Copyright Basics for Everyone part 2: How to Use Intellectual Property without Breaking the Law and Offending People
I have a confession to make: I have probably infringed on a few copyrights in my time. You probably have too unwittingly. You need an image to add to a PowerPoint presentation, report, or website, so you do a Google image search, grab one of the images, and use it. This, I regret to inform you, might be an infringement of the intellectual property rights of the creator of the image. It is a common misconception that if something is posted on the open web it is free to use without restrictions. Most content on the internet, be it text, photographs, or multimedia, remains under copyright regardless of its availability to the public. Recall from my first post that copyright holders retain the exclusive right to:
- reproduce a work
- create derivatives based on a work
- distribute copies of a work to others
- perform or display a work in public
- grant permission to others to do the aforementioned things
Now, if copyright law stopped here, a lot of activities that happen on a daily basis on at schools, universities, and libraries would be infringement; however, there are a number of exceptions that allow the public to make use of copyrighted works under certain circumstances. In this post, I will give you a rundown of some of these exceptions.
Fair Use is a broad set of guidelines set out in the law that permit use of copyrighted materials in certain circumstances. Fortunately, copyright law is fairly lenient when it comes to using copyrighted material for educational purposes. Teaching, scholarship, and research activities are specifically named in section 107 of copyright code as areas in which people have more latitude to make reproductions of works protected by copyright. However, just because a use is educational in nature, it is not necessarily a fair use. To determine whether the use of a copyrighted item is a fair use, these four factors must be considered:
- purpose and character of the use
- along with the aforementioned educational uses, news reporting, criticism, and commentary are favored for fair use
- nonprofit uses are favored over commercial uses
- transformative fair use is a kind of use where a copyrighted work is used to create something totally new (for example: juxtaposing images in a collage)
- the nature of the copyrighted work
- works that are largely factual are more favored for fair use while highly creative works are less favored
- the amount and substantiality of the portion of the work that is being used
- using a smaller portion of a work is generally more favored
- the effect on the market value of the copyrighted work
- an adverse effect on the revenues earned by the copyright holder would be a strike against the use as a fair use. This factor is often heavily relied on in fair use cases.
All of these factors must be considered together to determine if the use of a copyrighted work is a fair use or infringement. However, even if you determine that the way you want to use an item is a fair use, you are not excused from giving proper attribution to the creator of the work. Fair use is not a license to plagiarize, and trying to pass off someone else’s work as your own could have consequences for you professional, academically, and legally.
Going back to my example at the beginning of this post, grabbing an image from Google for a presentation or academic project may very well be a fair use, but you should consider the four factors before deciding whether and how you should use something. If you do think that your use would be a fair use, it is always good to make sure to give proper attribution to the original creator of the work as well.
Other Copyright Exceptions and Limitations
First sale is the idea that once a person takes ownership of a physical copy of a copyrighted work, they may lend, sell, or otherwise use the item as they want. Spelled out in section 109 of copyright law, it permits libraries to lend books and allows for secondary markets for books and music recordings among other things. However, in these days when so much copyrighted content is digital, first sale is not as powerful a limitation to copyright as it once was because the acceptable uses of digital content are often more limited as dictated by licenses that purchasers are required to sign.
The TEACH Act
A recent addition to copyright law, section 110 grants further exceptions to educators, especially in distance learning contexts. It allows for teachers of online or hybrid classes to make materials for those classes available online to students within certain parameters. Here is a less technical description of the provisions of the TEACH act.
Works enter the public domain when their term of copyright expires. Intellectual property that is in the public domain is completely free of restrictions on use. For most works, the term of copyright is life of the author plus 70 years, and most works published prior to 1923 are in the public domain; however, due to a provision in the last copyright term extension, nothing will enter the public domain in the United States until 2019. Most government documents are also in the public domain because they cannot be copyrighted according to the law.
This concludes our brief tour of some of the exceptions and limitations to copyright law in the United States. This list is far from exhaustive, but these are the most relevant exceptions to the Teachers College community. Stay tuned for a companion to this post that will highlight some resources that can help you to avoid copyright infringement and for a final post that will be about issues you should be aware of as a copyright holder yourself.
This blog series was inspired by the copyright workshop “What’s Fair, Copycat? The A,B,C’s of Copyright” put together by senior librarians Jennifer Govan and Allen Foresta. Slides of the presentation can be found in Pocket Knowledge (free account needed for access).