Using Copyrighted Resources
- Fair Use
- Using Works in Print: Permissible Photocopying of Copyrighted Works
- Single copies for research and teaching
- Multiple copies for classroom use
- Using Videos in the Classroom
- Using licensed commercial products
- Copying TV programs for classroom use
- Using Copyrighted Materials in Online Teaching or Distance Education: the TEACH Act
- Using Electronic Reserves
- Using Material Found on the Internet
- Using Software
- Sharing Files through Peer-to-Peer Software
The fair use doctrine, Section 107 of the Copyright Act of 1976 is the most general of the limitations on the rights of copyright owners. It attempts to balance the needs of teachers and researchers with those of copyright owners. The fair use doctrine allows for certain uses of copyrighted works, without permission or payment, for purposes such as criticism, comment, news reporting, teaching (including, in some instances, multiple copies for classroom use), scholarship, or research.
Fair use is a "rule of reason," and because there is no universally adopted definition of fair use, the interpretation of how much use constitutes fair use is a matter of much debate. Congress provides four factors to consider in determining whether a particular instance might be considered fair use. The four factors for consideration are:
- the purpose and character of the use (e.g., commercial vs. nonprofit educational);
- the nature of the copyrighted work (e.g., workbook exercises vs. works of imagination);
- 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 market for or value of the copyrighted work.
The dynamics of the fair use doctrine involve weighing the various, and typically competing, interests. These interests have ambiguous boundaries, cannot be measured with any precision, and overlap with one another. It should be no surprise, therefore, that fair use is thought to be the most troublesome aspect in the whole laws of copyright, and in the end, only a court of law can determine how much use is fair use. Anyone, prior to use of a copyrighted work, must have a good-faith rationale that Fair Use permits the use of that work. Always properly attribute and cite information sources; for additional details about citing Internet resources, see this information from the library.
The U.S. Copyright Act allows for the photocopying of copyrighted works without first obtaining permission from the copyright owner when the photocopying amounts to a "fair use" of the material. Since it is extremely difficult to quantify "fair use" as to number copies or pages to photocopy, you should consider the four factors of fair use to determine if the use of the material falls within the parameters of the doctrine.
In general, faculty and students may make a single copy of any of the following-- book chapter, article, short story, short essay, short poem, graph, drawing, chart, cartoon, picture -- for scholarly research or use in teaching or preparing to teach a class. You should consider the four factors of fair use listed in to make sure that any additional photocopying is justified. The following demonstrate situations where increased levels of photocopying would continue to remain within the ambit of fair use:
- the inability to obtain another copy of the work because it is not available from another library or because the source cannot be obtained within your time constraints
- the intention to photocopy the material only once and not to distribute the material to others;
- the ability to keep the amount of material photocopied within a reasonable proportion to the entire work (the larger the work, the greater amount of material which may be photocopied).
Multiple photocopies for classroom use may be made by or for the teacher for classroom use or discussion provided the copying is brief and spontaneous. These copies can be distributed to students in a class without the publisher's prior permission, under the following conditions:
- the distribution of the same photocopied material does not occur every semester;
- only one copy is distributed for each student which copy must become the student's property;
- the material includes a copyright notice on the first page of the portion of material photocopied;
- the students are not assessed any fee beyond the actual cost of the photocopying.
Showing Videotapes. The rules governing the showing of copyrighted videotapes are the same as those governing any other copyrighted performance. A properly purchased or rented videotape may be used in a classroom setting in conjunction with face-to-face instruction. Care should be taken to comply with any special terms in the rental or purchase agreements.
Guidelines for copying television programs off-the-air have been developed by an ad hoc committee composed of representatives of the broadcast industry and educators. ("Off-the-air" means television programs transmitted for reception by the general public without charge, including such programs being simultaneously transmitted by a cable system. It does not include programs shown on pay cable or pay TV services; under the guidelines you are not free to videotape these for later showing.) These guidelines represent only the minimum standards for proper fair use. Since the issuance of the television guidelines, however, several important court decisions have dealt with taping at home. The logic of those cases can be extended to taping by educational institutions as well.
Based on the television guidelines and recent court decisions, it is acceptable to use videotapes of broadcast programs in the classroom provided the following steps are observed:
- Recordings may be used by individual teachers in the course of "time-shifting" the program in order to be seen in class. They may not be shown from semester to semester without permission, and they should be erased at the end of the semester in which they are used.
- Recordings should be shown in classrooms and other similar places devoted to instruction.
- A limited number of copies may be reproduced from each broadcast recording to meet the legitimate needs of teachers under these guidelines. Each such additional copy shall be subject to all provisions governing the original recording.
- Videos of broadcast recordings need not be used in their entirety, but they may not be altered from their original content. They may not be physically or electronically combined or merged to constitute teaching anthologies or compilations.
- All copies of off-air recordings must include the copyright notice on the broadcast as recorded.
As already mentioned, faculty have special privileges with respect to the use of copyrighted materials; the Technology, Education, and Copyright Harmonization (TEACH) Act of 2002 extends many of those privileges to faculty teaching in an online context, for example, when using a learning management system such as Blackboard or in a distance-education context.
In particular, the TEACH Act expands both the array of resources and the amount of those resources that can be transmitted from one location to another in the context of an online course. The following checklist sets forth those expansions as well as the conditions under which the copyrighted works can be transmitted. Follow the links to further explanations, or proceed to Appendix C for the complete set of explanatory notes for the checklist.
- The work transmitted is lawfully made or acquired.
- The work transmitted is not marketed for instructional purposes.
- The work transmitted is integral to a class session.
- The work transmitted is part of instructional activities supervised by the instructor.
- The nature and portion of the transmitted work accord with the following guidelines:
- a non-dramatic literary work (You may use all.)
- a non-dramatic musical work (You may use all.)
- a performance of any other work, including dramatic works and audiovisual works (You may use only reasonable and limited portions or a display in an amount comparable to that which is typically displayed in the course of a live classroom session.)
- Reception of the work is limited to students enrolled in the course.
- Students' retention of the work is for no longer than the limit of a class session.
- Reasonable downstream controls have been instituted to discourage or prevent subsequent dissemination beyond the student recipient.
- For conversions of a copyrighted work from analog to digital form
- no digital version is available to the institution, or
- a digital version is available but technologically protected.
- A copyright warning notice is present on the transmitted work.
Note: If these conditions cannot all be satisfied, use of the copyrighted material may still be permitted under other recent copyright legislation or under fair use provisions.
For further information on the TEACH Act, visit:
- the American Library Association's Teach Act Guidelines
- the University of Texas's Crash Course on the TEACH Act
- the American Library Association's Technological Requirements of the TEACH Act
Reserve materials include copies of periodical articles or book chapters put on library reserve at the request of Georgetown University faculty. For electronic reserves on the Main and Medical campuses, for example, the article or chapter is scanned and made accessible through GEORGE, the online catalog. The advantage of electronic reserves is they are available anytime from any computer with access to the Web.
The TEACH Act may not apply to electronic reserves since those readings are generally not used as part of a class session. Otherwise, the same copyright laws and guidelines that govern reserve practices for print reserves apply to electronic reserves. As an extension of the classroom, reserve policies are based on fair use and specifically the "Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions." These guidelines are a perceived safe harbor. They do not carry the force of law but are included in the legislative history of the Copyright Act of 1976. Materials can be used in excess of the guidelines, but at greater risk of copyright infringement. Detailed information is available in the Guidelines for Classroom Copying.
As a general rule of thumb:
- Keep reserve materials brief: single articles or chapters or other small parts of a work;
- Limit reserve materials to a small part of the total reading materials required for a course;
- Include an appropriate citation to the source materials;
- When appropriate, include a copyright notice; and
- Seek permission for reserve materials that you will use repeatedly from semester to semester.
Does copyright exist on the Internet? Absolutely. While new technologies may facilitate the easy placement online and instantaneous dissemination of text, images, and sounds, they do not nullify copyright protection. You should assume that most of the materials on the Internet are copyrighted, including electronic mail messages. Once an expression is committed to tangible medium, including a computer file, it is protected. No notice is required. So unless a work is in the public domain or the copyright owner allows further reproduction, unauthorized copying in excess of fair use or other lawful exceptions is prohibited.
When working on the Internet keep in mind:
- It is tempting to copy or download software and other electronic information sources with the press of a keystroke; however, remember that ease of use does not make it lawful;
- Include a copyright notice on materials you author and post; the University encourages you to grant permission to copy for non-profit education or research purposes, such as a Creative Commons License, provided credit is given to you as the original author, unless your work is subject to contractual restrictions or conditions for which the charging of a royalty would be appropriate;
- Look for a copyright notice on other materials to help determine what use is permissible;.
- Unless permission to use the materials is explicitly stated, falls within fair use or one of the other limitations on the rights of copyright owners or is subject to a license, do not copy, download, scan, digitize, or forward materials without the explicit consent of the copyright owner as documented in writing. Do not re-post such material on your own web site without permission. Instead, use a link to the source material.
There are five types of software: commercial, shareware, freeware, open source, and public domain. There are a number of other software categories and licenses.
Commercial software is the most common form of copyrighted software. When you purchase commercial software, you purchase a specific number of licenses to use the software. The conditions and restrictions of purchase will vary, so read the purchase agreement carefully. Distributing commercial software in excess of a license agreement is illegal. Increasingly commercial software comes with a shrinkwrap license and a prohibition against breaking the technological barriers to re-use that have been incorporated into the software. According to the Digital Millennium Copyright Act of 1998, it is illegal to circumvent those barriers.
If creation of back-up copies is permitted, make no more than one copy for archival purposes. This back-up copy is for use only if the original is damaged. The back-up should be erased or discarded when possession of the original ceases. You should not, however, make copies of software documentation, because most licensing agreements do not allow it, and the Copyright Act would allow only archival copies of the software itself. Make only those modifications to the software permitted by the license agreement.
Shareware is copyrighted. In general, shareware allows users to make and distribute copies. After initial evaluation, users generally must purchase the shareware if they wish to retain it.
Freeware is copyrighted. In general, freeware software stipulates that copies may be made for not-for-profit distribution. Freeware even allows for modification, provided it is not then sold as commercial or shareware software. Freeware can generally be redistributed but not modified.
Open source software has become more common in recent years. The software's source code is copyrighted by one or more persons/entities and distributed under an open-source license such as the GNU General Public License (GPL) or Berkeley Software Distribution (BSD). Such a license may require that the source code be distributed along with the software, and that the source code be freely modifiable, with at most minor restrictions, such as a requirement to preserve the authors' names and copyright statement in the code.
Public domain software is not copyrighted. The copyright holder of public domain software must explicitly relinquish all rights to the software and must mark the product as public domain. Public domain software can be freely copied, modified and distributed.
Peer-to-peer (P2P) technologies are distributed systems for sharing files online. Widespread use of computers and the Internet have reduced the cost of distributing entertainment media and increased the access to content distribution channels. P2P software such as BitTorrent and Kazaa (there are dozens of other P2P software) has replaced centralized technologies such as Napster to become the most common medium for online distribution of songs, movies, software and other popular digital media. The majority of studies on P2P file traffic have concluded that most of the files flowing through these networks are copyrighted material.
The University does permit the use of P2P software for legitimate purposes. The courts have ruled that they also have significant non-infringing uses that make them legal technologies. For example, LionShare, an open source P2P application, is used by the higher education community for sharing academic papers and information. The creator of BitTorrent, another open source P2P application, designed his software to distribute large and legitimate files, particularly free and open source software.
However, the majority of P2P users continue to distribute copyrighted materials without authorization from the copyright holders. For example, BitTorrent is well known for its illegitimate uses in distributing copyrighted movies. According to CacheLogic, a Web analysis firm, BitTorrent accounted for 35 percent of total Internet traffic in 2005; a substantial share of that file traffic was movies.
Such activity limits the University's network bandwidth available for teaching, learning, research, and communication. It also may destabilize the University network by spreading viruses and spyware, and installing backdoors that allow unauthorized users access to the University desktops and network resources.
The University is legally obligated by the Digital Millennium Copyright Act (DMCA) to respond to complaints and subpoenas about infringing activity received from copyright owners. This process (Net ID required) starts with an internal University investigation to determine the claim or subpoena's validity. If the claim is valid, the University may require the user to remove infringing materials, perform a University audit of a user's computer or take other actions according to the University's DMCA and Courtesy Notification Procedures. If the University received a valid and lawfully issued subpoena, it must divulge the user's identity to the copyright holder.
In some cases, a copyright holder may take legal action against a user. The University cannot indemnify users who traffic in copyright-protected materials. Furthermore, faculty and staff that participate in illegal file sharing using University equipment can open up the university to additional legal action. More information on other University policies and procedures related to peer-to-peer technologies is available at the Technology Policies page maintained by the Office of Information Services.
Several court decisions have confirmed that unauthorized downloading or distribution of most popular copyrighted content without authorization is illegal and may result in civil and criminal penalties. The penalties are steep. Federal copyright law entitles the copyright holders to seek statutory damages of $150,000 for each act of willful infringement (for example, each song or movie illegally copied or distributed). A felony charge could result in an additional $250,000 fine and 3 years imprisonment.
Copyright holders are increasingly vigilant about using litigation to deter P2P use. The first lawsuits involving P2P users were settled out of court. Four students admitted to copyright infringement and each agreed to pay more than $12,000 in damages. These students set-up file sharing "super hubs" on their campuses network to distribute hundreds of thousands of songs and movies.
The majority of current subpoena actions and lawsuits on P2P users are filed by large content companies that are members of the Recording Industry Association of America (RIAA), Motion Pictures Association of America (MPAA) and the Software & Information Industry Association (SIIA). By November 2004, thousands of subpoenas were issued through the courts; hundreds of these subpoenas were sent to university students, faculty and staff.
Digital music is often associated with the ubiquitous MP3 music file format. Most legitimate music is sold on digitally protected formats that limit or prohibit file sharing and copying, such as Apple's AAC and Microsoft's WMA. The audio quality of these formats is comparable to MP3s with some nuances that only music aficionados will notice. Consumers may purchase digital music legally at several online stores. A list of many authorized web retailers is available at Musicunited.org.
The University's Legal Music, Movies and Software page provides links to resources and information mentioned in this section.
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