Copyright for Educational Use

Copyright for Educational Use

Copyright law is complicated, with many specific protections and provisions.

This pages discuss typical copyright issues in educational institutions and will link to further information selectively.  The text here serves as a guideline and is not intended as legal advice. Refer to appropriate copyright law and College policies for full information.

These web pages contain material copied from or paraphrased with permission from several educational websites including the Hoover Library’s excellent copyright site at McDaniel College, Copley Library’s copyright pages at University of San Diego, Columbia University’s Fair Use Checklist, and the Stanford University Libraries’ comprehensive copyright website. 

COPYRIGHT BASICS

• Copyright ownership: The McDaniel College’s Hoover Library has an excellent web page defining copyright, explaining what is and is not protected by copyright law and what rights copyright holders have.

• Copyright covers “original works of authorship” which are “fixed in a tangible medium of expression,” that is, the work is put on paper, a computer screen, a piece of canvas, or placed on the Web. Works published after 1989 do not need to have a copyright notice on the work nor need to be registered to obtain copyright protection.

• The use of copyrighted material requires permission or a license from the owner.

• In the course of teaching or scholarship, and where permission or a license has not been obtained, the use of copyrighted material must be done carefully to avoid both College and individual legal liability.

Reproduction and Distribution. A key copyright protection covers reproduction and distribution. In short, copyrighted material cannot be reproduced and/or distributed in any form without the expressed permission of the rights holder.

Circular 21  U.S. Copyright Office defines reproduction as either of two forms:

• The making of copies by photocopying, making microform reproductions, videotaping, or any other method of duplicating visually-perceptible material and
• The making of phonorecords by duplicating sound recordings, taping off the air, or any other method of recapturing sounds.

Public Domain. Works that have passed into the “public domain” are no longer subject to copyright protection and may be used freely by anyone. Unfortunately, there is no central registry of public domain works. Two categories of works that are clearly in the public domain are:

• Works that were first published in the United States before 1923
• Works of the U.S. government “prepared by an officer or an employee of the United States government as part of that person’s official duties” such as federal judicial opinions, presidential speeches, congressional and federal agency reports.

Fair Use Doctrine. This provides a legal defense when copyrighted materials are used without permission. The doctrine has a better chance of providing a defense in circumstances where the infringing use was for educational and scholarly purposes. Whether a particular use is a “fair use” requires a case-by-case assessment of four subjective factors. The fair use doctrine is intended to be broad and flexible but it requires faculty and students to thoughtfully consider all four factors, education and scholarship is only part of the consideration in the traditional four-factor evaluation.  Individuals working, teaching, researching and studying at Saint Mary’s are expected to comply with applicable copyright law. If one proceeds with use without permission, the individual must have made a good faith effort to comply with copyright law including having documented their assessment of the four factors of the doctrine:

• Purpose and character of the use. Use for educational, non-profit, and personal use is favored over commercial use but not all personal and educational uses are automatically considered to be fair use.

• Nature of copyrighted work used. A factual work weighs toward a finding of fair use. Imaginative or creative works are more likely to be found not fair use.

• The amount and significance of the portion used. When only smaller portions of a work are reproduced, the balance can fall toward the favor of fair use, but brevity alone is not determinative. When larger portions are reproduced, the balance tips demonstrably against fair use.

• Potential market effect. Does the use impact negatively the value of the copyrighted work or the work’s potential market?  Little impact weighs toward fair use but when a work is available for purchase or license, reproducing all or a significant portion of it in lieu of purchasing or licensing will weigh against fair use.

For a fuller discussion, see the chapter on Fair Use from the Stanford University Libraries Copyright and Fair Use Center.

Electronic and Traditional Course Reserves

The Library offers support for electronic and traditional course reserves.  The Library complies with Copyright Law and takes its obligation very seriously. However, you may notice that we may place part or all of a copyrighted work on reserve. Under certain narrow circumstances, this is allowed. However, faculty are cautioned to work closely with  their departmental support staff to ensure materials placed on reserve are in compliance with copyright law. Just because you may see something posted in the reserve, does not mean that you can use that posting as a guide in your own assessment of the material you wish to post. The posted material may fall within a College license or may be posted with express permission from the copyright holder.

The Library staff can help instructors identify licensed, often e-versions, of works that can legally be put on reserve for their classes.

The Library and Copyright. 

• We post notice of copyright restrictions at all copy machines
• We report interlibrary borrowing statistics and pay fees as required/requested
• We employ technology to limit use of our electronic materials to those in the community stipulated by license agreement
• We protect all digital course reserves with a password
• We require faculty to obtain copyright permission for any reserve material the use of which does not qualify under fair-use guidelines, or for material that will be used in subsequent semesters.

Learning Management Systems

Although there is no specific provision in copyright law for ‘e-reserves” or uploading materials to course management systems, recent court decisions indicate that judges are likely to assess the legality of this activity similarly to fair use of print materials. If permission would be required for the use of printed course materials, it will be required for an analogous electronic use.

However, a safer alternative is to link to journal articles and streaming media (videos, films, music, etc.) within the SMC Library’s licensed databases.  Librarians can often find a linkable version for you to use and help you upload it to your course Moodle site—check with the Service Desk at (925) 631-4229 or your subject librarian.

When you post copyrighted materials on your Moodle course site, you should add a disclaimer. The one from University of San Diego’s Library site is appropriate:

All readings posted on Moodle are intended for use in this class only. Copying, emailing, or posting these materials online for any other purpose without the copyright holder’s express written consent may be prohibited by law.

However, the posting of the disclaimer is NOT a substitute for obtaining permission where it is needed or documenting the appropriateness of the use under the fair use doctrine.

Performance and Display of Copyrighted Works in the Classroom

The Fair Use Doctrine provides the broadest flexibility for classroom use of copyrighted materials.  However, a decision to make “multiple copies of copyrighted works” for classroom use or to digitize or stream copyrighted material in the classroom still requires that all four factors be weighed carefully. In general, instructors may use digitized, hosted, or streamed copyrighted media in their instruction under the following conditions:

1. Prior written permission of the copyright holder or a public performance license has been obtained.
2. The content shown is access through a link to the material (including streaming videos, music, etc.) in the Library’s licensed collection.
3. When the instructor has analyzed the planned copying, performance or display using the Fair Use Guidelines and conclude that it safely qualifies  as fair use. 
4. An excellent way to demonstrate good faith and assess whether your use is legal, is to download and fill out the Columbia Copyright Advisory Office’s Fair Use Checklist.

Circular 21 from the U.S. Copyright Office identifies the following criteria to apply for classroom use:

• The copying, performance or display meets the test of brevity, spontaneity, and cumulative effect (all defined further in Circular 21).
  • The concept of brevity includes specific length limits for poetry, prose, illustrations, and ‘special works’.
  • Spontaneity may mean that the decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time it would be unreasonable to expect a timely reply to a request for permission.
  • Cumulative effect requires that the work is specifically limited to one course and may not be repeated from term to term with generally only a limited amount of an author’s work or the contents of a collective work or volume distributed.
  • Each copy must include a notice of copyright.
• Copying, performing or displaying may not:
  • Be used to create, replace or substitute for anthologies, compilations, or collective works.
  • May not be made from works intended to be “consumable” such as workbooks or standardized tests.
  • May not substitute for the purchase of books, reprints, or periodicals.
  • May not be repeated with respect to the same item by the same teacher from term to term (If this is the case, then the instructor needs to obtain copyright permission.)
  • No charge shall be made to the student beyond the actual cost of the photocopying.

For an explanation of copyright guidelines with respect to reproducing music or recording and showing television programs, see those sections in Stanford’s Educational Use of Non-coursepack Materials 

Performance and Display of Copyrighted Works in Distance Education

The TEACH Act of 2002 was put in place to enable sharing materials for distance education, but the law is much narrower than the exceptions for face-to-face classrooms. Provided the requirements are followed, transmissions of performances of entire non-dramatic works and reasonable and limited portions of any other performance or audiovisual work may be made without obtaining permission from the copyright owner. To claim copyright exemption under the Teach Act:

• The use must be limited to class participants only as a part of “mediated instructional activities.”
• The institution must technologically limit access only to class participants.
• The amount must be limited to what is typically displayed in the course of a live classroom session. Nondramatic literary and musical works may be performed in their entirety, but other works may be performed or viewed in limited portions.
• Works that would typically viewed or read outside of class session time or would otherwise be purchased by students (i.e., textbooks), are excluded from fair use.
• As far as technically feasible, the work must not be able to be retained by students.
• Items must display a copyright notice.
• The institution must have a publicized copyright policy.

The TEACH Act does not exempt fair use of material as it may pertain to:

• Electronic reserves or course packs
• Textbooks or other digital content provided under license that students would normally be expected to purchase.
• Conversion of materials from analog to digital

For those instances of reproduction and/or distribution, expressed permission must still be obtained from the rights holder.

Using Digital Content

Digital resources are those materials available electronically from the rights holder. The copyright holder retains the right to limit or grant use of the electronic content. These rights and conditions are outlined in individual license agreements that the College signs with each of these vendors or rights holders. All licenses are different; some are more prohibitive than others. The following are some common restrictions:

• Restricted to current Saint Mary’s users
• Limited to a defined number of simultaneous users
• Use for non-academic (or specifically for profit) purposes is prohibited.

A restriction that is not as common but applicable in some databases is a prohibition of using or linking specific digital content in course reserves (i.e., Harvard Business Review).

Check with a librarian to learn if a digital resource you are interested in using has special license restrictions.

Seeking Permission to Reproduce, Perform, or Distribute

If seeking permission to reproduce or distribute an item protected by copyright, you must seek that permission from the rights holder. Please note that a rights holder is not necessarily the author or creator. Copyrights are often held by publishers or producers. Major publishers can be contacted and asked to grant reproduction and/or distribution rights for educational purposes under specific terms and/or for a fee.  Check with your department’s administrative staff for how to proceed.

Open Access and Creative Commons: Potential Alternative Permissions

Open Access journals and other resources created under "Creative Commons" licenses are still protected as intellectual property. The Creative Commons license simply allows independent content creators to easily communicate a set of permissions or limitations attached to their work. Read each license careful. Some content creators explicitly relinquish their rights and allow free, unfettered use of their creations.​ Others who attach the Creative Commons license do so to remind users that they still reserve all of the rights held by copyright holders, including attribution rules, redistribution restrictions, or fee for use. Each item with a Creative Common license must be examined case by case. Additionally, Creative Commons’ licenses are self-assigned. Realistically, little stands in the way of someone ​misusing a Creative Commons license by applying one to a work they hold no rights to. Again, each case should be reviewed carefully.

Grey Areas of Fair Use

Can I stream a film or film clip from my own Netflix (or Amazon Prime, HBO GO, etc.) account in my class?

While showing a video in class can fall under fair use (see section Fair Use Doctrine above), the terms and conditions you agree to when subscribing to these services generally limit streaming to your personal and private use only.. Therefore, you may be violating your Netflix license by streaming even a clip in front of your class. Note that the Library does subscribe to streaming video packages that include classroom use in their terms, as well as lending DVDs; check with a librarian if you are unsure whether the library can provide access to the video you wish to use.

Check with your subject librarian to learn which videos the library has purchased with public performance rights for campus use.

Can I transfer content that I own to another format to make it easier to show in the classroom?

In general, copyright law does not allow the transfer of formats (e.g. the whole of a VHS tape to DVD or streaming) without the permission of the copyright holder, except for the limited provisions for libraries and archives of Section 108.

The rationale behind this is the assumption that this would violate the copyright holder’s ability to profit from marketing a work in an alternate media, e.g., from a physical to an electronic version.

Some colleges and universities state that individuals are prevented by copyright from making DVD copies, for example of copyrighted tapes that they own and that use of such copies in the classroom is illegal.  As a campus, they warn faculty that digitization and streaming of tape copies without license or permission is not permitted.

The American Library Association has stated that “Reproducing a VHS to DVD without the prior permission of the rights-holder is an infringement of copyright. This kind of reproduction is not exempt because it is not “fair use” as defined in Section 107 of the Copyright Code and it does not qualify as a lawful reproduction under Section 108 of the Copyright Code.”  American Libraries, The Magazine of the American Library Association, VHS to DVD? 

We advise that you obtain such content from the Saint Mary’s library and not from a personal collection.

Can I freely use content from a Website if there is no copyright holder listed on the document, image, or website?  No, copyright law applies equally to electronic materials found on the Web. Works published or created after 1989 (which includes much of the content on the Web) do not need to have a copyright notice on the work nor need to register to obtain copyright.  If you do not have time to seek the copyright holder’s permission before using it in your class and if you do not intend to keep a copy for an extended period of time, for example on your Moodle LMS or use it again in a class, your use might be considered spontaneous fair use, but for one time only. Be sure to review the four factors of the Fair Use doctrine before proceeding and document your determination.

Drafted October, 2016