The Copyright Act of the United States (Title 17, United States Code) grants to copyright owners the right to control an intellectual or artistic creation, to prohibit others from using the work in specific ways without permission, and to profit from the sale and performance of the work. Under the current statute, copyright protection extends to cover the written word, sound recordings, visual images (such as photographs, graphics and illustrations), audiovisual works (such as motion pictures and other movies or clips), as well as musical, dramatic, and choreographic works. While the internet and digital technologies make it easier to find, obtain, and share information, that information is still protected by copyright law. Copyright principles remain the same regardless of format.
Fair use exceptions are often applied for use of works for teaching and research purposes. Before deciding if the fair use exception can be applied it must first be determined if the material in question is subject to copyright protection, if there is a license or contract governing its use, and if there are any special exceptions to copyright law allowing its use. If the material is found to be protected by copyright law and ungoverned by license or contract, the four factor analysis can be applied. The four factor analysis will result in either a fair use exception or the need to request permission from the copyright owner.
A. Rights of Copyright Owners
Section 106 of the Copyright Act grants copyright owners five exclusive rights to ensure the opportunity to exploit the work for profit. These rights are:
The Copyright Act is violated whenever a third party exercises any of the above rights without authorization of the copyright owner or without having express permission to do so under the law. Be aware that not all educational uses are fair uses. The limitation on the copyright owner's rights which provides the widest public exploitation of copyrighted work is known as the “fair use exception”. This is described in Section III.C.: Fair Use.
B. Copyright Notice
The copyright notice indicates that a work is copyrighted, identifies the copyright owner, and indicates the year of first publication. For print, film, and images, it will appear as the copyright symbol ("copyright" or "©") and the name of the copyright owner (which should be attached directly on, under, or around a digital work). For sound recordings copyright is noted with a (P) followed by the year of publication and the name of the copyright owner.
Lack of a copyright notice does not necessarily mean that the material is free to use. Since 1989, copyright law no longer requires the use of a copyright notice to identify that a work is copyrighted. Unless published in the United States before 1923, the material to be used is likely to be copyrighted and protected by copyright law.
When reproducing material for use in teaching and research, the copyright notice (copyright symbol, date of first publication, and name of copyright owner) and citation of material used should be visible to anyone who will be using the excerpted material. This applies even if the material is only being used once for a class presentation or project to provide record of the copyright information and of when and where you found the material.
C. Fair Use
Fair use is a legal principle that provides certain limitations on the exclusive right of copyright owners. The purpose of the University policy is to provide guidance on the application of the fair use principle to faculty, staff, and students, who wish to copy copyrighted works under fair use rather than by seeking authorization from the copyright owners for non-commercial educational purposes. Not all educational uses are fair uses.
Section 107 of the Copyright Act sets four factors as guidelines for determining fair use of material. Declaring fair use is complex and conducting a four-factor fair use analysis for each item to be used is critical to any good faith fair use assertion.
The four fair use factors which should be assessed in each instance to determine whether fair use can be claimed are:
All four factors must be weighed equally and a finding of fair use depends on an application of all four factors.
Factor 1: The purpose and character of the use
Uses for non-profit, educational purposes, or personal use are more likely to be a fair use. On the other hand, uses which are predominantly commercial are more likely to require permission and/or the payment of royalties. In addition, the fair use statute states the use of a work for the purposes of criticism, comment, news reporting, teaching, scholarship, or research, are appropriate for fair use Courts also favor transformative uses of a work, not merely reproductions. A transformative use occurs when an original work is transformed or altered into something new that adds value, new meaning, or repurposes a work for new audience.
Factor 2: The nature of the work to be used
Materials that are primarily factual such as scientific information, mathematical equations, historical data or works of nonfiction tip the balance in favor of fair use. When the work is creative or unpublished, the balance is tipped in favor of seeking permission.
Factor 3: The amount or significance of the portion of the work used
Generally, if you use a small amount of the whole work, the balance is more likely tipped in favor of fair use. If you use a larger amount, the balance is tipped in favor of seeking permission. Using even small amounts that are considered the “heart of the work” also tips the balance toward seeking permission. Amounts are not easy to determine and depend on the medium being reproduced. The law does not set exact amounts. The University policy provides guidelines for various mediums that align with best practices and results of court cases to assist in the fair use determination.
Factor 4: The effect of the use on the potential market for or value of the work
This factor can be complicated. If the use tips the balance in favor of fair use after considering the first three factors, the fourth factor may not affect the results even if there is a market. On the other hand, the fourth factor may tip the balance, if the reproduction becomes the substitute for the original. If the work is reasonably available for purchase or licensing, providing copies under the guise of fair use could have an adverse effect on the market and weighs against a finding of fair use.
Guidelines are provided in this policy to address specifics regarding various formats of material used in teaching and research. See Sections IV-X for more information.
A fair use checklist can be found on the CNU Copyright Resources: Fair Use page.
D. How Licenses and Contracts Affect Copyright Use
A license is a copyright holder's (author, publisher, etc.) explicit authorization for someone else to copy, make derivative works of, or distribute the work, that may require payment or impose restrictions on use. A license agreement defines in detail how, where, and when the copyrighted work may be used. Because the right to use a copyright is usually limited and temporary, it is known as a license. Licenses may be formal agreements entered with publishers or organizations, may be click-through agreements of electronic products or services, or may be specified in the Terms of Service of digital products that must be sought out. The terms “license” and “contract” are often used interchangeably in these circumstances.
The availability of a license for specific uses of material weighs heavily in the fair use decision. If a license exists or is available for purchase to allow a particular use, that is the path one should choose to utilize material. If a license or contract has been signed or accepted that specifically defines the use of content or a service, fair use may not be applicable for that or any other intended use. In other words, the terms of the license may trump any fair use defense. You can typically only apply the fair use exception if a license agreement or terms of service specifically allow for its use by including a statement such as, “Except as expressly permitted under copyright law, you may not…”. A decision to apply a fair use exception for use of material that is prohibited by a license agreement is considered a violation of the license and/or contract.