• Library

    The Essential Copyright

    Frequently Asked Questions  (FAQs)

    Introduction

    Faculty and students have a compelling and immediate need for accurate information about what works they may or may not use in their courses, whether the class meets in person and/or online. Can articles, chapters, images, photographs or artwork be uploaded onto a course website or copied multiple times as a handout or as an attachment to an email? Is it lawful to stream movies or music to online students or play it in class? May student papers or works be used as examples for the class? What may a student use in assignments or projects? Are there conditions? What works are copyrighted? What is copyright infringement? How is that different from plagiarism? When and how do you get permission for what you want to do?

    Such fundamental questions should always be in mind when selecting 3rd party materials for use in teaching. Finding a valuable resource is not that helpful if you can’t use it. Since virtually every course on campus incorporates someone else’s copyrighted material, knowing what you can use, or at least how to find that out is tied to everything we teach here.

    This section of the site presents some basics of copyright law, discusses fair use, explains the different treatment between physical classrooms and online sections, and provides information on how to get permission, when appropriate.

    Copyright applies to all kinds of materials, regardless of format, even if it is on the web and even if there is no copyright notice.

    What Can I Use in Face-to-Face Classes?

    Quick Answer:  

    IF:You are a teacher or student, in a physical classroom, for an educational purpose, at a nonprofit educational institution,

    THEN: you DO NOT NEED copyright permission to show/play ALL or  any part of the work (movie, AV, music, play, photo, image, text) as long as the instructor/college has legal ownership of the work in question..

    Detailed Answer: When the last major revision of the Copyright Act occurred (1976), most teaching happened in a traditional physical space (a “real” classroom) with the instructor and the students present in the same room. Students watched movies and live experiments, listened to lectures, viewed materials and listened to music. They left the classroom with new ideas, facts, memories, and their notes.

    A face-to-face class is an environment for learning, creating, and building on what came before. As long as lawfully made copies (i.e., not pirated copies) are used, permission is not required. Why so easy? Because there is no lost market. No copies are made, except for perhaps a single overhead slide or projector copy. The law recognizes that such public performances and displays, under these specific circumstances, are so beneficial as to outweigh any harm to a market for the works used.

    Classroom teaching in this context is intended to be restricted to traditional, face-to-face teaching at a nonprofit educational institution in a classroom or other similar place devoted to instruction. Typical uses of copyrighted materials in the classroom would likely include showing the work (display), playing a movie or music (performance), or reproducing printed works in limited quantities (for example, a single copy for display or multiple copies to give to students in the class.) Educational uses are typically favored by the Copyright Act since such uses directly support copyright's constitutionally stated purpose of promoting the progress of science and the useful arts. However, check the Fair Use Checklist for limitations on classroom use.

    Works created by federal government employees within the scope of their employment are not copyrighted.

    Works that failed to comply with required formalities, when required or whose copyright has expired are also in the public domain.

    Remember you can always consult the Dean of Curriculum, Planning and Research, or a CCC librarian for guidance.

    What Can I Put In My Moodle Course?

    Quick Answer: Assume all content, regardless of format, publication status, and/or absence of copyright symbol is protected by copyright.

    Detailed Answer: While it is great to have a course management system that makes it easy to upload material to your online course, keep in mind that these same features also make it easy to infringe copyright. As in any quality course, content is king. No matter what flash or special effects are built into a system, it takes someone (you) with a comprehensive command of the subject matter to fill the empty Moodle vessel.

    Necessary Roughness  

    • Assume all content, regardless of the format, publication status, and/or absence of a copyright symbol is protected by copyright.
    • Educational use alone does not automatically mean you can use copyrighted works freely in your Moodle course.
    • Students hold the copyright to their works.
    • Giving proper attribution is irrelevant in determining copyright infringement.
    • Password-protecting a course does not automatically shield you from claims of copyright infringement or allow the upload of whatever you wish.

    What Can You Use?  

    When you reproduce, display, perform and/or transmit/distribute copyrighted materials you are exercising at least one of the exclusive rights of the copyright holder. How can you do this legally without incurring liability or paying permission fees?

    • Use your own original works, as long as you have not transferred the copyright to another entity, or, if you did, you reserved the right to use the work for your own teaching, research and scholarship purposes.
    • The primary rule of thumb is that if the work was published in the U.S. before 1923, it is in the public domain.
    • You can use federal government works created by federal government employees within the scope of their employment.
    • The Performance and Display Provisions of the Copyright Act: Section 110(2), a.k.a. the Teach Act,:
    • Allows performance of reasonable and limited portions of movies and music as long as the work was not specifically created for online mediated educational use.
    • Allows display of text, images, photos, graphs, etc. in an amount comparable to what you would have ordinarily shown in a traditional face to face classroom setting.
    • Requires access control at the class level and requires reasonable technological efforts to prevent the student from saving, downloading, printing, or otherwise having the work in accessible form after they log out of the class.

    If you are unable to fit within the TEACH Act provision, you are always free and encouraged to conduct a good faith fair use analysis, which consists of evaluating the facts of your situation in light of the four fair use factors. Click here for the Fair Use Checklist

    Remember you can always consult the Dean of Curriculum, Planning and Research, or a CCC librarian for guidance.  

    May I upload PDFs of articles or book chapters to my Moodle course?

    Quick Answer: Only if you have permission of the owner.

    Detailed Answer: If you downloaded it from our library’s electronic resource collection, the terms of the license for that resource will control what can be done with the content. Most of the licenses prohibit reposting materials but with persistent links, you can link right to the work seamlessly so it will appear as though the PDFs are on your course site. For help with this, please contact the library reference desk at 6042.

    If instead, you scanned the article from a non-licensed resource, such as a book or print journal, you will need to do a fair use analysis. Click here for the Fair Use Checklist

    Remember you can always consult the Dean of Curriculum, Planning and Research, or a CCC librarian for guidance.

    May I stream entire movies in my Moodle course?

    Quick Answer: No, not without a streaming license.

    Detailed Answer: Streaming an entire movie does not constitute transmitting the performance of “reasonable and limited portions.” Furthermore, if the audiovisual work is an educational work created specifically for online mediated instructional activities or is a pirated copy, it is automatically ineligible for TEACH. Similarly, this scenarios unlikely to pass the fair use analysis because most of the four factors are not in favor of a fair use finding. Click here for the Fair Use Checklist.  

    Although it is a nonprofit educational use, it is not particularly transformative, the nature of the work is highly creative, the amount used is the entire work, and there may or may not be an effect on the market. 

    Remember you can always consult the Dean of Curriculum, Planning and Research, or a CCC librarian for guidance.

    May I embed or link to YouTube videos in my Moodle class?

    Quick Answer: Yes, there appears to be minimal risk in doing so.

    Detailed Answer: One type of YouTube video is the type that may incorporate portions of commercially made movies and music. YouTube has a very sophisticated system in place that automatically immediately compares every second of every uploaded video with content in its rights management database and applies whatever rule the rights holder has attached to the content. Given the ubiquitous nature of YouTube, it is reasonable to assume that commercial rights holders will have deposited copies of their works in YouTube’s rights management database with accompanying instructions on what to do should any of their material show up in a video. Therefore, it follows that if a video is up for viewing on YouTube, the rights holder has allowed it.

    The other type of YouTube video often used is the homemade video. These are the ones you see of students sleeping in class, pets and children doing unusual things, and so forth. It is likely that the photographer, who is automatically the copyright holder, is the same individual who uploaded the film to the YouTube site in the first place, clearly aware that millions of people will view and possibly use or link to it. Based on that, there is a strong implied license to use it.

    Remember you can always consult the Dean of Curriculum, Planning and Research, or a CCC librarian for guidance.

    Is Copyright Law Different for Students?

    Quick Answer: No. The law is the same for students creating papers or projects.

    Detailed Answer: Have you incorporated some or all of another's work in new works that you have created? For example, did you use movie clips in an online video or music as background for your own images? Did you feel that you didn’t need permission from the copyright owner to do so because you weren't making any money from the use or you felt it was free advertising for the copyright owner? Perhaps you thought it was acceptable as long as you gave proper credit or attribution. Or maybe you thought the work was in the public domain or your use would not hurt the owner because he or she was rich enough already. Any of this sound familiar?

    If so, you are certainly not alone. These reasons, all of which are wrong, are frequently used by students to justify copyright infringement.

    Plagiarism:

    Plagiarism violates the values of academic integrity. For specific policies related to plagiarism, refer to the current Student Handbook.

    Copyright:

    As a student, you are all creating copyrighted works when you create papers, projects, and other material. Copyright automatically applies as soon as an original work is fixed in a tangible medium of expression.

    Remember you can always consult the Dean of Curriculum, Planning and Research, or a CCC librarian for guidance.

    Doesn’t Fair Use protect teachers from copyright infringement?

    Quick Answer: Due diligence is more likely to protect a teacher from copyright infringement. Click here for the Fair Use Checklist.  All that is expected of you, as an employee of a nonprofit educational institution doing your job, is that you take the time to do a reasonable/reasoned consideration of each factor in the context of your situation and make a good-faith, objective decision about each factor.

    Detailed Answer: Fair Use can be appropriately characterized as the most critical limitation on the copyright holder's monopoly control of their work. It allows certain uses of (generally speaking) portions of a copyrighted work without the need for prior permission from the work's holder. The inherent flexibility of fair use provides the necessary play in the joints between creators and those who would use portions of their works, thus enabling copyright law to achieve its  constitutional purpose of promoting the progress of science and the useful arts. Given that faculty and students are frequent users of 3rd party copyrighted materials in classes, the responsible exercise of fair use is particularly crucial to each and every class taught in America. What could be more mission critical?

    The Merriam-Webster Dictionary defines Fair Use as:

    [A] legal doctrine that portions of copyrighted materials may be used without permission of the copyright owner provided the use is fair and reasonable, does not substantially impair the value of the materials, and does not curtail the profits reasonably expected by the owner.  

    The doctrine of fair use is codified in Section 107 of the Copyright Act, where favored uses, such as education, commentary, news reporting , and criticism are set forth in the preamble, followed by four factors to be considered when determining whether a particular use is a fair use. These factors speak to general characteristics of the work used, the purpose of the use, the amount used and what potential effect the proposed use might have on the market for the original work. Rigid, bright line rules do not exist in the statute. To assume that one "answer" exists for the infinite variety of situations would destroy the very flexibility fair use is intended to address.

    What Do I Need To Know?  

    Before reviewing the four fair use factors, keep in mind:

    • Not all four factors need to favor fair use (should be at least half)
    • Reasonable minds can differ over what is a fair use
    • All that is expected of you, as an employee of a nonprofit educational institution doing your job, is that you take the time to do a reasonable/reasoned consideration of each factor in the context of your situation and make a good-faith, objective decision about each factor.

    Remember you can always consult the Dean of Curriculum, Planning and Research, or a CCC librarian for guidance.

    I just want the basics. What are the basics of copyright?

     Quick Answer:  Review the Fair Use Checklist.   

    Detailed Answer: You must know the Four Fair Use Factors.

    1. The PURPOSE AND CHARACTER of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes.  

    • The purpose generally weighs in favor of fair use for our nonprofit educational uses here at the university. But education use alone does not automatically result in a finding of fair use because all factors must be considered.
    • The character prong of Factor One is more likely to weigh in favor of fair use if your use is transformative rather than verbatim copying. Recent court decisions have emphasized that when a use is substantially transformative, the other factors are less significant. The test for a transformative use is "does the use merely supersede the objects of the original creation or instead add something new, with a further purpose of different character, altering the first with new expression, meaning, or message." Blanch v. Koons, 467 F.3d 244 (2d Circ. 2006)

    2. The NATURE of the copyrighted work  

    • Generally weighs in favor of fair use if the nature of the work used is factual (scholarly, technical, scientific) rather than works involving more creative expression, such as plays, poems, fictional works, photographs, paintings and such.

    3. The AMOUNT AND SUBSTANTIALITY OF THE PORTION USED IN RELATION TO THE COPYRIGHTED WORK AS A WHOLE.  

    • Amount is a sliding scale factor - the larger the amount of the work you use, the less likely it will be considered a fair use. As discussed above, there are no bright line rules or guidelines concerning amounts allowed, in order to preserve the fact-dependent, flexible nature of the fair use doctrine.
    • Substantiality here considers whether the portion used amounts to the "heart of the matter" or the key purpose of the work. Fortunately, selection of a particular portion of a book for reserve reading does not automatically confer "heart of the matter" status on the amount assigned. There are many other reasons why a particular portion is chosen by the professor for the class.

    4. The EFFECT of the use UPON THE POTENTIAL MARKET for or value of the copyrighted work.  

    • If the proposed use became widespread and would negatively impact the market for or value of the copyrighted work, the fourth factor likely weighs against a finding of fair use. Lost permission fees do not amount to a negative impact on the market for the work. That is, the purpose of the fair use analysis is to decide whether or not a permission fee is required; just because there is a permissions market should not determine whether a fee is necessary in the first place.

    In our society, copyright law is ubiquitous, unavoidable and applicable whether you know anything about it or not. In other words, ignore it at your own peril.

    Works created by federal government employees within the scope of their employment are not copyrighted.

    Works that failed to comply with required formalities, when required, or whose copyright has expired are also in the public domain.

    Remember you can always consult the Dean of Curriculum, Planning and Research, or a CCC librarian for guidance.

    How Long Does a Copyright Last?

    Quick Answer: A long time!

    Detailed Answer: For works created after 1978, the copyright term is the life of the author + 70 years. If such works cannot be tied to lives – term is 120 years from date of creation or 100 years from the date of publication, whichever is shorter.

    Prior to 1978 copyright laws existed at both the state and the federal levels resulting in a patchwork of laws and the 1978 law codified the major issues addressed into a single law.

    Works published in the U.S. before 1923 are in the public domain.

    Remember you can always consult the Dean of Curriculum, Planning and Research, or a CCC librarian for guidance.

    Books and articles from the library are copyright free, aren’t they?

    Quick Answer: No, libraries are subject to the same copyright laws.

    Detailed Answer: With the exception of lawyers retained by colleges, and Intellectual Property law professors, it is probably fair to say that there is no other group on campuses that knows more about copyright law, particularly as applied in the higher education setting, than librarians. Although this may also have been the case in the past, the explosion of copyright law to the forefront of critical campus issues as a result of technological innovations, especially digitization and the internet, has vaulted the library community to the top of the copyright heap. Like it or not, the library's role in provision of access to and preservation of scholarly, copyrighted material has forced librarians to confront copyright issues of first impression earlier and more visibly than the population they serve. Indeed, the very existence of lending libraries stems directly from a provision in the Copyright Act.

    Nearly every function of the library is touched by copyright to some degree. It is no wonder, then, that librarians have greater familiarity with a law that they interact with nearly every day in a meaningful way. For example, libraries are allowed to lend copyrighted materials that they own pursuant to §109 of the Copyright Act, otherwise known as the first sale doctrine. Section 108 is exclusively devoted to various functions of the library, including delineating the conditions under which libraries can make replacement copies, preservation copies, copies for patrons, copies for inter-library loan, and how to protect the library from liability for activities that take place on self-service reproduction equipment. The acquisitions department has had to evolve from a purchaser of print materials to savvy license negotiators of licenses for electronic journals and databases. Similarly, the reserves department, in moving from print reserves to electronic reserves encountered §107, the Fair Use doctrine and its application to digital online materials long before traditional classes moved to online classes. Special Collections face the question of what they can digitize, when those materials can be made available to the world, and how to handle orphan works. Hosting online blogs, wikis, and online reference services all raise copyright questions. Providing support for distance education students raises a host of other issues when the student is located in a rural area with inferior internet service. The questions and variations are nearly endless.

    The next time you think of your librarian as someone who merely puts books on the shelves, shake yourself and think again.

    Remember you can always consult the Dean of Curriculum, Planning and Research, or a CCC librarian for guidance.

    What can be placed on library reserve?

    Quick Answer: Anything having permission from the publisher, or owned by the library, the instructional department, or the instructor), may be placed on reserve.

    Detailed Answer: 

    Guidelines for consideration for Course Reserves for copyrighted materials:  

    • In-print titles:
      • No more than a single part (chapter), or a maximum of 10% of the work, whichever is smaller, should be duplicated for reserves. Percentages are based upon the total number of pages in the volume.
      • Most in-print items owned by the library may be placed on reserve.
    • Out of Print titles:
      • No more than 10% of an out-of-print book can be duplicated for reserves. Percentages are based upon the total number of pages in the volume.
      • Most out-of-print items owned by the library may be placed on reserve.
    • Journal Articles from print subscriptions:
      • A maximum of two articles per quarter from any single journal issue which is owned by the Clackamas Community College library can be accepted for reserves.
      • A maximum of one article per quarter from any single journal issue which is not owned by Clackamas Community College Library can be accepted for reserves.
    • Outside the scope of consideration:
      • Multiple photocopied chapters or articles may not be bound together in any way as this would be considered an anthology. Creating anthologies of copyrighted materials is an infringement of copyright law.
      • Consumable works: Photocopied or scanned materials from consumable works (such as, workbooks and standardized tests) will not be placed on reserve.
    • Additional Considerations:
      • Material must be legally purchased or obtained – either library-owned, department-owned, or instructor-owned is permissible.
      • Textbooks and course packs may be placed on Reserve.
      • Non-circulating items cannot be put on Reserve..

    Guidelines for licensed materials:  

    • Licensed Material will be considered for Course Reserves based on the terms of the license.
    • Licenses are negotiated with vendors of databases and not necessarily the individual journal. To identify the database for an individual journal title, please contact a librarian.

    Remember you can always consult the Dean of Curriculum, Planning and Research, or a CCC librarian for guidance.

    Acknowledgements:

    Most of the explanations in this document were written by Peggy Hoon, Scholarly Communications Librarian at the University of North Carolina at Charlotte. Clackamas Community College thanks Ms Hoon for granting permission to use her original work.

    The portion on course reserves was written by librarians at George Fox University. Clackamas Community College thanks Merrill Johnson for granting permission to use their wording.

    Clackamas Community College’s Fair Use Checklist is closely based off of Columbia University’s Fair Use Checklist, created by Kenneth D. Crews (formerly of Columbia University) and Dwayne K. Buttler (University of Louisville) and Saint Mary’s University of Minnesota’s Fair Use Checklist, both used under a Creative Commons BY License.

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    Email us: reference@clackamas.edu

    Call us: 503-594-6042