" is defined as: during the time of employment by, at the expense of, or with personnel, equipment, supplies or facilities of the College, or prepared pursuant to special order or commission by the College. Unless otherwise specifically agreed to in writing by the College in advance, all such copyright rights, publication rights and royalty rights shall remain the exclusive property of the College.
The 1976 Copyright Act defines publication as "the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies of phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication."
Just as the 1976 Copyright Act reserved certain rights to the holder of a copyrighted work, it placed limits on those exclusive rights that allow others to use the work without specific consent of the copyright holder. The doctrine of fair use is Section 107 of Title 17 of the U.S. Code. It reads:
107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, 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 --
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- 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.
Some things to remember about fair use are:
- None of the four points are more important than the others; indeed, the weight put on any one of them may vary depending on the circumstance;
- All of the four points must be considered when considering whether a proposed use is fair use;
- If the copyright holder has a written agreement or contract with a school or library about the use of copyrighted material, that agreement takes precedence over fair use.
Educational Use Guidelines
Guidelines to clarify the minimum standards of use of copyrighted materials in nonprofit educational institutions have been developed and were endorsed by Congress. They are, however, just guidelines. They are not law, therefore, their use may be challenged by the copyright holder. Briefly these guidelines are as follows:
1. PHOTOCOPYING OF BOOKS AND ARTICLES
Guidelines were created and agreed on by the Association of American Publishers and the Author's League of America and included in the House Judiciary Committee report (H. Rept 94-1476).
Single copies of a chapter from a book, an article from a magazine or newspaper, a short story, essay or poem, a chart, graph, diagram, cartoon or picture may be copied by or for a teacher at his or her request for research or teaching preparation.
Multiple copies, not to exceed one copy per student, may be made by or for the teacher for classroom use or discussion, if such copies meet the requirements for brevity, spontaneity and cumulative effect as defined, and if each copy includes a notice of copyright and a citation.
Brevity is defined as a complete poem, if less than 250 words, or an excerpt from a longer poem of not more than 250 words; a complete article, story or essay of less than 2,500 words, or an excerpt of not more than 1,000 words or 10 percent of the work (at least 500 words). One chart, graph, diagram, drawing, cartoon or picture per book or magazine issue may be copied. Only two pages containing not more than 10 percent of the text of a "special work" (materials with language and illustrations combined, such as an illustrated children's book) may be copied.
Spontaneity is defined as action at the instance and inspiration of the individual teacher and under conditions in which both the decision to use the work and the moment of its use are so close in time that it would be unreasonable to expect a timely reply to a request for permission from the copyright holder.
Cumulative effect defines or limits the use of copies to one course in the school where the copies are made; one short poem, article, essay or two excerpts per author; not more than three excerpts from the same collective work or periodical in one class term; and not more than nine instances of multiple copying per term.
Copying shall not be done to replace anthologies or collected works, workbooks or other items of a "consumable" nature, or to substitute for the purchase of books. Copying cannot be directed by a higher authority or repeated with respect to the same item by the same teacher from term to term.
2. OFF-AIR RECORDING OF TV PROGRAMS
Guidelines were established in 1981 for off-air recording of broadcast television programming for educational purposes by nonprofit educational institutions. Note that these guidelines apply ONLY to BROADCAST programming. The program must have originated from a broadcast television station. Programs on non-broadcast cable channels, such as MTV, HBO, ESPN, Discovery Channel, etc., CANNOT BE COPIED without specific permission from the copyright owner.
The copy can be made as the broadcast is being transmitted and kept for 45 days after recording; it must then be erased. The copy can be used once by the individual teacher, and it can be repeated only once during the first 10 school days within the 45 day period.
The copy can be made only at the request of an individual teacher. Only one recording request per teacher per program is allowed.
A limited number of copies may be reproduced subject to all the provisions governing the original recording.
After the first 10 school days of the 45 day period have expired, recordings may be used only for evaluation purposes, not for student exhibition or in-class use.
The copy does not need to include the entire program, but the content of recorded programs may not be altered nor can recorded programs be merged to make anthologies.
All copies must include the copyright notice as it was recorded on the original work. Typically, this notice is included in the credits at the beginning or end of the program.
3. FAIR USE GUIDELINES FOR EDUCATIONAL MULTIMEDIA
This nonlegislative report was adopted by the Subcommittee on Courts and Intellectual Property, Committee on the Judiciary, U. S. House of Representatives, on September 27, 1996. The complete text of these Guidelines can be found at
These Guidelines "apply to the use, without permission, of portions of lawfully acquired copyrighted works in educational multimedia projects which are created by educators or students..." Such projects "incorporate students' or educators' original material, such as course notes or commentary, together with various copyrighted media formats including but not limited to, motion media, music, text material, graphics, illustrations, photographs and digital software...."
Students may incorporate portions of lawfully acquired copyrighted works when producing their own educational multimedia projects for a specific course. Students may perform and display their own projects in the course for which they were created and may use them in their own portfolios as examples of their work for personal use such as job and school interviews.
Educators may incorporate portions of lawfully acquired copyrighted works when producing their own educational multimedia projects for their own teaching tools in support of curriculum-based instructional activities at educational institutions.
They may perform and display their own educational multimedia projects for students during face to face instruction, for directed student self-study, in remote instruction to students enrolled in curriculum-based courses and located at remote sites, provided over the College's secure electronic network in real-time, or for after class review or directed self-study, provided there are technological limitations on access to the network and the project and provided that the technology prevents the making of copies of copyrighted material. If the network used to access the project cannot prevent the duplication of copyrighted material, the material may use the material over a secure network for 15 days after its initial use or assignment. After the 15 days, one copy may be placed on reserve in the library or academic resource center for on-site use by students.
Educators may perform or display their own projects in presentations to their peers at workshops and conferences. Projects may be retained for personal uses such as job interviews or performance reviews.
Multimedia projects created for educational purposes may be used for up to two years after the first instructional use. Use beyond that time, even for educational use, requires permission for each copyrighted portion included in the production.
The Guidelines place these limitations on the amount of a copyrighted work that can be reasonably used in educational projects:
- Up to 10% or 3 minutes, whichever is less, of the total copyrighted work.
- Up to 10% or 1000 words, whichever is less, of text material. An entire poem of less than 250 words may be used, but no more than three poems by one poet, or five poems by different poets from any anthology. For poems of a greater length, 250 may be used but no more than three excerpts by a poet, or five poems by different poets from any anthology may be used.
- Up to 10%, but no more than 30 seconds, of the music and lyrics from an individual musical work.
- A photograph or illustration may be used in its entirety but no more than 5 images by an artist or photographer may be reproduced or incorporated. When using photgraphs and illustrations from a published collective work, not more than 10% or 15 images, whichever is less, may be used.
- Up to 10% or 2500 fields or cell entries, whichever is less, from a copyrighted database or data table may be incorporated.
No more than two use copies may be made of an educational multimedia project. One of these copies may be placed on reserve. An additional copy may be made for preservation purposes to replace a use copy that has been lost, stolen or damaged. If more than one person helped to create the project, each principal creator may retain one copy for their portfolio.
4. USING FILMS AND VIDEOTAPES
Videocassettes from a video rental outlet may be used in a classroom as long as these guidelines are followed:
- The tape is part of the instructional program;
- the tape is shown by the instructor, students or a guest lecturer;
- the tape is shown in a classroom or other school location devoted to instruction;
- the tape is shown in a face-to-face setting where students and faculty are in the same building;
- the tape is shown to students;
- the tape used is a legally reproduced copy with the copyright notice included.
Even in a classroom setting, films or videos may not be used for entertainment or recreation.
5. GUIDELINES FOR USING COPYRIGHTED MATERIALS ON THE DISTANCE EDUCATION SYSTEM
Classes taught on the Distance Education system require instructors to do additional advance preparation. As they develop the course syllabus, instructors need to provide library staff with a list of videos to be shown. Library staff will confirm with the distributor that the tapes may be used without extra licensing and will purchase additional licensing if it is available at a reasonable cost. Library staff will notify the faculty member to confirm that the material may or may not be used.
When Metro library staff purchase a film or video intended to become part of the library's collection, they request permission from the vendor to show the film/video in the classroom and over the distant education system, including classes offered via the cable system. Usually these rights are provided by the company. If the company does NOT provide these rights, the item is labeled. Users are expected to comply with the information on the tapes.
6. COPYING OF OTHER MATERIALS
Audio tapes, records, computer programs and other materials are also covered by various copyright restrictions. Although in some cases Metro has obtained or can obtain permission to copy certain materials, the "rule of thumb" for such copying is to consider whether making a copy of an item might directly affect the potential market for the work.
Media format changes usually require special permission from the producer or distributor of the material. To transfer a film, videotape or filmstrip from one media format to one that is different from the format it was originally purchased, copyright permission must be requested.
7. MATERIALS ON THE INTERNET
Copyright law applies to materials found on the Internet as well as materials in more traditional formats. Simply because the material is on the Internet does not mean that the copyright owner gives permission to use it. It is possible that the material has been placed on the Internet without the copyright owner's knowledge or permission. To use material from the Internet, consider how you will use the material and whether the four fair use factors apply. If not, or if you are uncertain, request the copyright owner's permission.
You need to consider copyright implications when you post material to the Internet. Copyright law applies to material in any format, and owning a copy of that material does not make you the copyright owner. You can post any materials you have created to a web site, but you will need to obtain permission from the copyright owner before you can place other materials on your web site.
Works in the public domain can be used without permission.
E-mail messages are copyrighted because they are in a fixed form. Traditional web use and custom has been to allow the forwarding of e-mail messages to a limited number of other web users, but permission should be obtained before posting another's message to a Listserve or other Usenet group.
8. USE OF STUDENT WORK
The ownership of student works submitted in fulfillment of classroom requirements shall remain with the student(s): By enrolling in classes offered by Metropolitan Community College, the student gives the College license to mark on, modify, and retain the work as may be required by the process of instruction, as described in the course syllabus. The institution shall not have the right to use the work in any other manner without the written consent of the student(s).
How to Request Permission
Copyright issues are complex. Sometimes the wisest course of action is to seek the permission of copyright holders to use their material. After considering the four factors of fair use, you may decide that your use may exceed fair use. If there is any question of infringement, obtain permission: most producers and publishers are very cooperative about providing permission to copy materials. In some cases, the publisher may require a fee or royalties. Use our online permission form and be sure to retain your records. Also see the "Obtaining Permission' section of copyright Resources on the Internet for additional resources.
NOTE: If you are unsure whether your intended use is fair use, please ask your campus library staff or Instructional Design Services for assistance.