Copyright FAQ

This page provides only general information. Landmark College Library Staff is available for further questions, but true legal advice can only be provided in the course of an attorney-client relationship. (Printer Friendly .PDF Version)

General Information

1. What is copyright? What does it cover?

2. How is copyright different from trademarks and patents?

3. How is copyright different from plagiarism?

4. How can I tell if something has a copyright?

5. What are some of the changes that copyright law has gone through?

6. Under what circumstances may I use a copyrighted work?

7. How do I request permission to use a copyrighted work?

8. What is “fair use” and to what does it apply?

9. How can I figure out if what I want to do is considered “fair use”?

10. Is there anything else that should be taken into account?

11. What penalties are there for copyright infringement?

Internet/World Wide Web Media

12. How does the application of “fair use ” differ with this kind of material?

13. What about materials found on the web? Can I copy them?

14. Can I have a link to a different site on my website?

15. Can I use someone else’s material on my website?

AV Media

16. Can AV materials being used in a classroom without seeking permission?

17. How does the application of “fair use ” differ with this kind of material?

18. May a program broadcast by the local cable system be videotaped for classroom use?

Faculty

19. Can I create a course reader?

20. What can I do if course materials have been ordered for a class but are late in arriving at

the bookstore, or are no longer available?

21. Can I scan an article and make it available to my class in a shared folder?

22. What if I ask for permission but don’t get it before my deadline? Can I go ahead and

use the material anyway?

23. Must an instructor include the copyright notice on every copy s/he makes?

24. What is my responsibility for my students?

25. How can I protect my own materials that I have created?

26. What if I still have questions after reading this?

General Information

1. What is copyright? What does it cover? (Printer Friendly .PDF Version)

It is exactly what it sounds like. A copyright is the rights to the copy, or the body, of a work. According to Title 17 of the United Stated code, Chapter 1, Section 102, it guards “original works of authorship fixed in any tangible medium of expression.” In other words, it is designed to protect works of original content, either published or unpublished.

For further information, including definitions and scope of copyright law, please refer to the text of Title 17, Chapter 1.

2. How is copyright different from trademarks and patents?

Trademark refers to the registration, and rights pertaining thereto, of an icon, or services, or a product, for the owner of the trademark. Patent refers to the same thing with regards to inventions, and in some cases ideas.

3. How is copyright different from plagiarism?

Plagiarism is unlike copyright because it is an intellectual concept, not a legal one, and it refers to using someone else’s work and/or content and presenting it as your own.

4. How can I tell if something has a copyright?

There is no easy answer to this question. The rules have changed many times, and will most likely continue to change.

The most important thing to know is that, currently, copyright is automatically conferred at the moment the work is begun. So, even if it does not have a copyright notice listed, chances are that it is still copyrighted. Everything that is eligible is copyrighted if it was created after March 1, 1989.

5. What are some of the changes that copyright law has gone through?

There are too many changes to discuss them all. They are very convoluted, but here is a quick overview:

• Anything that was published on or before December 31, 1922 is in the public domain
(meaning not protected by copyright).

• Things published between January 1, 1923 and December 31, 1978 are protected for 95
years from the date of publication.

• After 1978 the rules changed to reflect the life of the author as opposed to the date of
publication. Works are protected until 70 years after the author’s death. Unpublished works
that were created prior to the 1978 date are protected in the same way.

For further information, please refer to a chart on the University of North Carolina website (created and maintained by Lolly Gasaway).

6. Under what circumstances may I use a copyrighted work?

There are many situations in which you may use someone else's work. The first and most important is to ask for the copyright holder's permission. The second is specific to academic circumstances, and is referred to as "fair use."

7. How do I request permission to use a copyrighted work?

Please refer to the Association of American Publishers’ Tips for Requesting Permission to Use Copyrighted Literary Works. Or, if you're willing to pay a per-request fee, the Copyright Clearance Center can facilitate and speed copyright permission requests.

8. What is “fair use” and to what does it apply?

“Fair use” is usually used as a defense plea used against allegations of copyright infringement. This has come about because it covers the exceptions to the uses normally restricted to the copyright holder. In other words, use of copyrighted materials without permission is allowed in certain limited circumstances – most importantly for those in the Landmark College community, educational uses are covered to a certain extent. It applies to any copyrighted material, but not always in the same way.

9. How can I figure out if what I want to do is considered “fair use”?

“Fair use” can be very different with regards to different media types. There are some specific situations dealt with below, but there are some general rules. There is something called the Four Factor Fair Use Test. This takes into account the following:

• The purpose and character of the use.
  (Examples: nonprofit, educational, news-reporting)
  
• The nature of the work.
  (Examples: fact, published, unpublished)
  
• The percent of the original being used. (The smaller the portion is, the better off you are. A
  good rule of thumb is no more than 10%of the original, with many stipulations depending
  on the format and the size.)
  
• The effect of the use upon the potential market of the work.

It is important to note that there is an increasing trend of judges placing the major emphasis on the last criteria—the financial effects that the use can have.

For further information about what portion of a work may be used, Hampden-Sydney College has a great table that lays this out ; it is about ¾ of the way down on the page.

Also, the Office of General Counsel of the University of Texas System has developed a great page which includes a section called Rules of Thumb, which can serve as a guide for what is and what is not allowed. It also has a section which explains the four-factor-test in plain language.

10. Is there anything else that should be taken into account?

There are other aspects that need to be considered, as well. The following list is not exclusive, but covers the major points:

• What format will the copied item be presented in? The rules are much more stringent if one is going
  to make it available in a digital format as opposed to print. They become even stricter when it is being
  offered through the World Wide Web as opposed to a local intranet. It also needs to be a spontaneous
  event. In addition, no more than one copy per student may be made.

There is no hard and fast definition of these rules, and they are not all that is considered. Different judges apply them differently.

For further information about this issue in general, please refer to the text of Title 17, Chapter 107.

11. What penalties are there for copyright infringement?

If found guilty of copyright infringement, you can be slapped with both criminal and civil penalties. Criminal punishment does vary depending upon the severity of the offense, but you can be sent to jail for up to ten years per count and fined up to $2,500. As for civil punishment, the fines can go up to $150,000 per work infringed.

For further information, please refer to the text of Title 18, Part I, Chapter 113, Section 2319.

Internet/World Wide Web Media

As with all of the different types of media considered here, information on the World Wide Web and the Internet is automatically covered by copyright. However, because of the ease of access and of copying, there are some special considerations.

12. How does the application of “fair use” differ with this kind of material?

Because this is not so much a type of media as a venue, it is hard to describe how the four factors really apply. It depends largely upon what kind of work you are thinking of using. A good general measure is no more than 10% of the whole work may be used, and sometimes less. When in doubt, consult an authoritative source. But this does apply to everything on the Web—pictures, articles, designs, everything. There are a lot of places that provide free animation and the like, but be careful—with a lot of graphics, you can never be sure if it wasn’t originally lifted from a copyrighted site.

13. What about materials found on the web? Can I copy them? (Please note that this question applies

to EVERYTHING found on the web – music, articles, graphics, programs, etc.)

This is not an easy question to answer. It depends upon where you found it, where you’re planning on using it, how you will use it, how much of the original. It is better to be safe than sorry, though. You should ask permission. Most website creators list a way to get in touch with them right on their site.

For other methods to contact the creator/author, refer to the second paragraph of the answer to question #5 above.

14. Can I have a link to a different site on my website?

The short answer is yes. Web addresses, or Uniform Resource Locators (URLs) cannot be copyrighted. Therefore, creating a hyperlink on your website is allowed. You are not legally required to ask permission for copyright reasons. On the other hand, it has often been found to be a trademark violation. This is based on the level of confusion that may result for the person using the website; theuser may not be sure to whom the piece belongs. The courts have also found in favor of companies when others have linked to internal pages on their website, as opportunities for advertisement is minimized. Also, it is just good manners to ask.

For further information, please refer to this article by Martin H. Samson.

15. Can I use someone else’s material on my website?

Without permission, no. Using someone else’s material on a website, whether that website is foreducational use or not, is not usually considered fair use because the potential audience (everyone who has access to the World Wide Web) is so large.

AV Media

AV Media can be analog or digital, but the rules apply equally no matter what format it takes.

16. Can AV materials being used in a classroom without seeking permission?

Yes, as long as it is a part of regular classroom instruction and is of an educational use. Copyright law allows for showing the whole videotape or DVD in the context of face-to-face instruction.

It is not allowed as a substitute, such as in a situation where the instructor is absent and the class is given a video to watch that has nothing to do with the subject of the class. It is not allowed for entertainment purposes. It is also not allowed in distance education circumstances.

For further information, please refer to the text of Title 17, Chapter 110.

17. How does the application of “fair use” differ with this kind of material?

As was stated in the answer to question #7, the major difference is in the amount of the work that one is allowed to use.

18. May a program broadcast by the local cable system be videotaped for classroom use?

If it was on basic service, yes. If it was on a premium channel or pay-per-view, no.

Faculty

The law applies equally to everyone in an educational setting, but there are certain circumstances that

faculty are more likely to encounter. This section addresses those questions.

19. Can I create a course reader?

This is a very complicated question, and the answer is even more complicated.

From a review of the literature, it is unclear. Sometimes the answer is yes, and sometimes the answer is no. Different courts have had different opinions on this question. When contacted, the Copyright Clearance Center indicated that permission must always be obtained. All of the factors noted above must be taken into account, plus many others.

You are better off making copies of the individual articles and/or chapters you want to use as the need arises as opposed to creating a course reader at the beginning of the semester. In other words, err on the side of caution.

If you are set on creating a course reader, please consult the sources listed below for further information and please consider consulting a lawyer familiar with copyright law.

For further information, the Office of General Counsel of the University of Texas System has created an easy-to-read condensation of the rules concerning copying in an educational atmosphere.

20. What can I do if course materials have been ordered for a class but are late in arriving at the bookstore,

or are no longer available?

Contact the copyright holder for permission to make copies.

For further information on seeking permission from copyright holders, please refer to the Association of American Publishers’ “Tips for Requesting Permission to Use Copyrighted Literary Works.” Or, if you're willing to pay a per-request fee, the Copyright Clearance Center can facilitate and speed copyright permission requests.

21. Can I scan an article and make it available to my class in a shared folder?

This is probably okay as long as the only people who have access to that folder are the students and that instructor, and so long as it is not available for a price in a digital format.

22. What if I ask for permission but don’t get it before my deadline? Can I go ahead and use the material

anyway?

No, you should not use the material. If you do not get permission, you cannot assume that it is okay.

23. Must an instructor include the copyright notice on every copy s/he makes?

Yes.

24. What is my responsibility for my students?

You are not responsible for their independent actions that result in copyright infringement. As was noted above, plagiarism and copyright infringement have a lot in common, but they are not the same thing.

If you would like to educate your students, there are many resources available. Besides using this FAQ, the librarians are a good resource. Additionally, there is a useful website produced by the Copyright Society of the U.S.A. that is geared toward teaching school aged children about copyright.

25. How can I protect my own materials that I have created?

It is important to know that copyright is automatically conferred upon all intellectual property. Also, you can mail a copy of the materials to yourself, and not open it when it arrives. That way you can prove that you had those ideas at a certain date. If you need more than this to feel protected, you can register with the United States Copyright Offices.

For further information and links to important forms, please refer to the U. S. Copyright Offices' Frequently Asked Questions about Copyright—Registering a Work.

Also, for Landmark College faculty: Whether or not materials created for instruction at Landmark are works for hire or owned by the individual faculty members is not always clear-cut. For further information, please refer to the Copyright Policy on the Landmark College intranet (available on-campus only).

26. What if I still have questions after reading this?

If you are a part of the Landmark College community, please feel free to contact the library staff. Also, please consult the websites listed above as resources for further information.

Please do not assume that what you have in mind is okay if it is not specifically discussed here. The penalties can be very steep and the courts can be very unforgiving.

Copyright Resources

Copyright Statement