Rules Of Copyright
Please
read this before you request copies or begin photocopying!
Even
though a number of our documents may not be clearly copyrighted,
they may still be protected by the copyright laws. Below
is a general summary of the rules that govern photocopying
of copyrighted material.
Subject
to some general limitations discussed later in this article,
the following types of uses are usually deemed fair uses:
- Criticism and comment:
For example, quoting or excerpting a work in a review
or criticism for purposes of illustration or comment.
- News reporting:
For example, summarizing an address or article, with
brief quotations, in a news report.
- Research and scholarship:
For example, quoting a short passage in a scholarly,
scientific or technical work for illustration or clarification
of the author's observations.
- Nonprofit educational uses:
For example, photocopying of limited portions
of written works by teachers for classroom use.
- Parody: A work
that ridicules another, usually well-known, work by
imitating it in a comic way.
In
most other situations, copying is not legally a fair use.
Without an author's permission, such a use violates the
author's copyright.
Violations
often occur when the use is motivated primarily by a desire
for commercial gain. The fact that a work is published
primarily for private commercial gain weighs against a
finding of fair use. For example, using the Bob Dylan
line "You don't need a weatherman to know which way the
wind blows" in a poem published in a small literary journal
would probably be a fair use; using the same line in an
advertisement for raincoats probably would not be.
A
commercial motive doesn't always disqualify someone from
claiming a fair use. A use that benefits the public can
qualify as a fair use, even if it makes money for the
user.
Copying
From Unpublished Materials
When
it comes to fair use, unpublished works are inherently
different from published works. Publishing an author's
unpublished work before he or she has authorized it infringes
upon the author's right to decide when and whether the
work will be made public. Some courts have held that fair
use never applies to unpublished
As
you might expect, publishers, authors' groups, biographers
and historians were highly critical of this view. They
got Congress to amend the fair use provision in the Copyright
Act to make clear that the fact that a work is unpublished
weighs against fair use, but is not determinative in and
of itself. If the other fair use factors favor fair use,
it can be permissible to use part of an unpublished work
without permission. This is particularly likely where
the use benefits the public by furthering the fundamental
purpose of the copyright laws--the advancement of human
knowledge. For example, a court held that it was a fair
use for a biographer to use a modest amount of material
from unpublished letters and journals by the author Richard
Wright. (Wright v. Warner Books, Inc., 953 F.2d 731 (2d
Cir. 1991).)
When
Is a Use a 'Fair Use'?
There
are five basic rules to keep in mind when deciding whether
or not a particular use of an author's work is a fair
use:
Rule
1: Are You Just Copying or Creating Something New?
The purpose and character of your intended use of
the material involved is the single most important factor
in determining whether a use is a fair use. The question
to ask here is whether you are merely copying someone
else's work verbatim or instead using it to help create
something new. The Supreme Court calls such a new work
"transformative." The more transformative your work, the
more likely your use is a fair use.
Rule
2: Don't Compete With the Source You're Copying From
Without consent, you ordinarily cannot use another
person's protected expression in a way that impairs (or
even potentially impairs) the market for his or her work.
Thus, if you want to use an author's protected expression
in a work of your own that is similar to the prior work
and aimed at the same market, your intended use isn't
likely a fair use.
Rule
3: Giving the Author Credit Doesn't Let You Off the Hook
Some people mistakenly believe that they can use any
material as long as they properly give the author credit.
Not true. Giving credit and fair use are completely separate
concepts. Either you have the right to use another author's
material under the fair use rule or you don't. The fact
that you attribute the material to the other author doesn't
change that.
Rule
4: The More You Take, the Less Fair Your Use Is Likely
to Be
The more material you take, the less likely it is
that your use will be a fair use. However, to preserve
the free flow of information, authors have more leeway
in using material from factual works (scholarly, technical,
scientific works, etc.) than to works of fancy such as
novels, poems and plays. This is true especially where
it's necessary to use extensive quotations to ensure the
accuracy of the information conveyed.
As
a general rule, never quote more than a few successive
paragraphs from a book or article, or take more than one
chart or diagram. It is never proper to include an illustration
or other artwork in a book or newsletter without the artist's
permission. Don't quote more than one or two lines from
a poem. Many publishers require their authors to obtain
permission from an author to quote more then a specified
number of words, ranging from about 100 to 1000 words.
Contrary
to what many people believe, there is no absolute word
limit on fair use. For example, it is not always okay
to take one paragraph or less than 200 words. Copying
12 words from a 14-word haiku poem wouldn't be fair use.
Nor would copying 200 words from a work of 300 words likely
qualify as a fair use. However, copying 2000 words from
a work of 500,000 words might be fair. It all depends
on the circumstances.
Rule
5: The Quality of the Material Used Is as Important as
the Quantity
The more important the material is to the original
work, the less likely your use of it will be considered
a fair use.
Determining
whether your intended use of another author's protected
work constitutes a fair use is usually not difficult.
It's really just a matter of common sense. There is no
more commonsensical definition of fair use than the golden
rule: Take from someone else only what you wouldn't mind
someone taking from you.
Reproduction
of copyrighted material, without prior permission of the
copyright owner, particularly in an educational setting,
is an issue of concern for the academic community. Unfortunately,
the impropriety of much unauthorized copying is all too
often overlooked by users in an educational setting.
Although
copying all or part of a work without obtaining permission
may appear to be an easy and convenient solution to an
immediate problem, such unauthorized copying can frequently
violate the rights of the author or publisher of the copyrighted
work, and be directly contrary to the academic mission
to teach respect for ideas and for the intellectual property
that expresses those ideas.
Without
understanding the copyright law, including elements such
as the doctrine of "Fair Use" and its application and
limitations in the educational setting, faculty members,
copy centers, college stores, universities and colleges
themselves, and others will be at risk for engaging in
illegal photocopying.
These
pages are intended to aid you in conforming to the requirements
of U.S. copyright law by providing an easy-to-understand
guide. This guide, in question and answer format, presents
a current overview of relevant sections of the amended
Copyright Act of 1976, including:
The
requirements for protection of copyrighted works from
unrestricted copying;
- The doctrine of "Fair Use" and
its limitations;
- The reasons for college stores
to be indemnified against liability for copyright infringement,
and the effects of such indemnities;
- And procedures on how to obtain
permission to reproduce copyrighted material.
It
is the goal of these pages, cosponsored by the National
Association of College Stores and the Association of American
Publishers, and endorsed by the Association of American
Publishers, and endorsed by the Association of American
University Presses, to clarify the issues and present
information and procedures that will result in greater
understanding of the rules governing copyrighted works
and facilitate the processing of photocopying requests.
1.
What is a copyright?
The copyright law grants owners of copyright (authors
and 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; to prepare new
(derivative) versions based on the original work; and
to perform and display the work publicly.
Copyright
protection is available for "original works of authorship
fixed in a tangible medium of expression." (see question
3.) U.S. copyright protection for works created on or
after January 1, 1978, begins at creation and lasts until
fifty years after the author's death.
Where
the creator of a work is an employee or in certain cases
where the work has been specially commissioned as an instructional
text, as a test, as answer material for a test, or for
other purposes, copyright protection lasts for 75 years
from the date of first publication or 100 years from the
date of creation of the work, whichever date expires first.
Works created prior to January 1, 1978, are also subject
to copyright protection, although the duration of copyright
may vary from the terms described above.
Copyright
protection covers both published and unpublished works.
The
fact that a previously published work is out of print
does not affect its copyright.
2.
How is a copyright obtained?
The Copyright Act of 1976 provides that copyright begins
at the moment the work is created. Registration with the
Copyright Office is not required in order for a work to
be protected under U.S. copyright law. For works infringed
prior to March 1, 1989, the copyright must generally be
registered with the Copyright Office in Washington, D.C.
before the copyright owner can sue an infringer. ( Once
the work is registered, suit can be brought for infringements
which occurred prior to registration.) For some (particularly
foreign) works infringed after March 1, 1989, registration
prior to suit is no longer required. In all cases, however,
registration provides certain advantages, including the
ability to qualify for an award of attorney's fees and
substantial statutory damages.
3.
What types of works can claim copyright protection?
As noted previously, copyright exists in "original works
of authorship" which are "fixed in a tangible medium of
expression." Among the types of works which are subject
to copyright protection are literary, dramatic, musical,
choreographic, and pictorial works, graphic works, pantomimes,
sound recordings, sculptures, motion pictures and audio-visual
works. These categories include reference works (including
dictionaries), video cassettes, and computer programs
and databases.
Copyright protection does not include facts, ideas, procedures,
processes, systems, concepts, principles or discoveries,
although these may be protectible under patent or trade
secret laws.
However,
the literary or other form of expression of these ideas
and the like is covered by copyright.
4.
How do I find out who owns the copyright for a particular
work?
You should consult both the page containing the copyright
notice as well as any acknowledgement pages in the work.
If you have a photocopy or other reproduction that does
not contain a notice of copyright or acknowledgement,
you should consult an original copy of the work to determine
if the original has the information you need.
Most
works contain a notice of copyright. However, the information
contained in such copyright notice may not always reflect
accurately the identity of the current copyright owner
of the material in question.
The
absence of a copyright notice does not mean that the work
in question may be freely copied.
The
best method for determining copyright ownership is by
contacting the publisher of the work that you wish to
copy.
5.
What are the penalties for copyright infringement?
Civil and criminal penalties may be impoosed for copyright
infringement. Civil remedies include an award of monetary
damages (substantial statutory damages, which in cases
of willfulness, my total up to $100,000 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 the plates or other articles
used in making such copies.
6.
What is "fair use"? How does it affect copyrighted material?
The doctrine of "Fair Use" under the U.S. copyright law
in limited situations permits the use of a copyrighted
work, including reproducing portions of that work, without
the copyright owner's permission. Section 107 of the Copyright
Act establishes four basic factors to be examined in determining
whether a use constitutes a "fair use" under the copyright
law. These factors are:
- The purpose and character of
the use, including whether such use is of a commercial
nature or is for non-profit educational purposes;
- The nature of the copyrighted
work;
- The amount and substantiality
of the portion of the work used in relation to the copyrighted
work as a whole; and
- The effect of the use in question
upon the potential market for or value of the copyrighted
work.
No
one factor is determinative of a person's right to use
a copyrighted work without permission. (Educational use
alone is not sufficient to make a use in question a fair
one.)
In
the legislative history of the 1976 Copyright Act, Congress
endorsed certain guidelines relating to classroom copying
for educational use. These guidelines are generally considered
to establish minimum permissible conduct under the Fair
Use Doctrine for unauthorized copying. Although some limited
copying which does not fall within these guidelines (and
which is not expressly prohibited under Prohibitions A
through F described below) may still qualify as permissible
conduct under the copyright law, copying which does comply
with these guidelines generally constitutes permissible
conduct under the current copyright law.
One
thing is certain...when in doubt, request permission!
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