Basic Intellectual Property – Truman Library Information

November 13th, 2009 by davidkim


This copyright page was created to inform and educate the faculty, staff, and students of Truman State University, the primary web address is http://library.truman.edu/weblinks/copyright02.asp and it is a great “thumbnail view” of a broad spectrum of information.

Copyright is a form of protection given authors of “original works of authorship.” Both published and unpublished works are protected. Ownership of copyright allows the owner broad, exclusive rights to this work. Basically, these rights allow the owner to:

1. reproduce or copy the work.
2. prepare derivative works based on the copyrighted work.
3. distribute the work to the public by sale, rental, lease, or loan.
4. perform the copyrighted work publicly.
5. display the copyrighted work publicly.

For more detail on basic copyright information see:

U.S. Copyright Office. Copyright Circular 1.
http://lcweb.loc.gov/copyright/circs/circ1.html
Copyright Act of 1976

Copyright law of the United States of America : contained in Title 17 of the United States Code. Washington, D.C. : Copyright Office, Library of Congress.
Pickler Library call #: Reference KF 62 1994 A2

What is protected by copyright?

Copyright is designed to protect fixed, original works. Anything which has a physical form, as a recording, sculpture, Web site, etc. can be protected by copyright. A work must also display some form of originality and creativity. Facts and ideas are not protected by copyright, but a listing of facts may be protected if it displays originality in selection. Thus, a simple alphabetical phone book is not protected since an alphabetical listing does not exhibit a minimal level of originality or creativity. (see Feist Publications, Inc. v. Rural Telephone Service Company, Inc., 111 S.Ct. 1282 (1991))

Some works are part of the public domain and are no longer subject to copyright protection. Public domain status is determined by the date a work was created or published. See below for more details on duration. U.S. Government publications are also in the public domain. However, this only applies to works created within the scope of the government agency, and contracted works may or may not be in the public domain. Further, the opinions of state courts are public domain, but state and local governments may copyright their works.

For more information on copyright protection see:

Abrams, Howard B. “Originality and Creativity in Copyright Law.” Law & Contemporary Problems 55 (Spring 1992): 3-44.

For more information on public domain see:

O’Mahoney, Benedict. The Copyright Web site.
http://www.benedict.com

How long does copyright last?

For works created after 1/1/1978, copyright lasts 70 years after the author’s death. Works created before 1/1/1978 and still in their first renewal term are protected for 95 years from the date of the original grant of copyright.

For more information on copyright duration see:

Copyright Term and the Public Domain in the United States
http://www.copyright.cornell.edu/training/Hirtle_Public_Domain.htm

Crews, Kenneth D. Copyright Law and Graduate Research: Part III Road map for Copyright Compliance.
http://www.umi.com/hp/Support/DServices/copyrght/

Sonny Bono Copyright Term Extension Act
http://lcweb.loc.gov/copyright/legislation/s505.pdf

Fair Use

The rights of a copyright holder are not unlimited, and one major limitation of great value for instructors is the doctrine of fair use. Fair use is an open-ended doctrine which allows the public limited use of a copyrighted work without the holder’s permission. The text of this doctrine from section 107 of title 17, United States Code is given below:

ยง 107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include –
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
It is always important to consider the four factors above when considering copyright issues which arise in the classroom. Listed below are some of the major copyright concerns: photocopying, audiovisuals, music, distance learning, and Internet.

Click here for a fair use checklist created by Columbia University libraries for faculty to decide if a certain use is fair use.

Audiovisual materials

Films and videos may be used in classroom instruction. Section 110(1) of the Copyright Act of 1976 states that:
“Performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images is given by means of a copy that was not lawfully made…and that the person responsible for the performance knew or had reason to believe it was not lawfully made.”

Thus, movies purchased by the instructor, rented from a store or checked out from Pickler can be used in the face-to-face classroom setting for instructional purposes. Off-air recordings (such as news broadcasts) can also be utilized, but only to a limited extent with considerable restrictions. Any off-air recordings must be destroyed after a period of 45 calendar days. The off-air recording can only be shown twice in the classroom, during the first 10 school days in the 45 calendar day period. After the first ten days, the recording can only be used for teacher evaluation.

For more information on audiovisual materials see:

U.S. Gov. copyright circular 21
http://lcweb.loc.gov/copyright/circs/circ21

Hoon, Peggy, ed. Guidelines for Educational Use of Copyrighted Materials. Pullman, WA: Washington State University Press, 1997. p. 12-15.
Pickler Library call #: Reference KF 3020 G85

Music

Guidelines for music copyright were developed in April 1976. These are minimal or “safe harbor” guidelines for the copying of music, scores or sound recordings. The guidelines allow for the following:

Emergency copying to replace purchased copies if a performance is imminent. Replacement copies will be purchased in due course.
Multiple copies of excerpts may be made, but these excerpts cannot be performable (such as a section). In any case, the excerpt cannot exceed more than 10 percent of the entire work and only one copy may be made per student.
Printed, purchased copies may be edited or simplified as long as the fundamental character of the work is not compromised.
A single copy of recordings of performances by students may be made for evaluation purposes and this copy may be retained by the instructor or university.
A single copy of a sound recording may be made for constructing aural exercises or examinations.
The guidelines discourage the creation of musical anthologies, copying “consumable” works (i.e. workbooks, exercises), copying without inclusion of the copyright notice, and copying as a substitute for purchase of the music.
For more information on music copyrights see:

Music Education Copyright Center — National Association for Music Education
http://www.menc.org/resources/view/copyright-center

Hoon, Peggy, ed. Guidelines for Educational Use of Copyrighted Materials. Pullman, WA: Washington State University Press, 1997. p. 15-19.
Pickler Library call #: Reference KF 3020 G85

Internet/Digital Information

The same principles apply to digital information as to print, but there are some additional complications:

Subscription-based databases are generally governed by license agreements rather than by copyright. Click here to see some Pickler Library’s license agreements.
Material on the Internet may be covered by copyright or may be in the public domain. Be careful to download only legally posted materials. It may be necessary to get permission to re-post or distribute materials that are not in the public domain.
Transmitting materials over the Internet involves not only the copyright holder’s rights of reproduction and distribution, but also the rights of public performance and display, so that each transmission may result in multiple copyright infringements.
Legislation in this area is still evolving.
For more information see:
Harper, Georgia. Will we need Fair Use in the 21st Century? http://www.utsystem.edu/OGC/IntellectualProperty/fair_use.htm

O’Mahoney, Benedict. The Copyright Web site.
http://www.benedict.com

Distance Learning

It is Section 110(1) of the Copyright Act which allows for the display of copyrighted material in a face-to-face classroom setting. Rules which govern distance education are provided in Section 110(2) and further restrict what may be fairly used for instruction. Displays of materials related to the class may still be shown, such as pictures, slides, graphs and other still material. Performances are limited to nondramatic literary or musical works. While no definition is provided for “dramatic” materials, it may be inferred from common definitions that readings from textbooks, novels or poetry would be allowed, as well as performance of pop music or symphonies. Excluded dramatic works would include stage plays, musical theater, or opera. (see Crews, listed below) Unfortunately, audiovisual materials, such as videorecordings and filmstrips, cannot be used in distance learning without copyright permission. One of the most recent attempts to develop consensus on guidelines for distance learning was the Conference on Fair Use (CONFU).

For more information on distance education see:

U.S. Copyright Act. Section 110(2)
http://lcweb.loc.gov/copyright/title17/

The Conference on Fair Use (CONFU)
Proposed guidelines with supporting and opposing comments http://www.uspto.gov/web/offices/dcom/olia/confu/

Library Reserve

For detailed information see the library’s Reserve/Photocopying Policy

Copying for Classroom Use

Included in the legislative history for the Copyright Act of 1976 was the “Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with Respect to Books and Periodicals.” These guidelines provide the minimum standard for educational fair use. Since their creation, the guidelines have assumed a de facto authority and are considered a “safe harbor” in determining fair use. According to these guidelines, the creation of multiple copies for classroom use (not to exceed more than one copy per pupil) should meet three basic requirements; brevity, spontaneity, and cumulative effect.

Brevity: Generally, this allows for copying the entire work if it is small (up to 250 in the case of poetry and up to 2,500 words in the case of prose), or a portion of the work if it is longer (about 10 percent of the work). Illustrations are restricted to one per book or periodical issue.
Spontaneity: This provides for the creative inspiration of an instructor to use works in a timely manner when the request for copyright permission would be unreasonable. In other words, an article from last week’s newspaper would be acceptable, but using that same article a semester later without permission would not be fair use.
Cumulative effect: The copy is for only one course. The same author can only be copied once in the case of a short poem, article, story, or essay, or no more than two excerpts may be used. For one class there should be no more than nine instances of multiple copying.
Further, the guidelines prohibit copying which creates or replaces anthologies, copying from “consumable” materials (workbooks), and charging students beyond the cost of the actual photocopying.

For the actual Guidelines see:

Bruwelheide, Janis H. The Copyright Primer for Librarians and Educators. Chicago: American Library Association, 1995. p.30-33. Pickler Library call #: General collection Z649 F35 B78 1995

U.S. Copyright Office. Copyright Circular 21.
http://lcweb.loc.gov/copyright/circs/circ21.pdf

Although these guidelines represent the “safe harbor” for classroom use, they are often restrictive and unrealistic in the university setting. These guidelines do not carry the force of law and it is possible to exceed their minimal limits and still exercise fair use.

For more information on guidelines:

Lipinski, Tomas A., The complete copyright liability handbook for librarians and educators. New York : Neal-Schuman Publishers, 2006. Reference KF3080 .L57 2006.

Crews, Kenneth D. Fair Use and Higher Education: Are Guidelines the Answer? As published in Academe: Bulletin of the American Association of University Professors, Vol. 83, No.6 (November/December 1997). Pickler Library call #: Periodicals LB2301 A33

Library Reserve: In a sense, library reserve acts as an extension of the classroom. As such, it is subject to the guidelines and restrictions as listed above. For a copy of the Pickler Memorial Library copyright and reserve policy, please contact the circulation desk at the library.

Getting Copyright Permission

If a work you need for class is in the public domain or your use of this work is allowable under fair use provisions, then the work can be used with no further ado. Otherwise, you will need to seek the permission of the copyright holder. Prepare a brief letter requesting permission and make sure you get the permission in writing. Sometimes the copyright holder will charge a fee to use their work. The largest challenge can be determining who holds the copyright. Although the copyright is initially held by the person who created the work, copyright can be transferred or sold. Also, copyright can be held jointly and would require approval from all holders of the copyright. Usually the copyright notice on a published work will indicate who holds the copyright, and they should be the first contacted. Another possible source for finding copyright is relying on the Copyright Clearinghouse Center.

For a sample letter of requesting permission for academic copying, see page 95 of The Copyright Primer for Librarians and Educators by Janis Bruwelheide (Pickler Library call # General collection Z 649 F35 B78 1995.

For more information on seeking permission see:

WATCH: a database of copyright contacts for writers, artists, and prominent people in other creative fields. It is a joint project of the Harry Ransom Humanities Research Center and the University of Reading Library in England

FOB: Firms Out of Business: With the objective of providing information to scholars and researchers about whom to contact for permissions, this database contains the names and addresses of printing and publishing firms, magazines, literary agencies and similar organizations which are no longer in existence. a companion to the WATCH database.

Hoon, Peggy, ed. Guidelines for Educational Use of Copyrighted Materials. Pullman, WA: Washington State University Press, 1997. p. 23-25.
Pickler Library call # Reference KF 3020 G85

Copyright Clearance Center.
http://www.copyright.com/

Copyright Information Center at Cornell University

This copyright page was created to inform and educate the faculty, staff, and students of Truman State University concerning the use of copyrighted materials in the university setting. It was designed to function as a web site and paper handout. All call numbers refer to the holdings of Pickler Memorial Library.