Copyright exists to balance the interests of content users with those of content creators.
As a content user, it is your responsibility to determine whether your use of another person's intellectual property is lawful and ethical.
Copyright statutes and case law might not address your specific context; in these cases, you need to make a good faith judgment on whether and how to use others' content.
You should consider a work's protected status, the nature of your use, and obtaining permission in making this determination. In the event that your use is not allowable and you cannot obtain permission, librarians are available to help you find alternative content.
The following framework and resources are guideposts in this decision-making process. The Copyright Officer of the College is also available to consult on matters of copyright.
Step 1: Determine the protection status of a work.
Possibilities include (but are not limited to):
| Status | User rights | Next Steps |
|---|---|---|
| Copyright-protected* |
Subject to permissions and conditions of copyright holder(s), unless the use is allowable. Includes orphan works. |
Step 2: Determine allowable uses. |
| Licensed for reuse |
Subject to conditions of license, unless the use is allowable. Includes Creative Commons-licensed works. |
Use it in accordance with the license!, or Step 2: Determine allowable uses. |
| Public domain |
Unrestricted. Includes works licensed under Creative Commons 0. |
Use it! |
Things to Keep in Mind
*The safest default assumption is that a work is copyright-protected, even if the copyright is not registered. Copyright protection automatically goes into effect for eligible works as soon as they exist in such a way as to be stable and shareable.
Copyright duration varies by publication date, published status, and context of creation. Generally speaking, works published on or after 1 January 1978 carry a copyright protection term of creator's life + 70 years.
Works enter the public domain when their copyright terms expire. Generally speaking, works published before 1923 are in the public domain.
Image: Trend of Maximum US General Copyright Term by Tom W. Bell, CC 3.0 BY-SA.
Resources for Determining Protection Status
Consult The Copyright Genie by Michael Brewer & ALA Office of Information Technology Policy (2012) to determine a work's protection under US copyright. CC 3.0 BY-NC-SA.
Search copyright registration records held by the US Copyright Office in the Library of Congress.
The Public Domain Slider is a tool for determining whether a given work is in the public domain based on its publication status and date. Michael Brewer & ALA Office for Information Technology Policy, 2012, CC 3.0 BY-NC-SA.
The table, Copyright Term and the Public Domain in the United States, by Peter B. Hirtle (Cornell Copyright Information Center) is a comprehensive guide to determining when a work will enter the public domain. CC 3.0 BY.
Step 2: Determine allowable uses.
Since the purpose of copyright is to balance the interests of content users and creators, copyright jurisprudence limits creators' exclusive rights, allowing for the use of copyright-protected materials for purposes of teaching, scholarship, and other uses in the public interest.
Fair Use: Applying the Four Factors
Fair Use allows use of copyrighted material for the purposes of teaching and scholarship (among others). A Fair Use determination is made by reasoned consideration of the four factors: purpose and character of the use, nature of the work, portion used, and effect upon the potential market or value.
| Conditions which Favor Fair Use | Obtain Permission | |
|---|---|---|
| Purpose and character of the use |
For "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research" (17 USC § 107). Is "transformative"; uses work in a new way or for a new purpose. Is noncommercial or nonprofit. Is limited in duration and distribution. |
For uses not specified in the statute. When the protected work will be duplicated or reused in a non-transformative manner. When use is commercial or for-profit. When use is iterative or ongoing (such as in course materials used semester-after-semester). When use creates a derivative of the protected work (translation, adaptation, format conversion, etc.). |
| Nature of the work |
Published previously. Primarily of a factual nature (ex. nonfiction). Provides limited new content (in relation to previously copyrighted material). |
Is unpublished (not simply out-of-print). Primarily of a creative or imaginative nature (ex. fiction). Provides considerable new content (in relation to previously copyrighted material). Was produced for the same purpose as the intended use (see notes on transformative use, above). Is "consumable" (ex. workbooks). |
| Portion Used |
Is limited in quantity (with respect to the work as a whole). Is limited in quality (not the "heart" of the work). Does not exceed the amount required to achieve the purpose of the use. Complies with Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions (aka the Kastenmeier Guidelines and Classroom Use Guidelines).* |
Is unreasonable; exceeds the amount required to achieve the purpose of the use. Is the "heart" of the work. |
| Effect upon the potential market or value |
Copy to be used is a legal copy. Attribution is given. Potential for use beyond the intended purpose and audience is minimized. Work is out-of-print or unavailable to license. Market for work is negligible; or, use creates or improves market for the work. Use of work will not impact its [potential] market value. Copyright holder cannot be identified after a reasonable search, or does not respond to requests for permission (see information on obtaining permission). |
Copy to be used is not a lawful copy. Attribution is not given. Use exceeds the intended purpose or audience, or impacts the potential market value of the work. Work is commercially available and has a viable [potential] market. |
Fair Use became public law as a section of the Copyright Act of 1976.
Things to Keep in Mind
The four factors must be considered holistically; no single factor can necessarily be used to determine an allowable use.
*While the Classroom Use Guidelines have been cited in copyright case law, they neither carry the force of law, nor guarantee 'safe harbor' in instances of litigation. For detailed legal critique of Fair Use guidelines, refer to Kenneth D. Crews's 2001 Ohio State Law Journal article, "The Law of Fair Use and the Illusion of Fair Use Guidelines."
TEACH Act and Online Learning
The Technology, Education, And Copyright Harmonization Act of 2002 updates sections 110(2) and 112 of Copyright law to account for the needs of online and hybrid courses. The TEACH Act outlines the rights and responsibilities of instructors, students and qualifying institutions with respect to the use of protected materials in technology-mediated instruction:
| Rights | Responsibilities | |
|---|---|---|
| Instructors |
Performance of [complete] nondramatic literary or musical works; and reasonable, limited portions of any other work.* Display of a work comparable to that which would occur in a face-to-face class.* Conversion of a protected work from analog to digital format, to be used in compliance with applicable laws, when a digital version is not otherwise available to purchase or license. *These rights do not extend to "textbooks, course packs, or other material in any media,.. which are typically purchased or acquired by the students in higher education for their independent use," to works produced or marketed specifically for online learning, or to materials placed on course reserve at the library which would not normally be used in the context of a face-to-face class meeting (17 USC §110(2)). |
Must use lawful copy. Performance or display must be "an integral part of the class experience" and occur in the course of learning activities which are directed, supervised, or mediated by the instructor (see note about transformative use under Fair Use) (17 USC §110(2)). Performance or display supports and directly relates to the course content, learning activities and outcomes. Transmission of protected works is restricted, by technical or other means, to students officially enrolled in the course. Include a copyright notice with online materials, such as: Copyright [year of first publication] [copyright holder]. Example: Copyright 2016 Jane Doe. |
| Students | Engage with a protected work in the context of learning activities for a course. |
Be officially enrolled in the course for which protected materials are used. Obtain legal copies of "textbooks, course packs, or other material in any media,.. which are typically purchased or acquired by the students in higher education for their independent use" (17 USC §110(2)). Limit sharing of protected materials to those who are officially enrolled in the course for which the materials are used. |
| Qualifying Institutions |
Free from liability for the transient storage of protected works such as occurs during digital transmission over a network, when the distribution of protected works is in compliance with the TEACH Act and other applicable laws (17 USC §110(2)). |
Must be an "accredited, nonprofit educational institution" (17 USC §110(2)). Institutes copyright policies. Informs faculty, students, and staff of their rights and responsibilities under copyright and promotes compliance with applicable law. Informs students that course materials may be copyright-protected. Implements measures to prevent retention of protected works by students (and others) beyond the term of the scheduled course, and to prevent distribution of protected works to recipients beyond those entitled to access as part of their affiliation with the course for which they are used. Does not interfere with technological measures (ex. DRM) implemented by copyright holders to prevent unauthorized use of protected content. |
The TEACH Act became public law as a subtitle of the 21st Century Department of Justice Appropriations Authorization Act.
Things to Keep in Mind
The purpose of the TEACH Act is to create parity between face-to-face and hybrid or online courses with respect to the use of copyright-protected materials. Pedagogical trends like flipped classroom and self-directed learning complicate this aspect of the TEACH Act. Allowable uses of protected materials are integral to the class; relate directly to course content, learning activities and outcomes; and are directed, mediated, or supervised by instructors. In determining whether your use of protected content is allowable, reflect on whether you would use these materials in a comparable way in a face-to-face course.
The TEACH Act explicitly excludes materials, like textbooks, that students are expected to obtain for independent use in the context of a face-to-face course. Please consider adopting or developing open educational resources (OERs) if you are concerned about the impact that proprietary textbook cost has on your students' access to course materials.
Resources for Determining Allowable Uses
The Fair Use Evaluator assists you in considering the four factors to reach a reasoned Fair Use determination. Michael Brewer & ALA Office for Information Technology Policy, 2008, CC 3.0 BY-NC-SA.
"Reproduction of Copyrighted Works by Educators and Librarians," circular 21 (2014) from the US Copyright Office, interprets Fair Use, the Classroom Use Guidelines, and other relevant statutes, regulations, and government reports.
The Fair Use Index from the US Copyright Office provides browse and search access to relevant case law.
The Fair Use Fundamentals infographic provides examples of fair uses and demonstrates the public benefits of Fair Use. YIPPA and Association of Research Libraries, CC BY.
The Exceptions for Instructors eTool assists you in determining whether use of protected material is allowable in an online course environment under the TEACH Act. Michael Brewer & ALA Office of Information Technology Policy, 2008, CC 3.0 BY-NC-SA.
Analysis of the TEACH Act (bill) by then Register of Copyrights Marybeth Peters in testimony before the Senate Committee on the Judiciary, 13 March 2001.
TEACH Act FAQs from the American Library Association.
Step 3: Obtain permission.
In the event that your use of copyright-protected works exceeds those allowable under Fair Use and the TEACH Act, you must obtain permission from the copyright holder.
Maintain permanent records of your permission requests, including (but not limited to)
- detailed records of attempts to identify the copyright holder(s) of a work
- detailed records of attempts to contact copyright holders
- copies or records of all forms, correspondence, negotiations and terms, and
- detailed records of how you used the work.
These records can be used to demonstrate your good faith efforts to comply with copyright law and the permissions of the rights holder in the event that your use of a protected work is later challenged by a copyright claim.
Copyright Clearance Center (Scholarly Publications)
Search the Annual Academic License with Copyright Clearance Center (CCC): http://www.copyright.com
The College's subscription to the Annual Academic License is supported by the Library.
Search tip: For rights to articles, search by journal title. More search tips from CCC.
CCC negotiates blanket rights to use protected works on behalf of academic institutions. These permissions are detailed in a mouse-over pop-up on the search results page:
In the event that CCC has not obtained permission to a work, they will request permission from the copyright holder on our behalf, or facilitate pay-per-use rights to the work:
Artists Rights Society (Visual Arts)
Permission requests for many visual creative works may be cleared through the Artists Rights Society.
ARS accepts permission requests by webform and email.
Music Publishers Association (Musical Compositions)
Resources for identifying musical composition rights holders and obtaining permission: http://www.mpa.org/content/copyright-search​
BMI (Music Sound Recordings)
Resources for identifying sound recording rights holders and obtaining permission: http://www.bmi.com/licensing/entry/types_of_copyrights
ASCAP (Music Sound Recordings)
Resources for identifying sound recording rights holders and obtaining permission: https://mobile.ascap.com/aceclient/AceWeb/
Permission Inquiry
Submit a permission inquiry directly to the rights holder by following the guidelines for How to Obtain Permission from the US Copyright Office.
| Process | Resources |
|---|---|
| Identify the copyright holder |
Review the copyright statement on the work. Tip: The author is not necessarily the rights holder. Tip: The rights holder(s) for images, etc. contained within a work might be different than the rights holder to the containing work. Review captions for copyright statements. Search the Registration Records at the US Copyright Office. |
| Send a permission inquiry |
Contact the rights holder, providing as much detail as possible about how you will use the work, including Bibliographic metadata about the work:
Nature of the use:
Request for referral: Include a request for referral to the correct copyright owner in the event that the person you contact does not control the rights to the work. Your complete professional contact information. |
| Maintain records |
Maintain permanent records of your permission requests, including (but not limited to)
|
| Abide by the copyright holder's conditions for use |
Ensure that your use of another person's copyright-protected intellectual property is consistent with the terms which you negotiated. Maintain detailed records of how you used the work. |
Step 4: Find alternate content.
In the event that your use of copyright-protected material is not supported by a Fair Use or TEACH Act determination, and you are unable to obtain the permission of the rights holder, the final recourse is to identify alternate content.
Librarians are able to assist you in the identification and evaluation of alternate content.
- Creative Commons SearchThe Creative Commons search tool helps you limit a Web search to content licensed for reuse or that is in the public domain.
- Alt-Text: Open Educational Resources at Delaware County Community CollegeThe Alt-Text initiative supports faculty in the development or evaluation, selection, adaptation, and/or adoption of open educational resources.