Copyright - Good Habits
Getting a Handle on Copyright
Created by Jan Hart, MLS, Ed.D., UAMS Library Associate Director
I hope you enjoy this tutorial on copyright.
You can start learning right now: copyright law, fair use, TEACH Act and other copyright laws and concepts do NOT give us the immediate or exact answer to all of the copyright questions you will encounter as an educator. There are several reasons for this:
This tutorial was developed for the faculty, staff, and students at the University of Arkansas for Medical Sciences (UAMS). The creator is a librarian with many years of experience and training in copyright issues. It has been approved by legal counsel as a guideline for UAMS educators. You are most welcome to use this tutorial, but modifications may be required to meet your institution's copyright policy. You will find differences of opinion in the copyright guidelines of higher education institutions on many of the issues. UAMS works diligently to inform our faculty, staff, and students about copyright. UAMS attempts to follow the intent of all copyright laws and exemptions. Also, please refer to the resources listed at the end of this tutorial as good resources for making copyright decisions. The tutorial is limited to U.S. copyright laws only.
Objective 1
Recognize what materials are protected by copyright
Objective 2
Recognize applicable exemptions to copyright for educational use
Objective 3
Demonstrate appropriate use of copyrighted and copyright-free materials
Objective 4
Model the appropriate use of copyrighted materials for colleagues and students
This module is designed to help you understand how copyright affects your teaching
Place your cursor on the following images for copyright situations
lecturing....
sharing articles....
using someone else's copyrighted works....
The answers or, more accurately, the knowledge you need to answer these questions are covered in this module.
Copyright is the protection of 'original' works of authorship 'fixed' in tangible medium or expression.
This simple statement is the basis of all copyright considerations.
Educators, students, and administrators need to know the essentials of Copyright Law and Fair Use principles. Why is it so important?
The truth is: Copyright Law and Fair Use doctrines can be very confusing and often require attentiveness and astute evaluation of a particular setting to determine the correct course of action.
It's in the Constitution!
In 1787, the framers of the Constitution gave Congress the power to "promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries" – Article 1, Section 3, Clause 8.
The copyright clause in the Constitution supports three principles:
Copyright Act of 1976
The Copyright Act of 1976 is the current federal law that outlines the protections given to original works. It also outlines the circumstances in which exemptions can be applied to ensure that progress of human knowledge is not hampered unnecessarily. Basic copyright protection provided by the Copyright Act of 1976 has changed very little since 1976.
The Copyright Uproar
The current uproar about copyright is a direct result of the ease of distribution that the digital media and the Internet have made possible. The Internet has not changed the law, just made it much more important to be savvy about copyright. Emails redistributing copyrighted materials, images downloaded from the Internet and incorporated into lectures, tests, and presentations to be delivered digitally, and inexpensive duplication and the power of student computing have created an environment where it is easy to do a great deal of harm without much effort.
Think about how difficult it used to be to share one printed copy of a book on reserve or to distribute copies of articles and images to a class. It was much more difficult (though certainly not impossible) to abuse an author's copyright when distribution was limited to paper. Now, digital communication has created an environment where distribution of copyrighted materials can zigzag across the country and the world more quickly than we used to walk to the photocopier.
Several acts have been passed in the intervening years to address copyright in a digital world, and they will be covered in this discussion as they apply. However, it's important to understand basic copyright first.
Copyright is the protection of 'original' works of authorship 'fixed' in tangible medium or expression. Even if you don't see a copyright notice, an original work is protected by copyright – whether you find it on the Web, in a book or journal article, or a handout or brochure, on CD-ROM, or any other source. Although no copyright notice or (c) is required for a work to be copyrighted, continued use of the notice is still a good idea in order to inform the public that you are claiming copyright in the work. See the sidebar for more information on copyright registration.
The expression owes its origin to the author. Originality can also mean a detailed organization of ideas. Original works can be expressed as:
Fixation of the original expression in a tangible medium occurs when the expression is made sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. The medium can be print, digital, photographic, drawn, diagrammed, or any other medium that can express an author's original work. Unpublished materials, such as dissertations and theses, have full copyright protection.
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Copyright happens instantly at the time an original work becomes fixed in any format.
Copyright holders may be the author, the institution, a publisher, a distributor or other entity. If you sign over the copyright for your article to the publisher, then the copyright holder is the publisher, and the publisher decides what it will allow to happen with your article. If you maintain your copyright to an article or any portion of the article, e.g. images, then you control what happens with the materials for which you have retained the copyright.
The copyright holder has the sole right to do any of the following five acts:
Reproduction
Copy, duplicate, transcribe
Distribution
Sell, lease, lend, rent -- including distributing in the classroom or allowing downloading
Derivatives
Make modifications to create a new work
Public performance
Show audiovisuals, video or sound clips (this includes showing audiovisuals and playing of audio clips)
Public display
Make a picture, photograph, or graphic art available for public viewing
What happened to the idea of 'promoting the progress of human knowledge'? Copyright certainly protects the author's interest, but how could you teach using the works of others if copyright preserves the five exclusive rights solely for the copyright holder?
You would have to create all learning materials yourself as you could not take advantage of the work of any of your colleagues in teaching or in the advancement of science and knowledge. That would be crippling to the stated goals of advancing science and devastating for educators!
Indeed, that is not the intent of copyright.
The Copyright Schematic below may help you understand how copyright and copyright exemptions for educators are related. Don't study it too hard right now because we will look at the individual pieces. Notice there are three highlighted boxes.
Yes! Public domain works are not copyright protected. Some works such as those from the Federal government and some state government works never were copyright protected.and are in the public domain. Some copyright holders give up their copyright and their materials are in the public domain. Very old works for which the copyright has expired after a very long time are in the public domain. Click on public domain chart to see University of North Carolina site for details on expiration of copyrights.
You have no copyright problem if you are using your own materials that you have created and for which you have retained your rights as the copyright holder. If you have assigned your copyright to a publisher or other entity without preserving your right to use the materials, you don't control use of those materials anymore.
The creator of an original work can decide that they want to share a work without any strings attached. They may waiver their rights and explicitly designate that the work is in the public domain. They no longer have any control of the work. You can use works designated public domain in any way you wish without asking permission. Also, check out Creative Commons that is in the next section.
Licensing is another way that copyright holders can share their works while restricting access and receiving benefit for their work. Materials may be made available via licenses (individually or to departments, colleges or campus.)
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Licensed Image Resources Commonly Available in Academic Health Sciences Libraries (Check your Library)
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For copyrighted materials to be considered available for use, permissions or agreements must have been granted to all, to a defined population such as educators, or to an individual..
Look for information on the educational use of Internet-based materials on the web site – either stated on the web site or via a contact email provided. Retain any record you believe gives you permission for any use such as a printout or an 'educational use permitted' statement, any correspondence granting permission. If the web site asks that you notify them if you are using their material on a web site, please do this. They are often seeking validation of the usefulness of the materials they are providing via the Internet. Your statement of use may contribute to the author's promotion and tenure.
In the infinite wisdom of our Congress, several exemptions have been made available for the educator to further education, scholarship, and research. All exemptions require that you:
Virtually any materials pertinent to the course of study may be shown to enrolled students in the face-to-face classroom.
The TEACH Act (Technology, Education, and Copyright Harmonization Act of 2002) allows access to works via the Internet or other distance education media similar to that provided for the classroom under the Teaching Exemption (exception: only portions of dramatic works and audiovisuals may be provided to distant students). You must restrict use to enrolled students, only make the material available for viewing during the relevant portion of the course, and limit downloading of materials in the same way distribution is restricted by Fair Use (for one semester for each course). TEACH Act applies only to government and accredited non-profit educational institutions.
Fair Use of a copyrighted work for purposes such as teaching, scholarship or research, criticism, comment, and news reporting is NOT an infringement of copyright. Fair Use covers copying and distribution of copyrighted works to students and is subject to conditions set out below. In determining whether your use is covered by Fair Use, four factors, described below, are considered. After you decide that Fair Use covers the materials that you are interested in sharing with students, you have restrictions on how the materials may be used.
Can you identify which exemptions you will probably be using with your course?
Educators juggle the four Fair Use factors to determine if the balance leans toward Fair Use. There is no precise description or formula to use. All four Fair Use factors have to go into your consideration of whether your use of a copyrighted work is Fair Use.
Purpose and character of the use
Face-to-Face teaching in a non-profit educational institution is considered Fair Use. Good for us! Most academic health sciences centers are non-profit educational institutions teaching students formally enrolled in their courses and programs.
Nature of the copyrighted work
Use of fact-based works is much more likely to be considered Fair Use than highly creative works. The author's original creativity is judged to be a strong factor. More good news! Medical textbooks, most journal articles, documents, reports, and other materials that you are likely to be sharing with your students are heavily fact-based. The information in a table may just list facts and may not really be a matter of copyright. It can be used that way, or the facts can be entered into a new table or other layout you create. However, the representation or expression of this information in an animation, graph, diagram or such may be highly creative. In the case of highly creative works or expressions of ideas, Fair Use will allow you to distribute the item one time but require that you get permission for continued use.
Amount and substantiality of the portion used in relation to the whole
The proportion of the material that you use and whether that portion that you are using is the most substantial or significant portion of the work is considered in the determination of Fair Use. This one is in your hands as you control what portion of any copyrighted material you use. The most common interpretation of an appropriate amount is a chapter of a book, an article in a journal, a small portion of the tables or images from a book.
Effect on the potential market or value of the copyrighted work
This is perhaps the most important factor in determining Fair Use. If you are sharing so much of a copyrighted work that it takes the place of a student textbook that your students would ordinarily purchase, you may be infringing on the copyright holder's rights. Consider whether your use of a copyrighted material realistically, not just hypothetically, affects the potential market for that material.
You can apply Fair Use to your distribution of copyrighted works if you:
In a classroom setting, you can make one copy for each of your students and handout the materials provided you charge the students no more than the cost of the duplication.
In a course management system such as Blackboard, you can make limited portions of copyrighted materials available to distance education students for downloading on a limited time basis as follows:
You will need permission to distribute the same materials in the same course in subsequent semesters.
You may allow your students to view materials as they do in the classroom for subsequent semesters if you block the students' ability to print or download the material after the first semester. Both Blackboard and Library eReserves can block printing and downloading of materials while allowing the materials to be viewed.
Fair Use does NOT conquer all!
There are several other restrictions on your use of items that have been created by others: licensed materials; 'consumables' such as tests, surveys, exercises; and commercial educational packages. Your use of these materials are governed by license and purchase agreements.
In all cases, when an item is licensed rather than purchased, the terms of the license takes precedence over Fair Use. Do read the restrictions of any licensed product if you are going to share it in any way with others. Be especially careful about software applications and software educational programs, tutorials, self-assessments, etc. Any copying and redistribution of these items will most likely have to be negotiated with the publisher or copyright holder. This is also true of web sites that require a license for use. You must restrict access as agreed with the copyright holder. Most Library resources are covered by license and must be restricted. This includes some of the electronic journals, databases, and image collections.
But, don't be unnecessarily intimidated. You may call and negotiate with the publisher or you may call on the Library to help with this.
Some educational materials, collectively called consumables, are items or instruments that were created to be used or taken. Examples of consumables include workbooks, surveys and questionnaires, exercise sheets, and tests and test questions. They are not covered by Fair Use, and you may not use them or distribute them without permission even once. The intent of this limitation of Fair Use is to allow the creator of an instrument that is meant to be 'taken' (or 'consumed') to control its use through either purchase or permission.
Because the vast majority of test questions in medical education are factual, it is, of course, impossible to avoid having questions that will be similar or identical to questions created by others. It would take a lot of creative work to AVOID having similar questions. However, vignettes and case presentation question types represent a lot of creative effort and may not to be used without permission. It is not okay to just change names or numerical values and call it your own. You can take the general idea of a question and recreate your own question.
The UAMS Library has licensed several sources of test questions that are available for you and your students to use freely. For example, Access Medicine allows instructors to use the questions found in their Lange educational textbooks.
You may not use educational packages that are sold or licensed commercially without either purchasing or licensing them or getting permission for their use. These packages or programs may originate with a commercial company or they may be the work of faculty at other institutions. If you sell a package you have created, please make sure that you retain the right (get it in writing) to use the program at your institution and to take it with you for use at another institution. Otherwise, you may end up paying to purchase or license your own work for your use with students!
Often there is a lot of negotiating that goes on in licensing or purchasing educational packages, especially online, DVD, or CD-ROM packages. You may call on the Library to help in negotiations.
And, in the end, there may be materials for which you will have to ask permission to use or to use repeatedly. You may or may not have to pay to use the material. Although the copyright holder has traditionally been the publisher, some authors have begun to retain the copyright of an article or chapter or for specific images, charts, graphics. You may need to do a little investigation to determine who holds the copyright.
Publisher's Web site Online Permission Form
Permission for use of copyrighted materials in books or journals (both electronic and printed) may frequently be made directly through a permission form on the publisher's web site
Permission Letter
If there is no permission form on the publisher's web site or if you are asking permission from an author, a letter can be directed to the publisher or author that includes information on your expected use.
Just one more thing to think about as well as copyright. Other types of protection may limit your use of materials. They will not be detailed in this module, but be aware that many visuals, jokes, cartoons, etc.- such as Walt Disney characters, Calvin and Hobbs - involve trademarks or publicity that are controlled by the owner of the intellectual property. They cannot be used without permission.
Used by manufacturers and service providers to identify goods and services -- words, names, symbols, devices
Individuals control the use: name, face, image, voice
When you have information that has economic value as a result of its secrecy and you use reasonable efforts to keep it secret, you have a trade secret. There is no registration on trade secrets.
Patent infringement occurs when another party makes, uses, or sells a patented item without the permission of the patent holder.
Some myths about copyright, and particularly about copyright of resources found on the Internet, are very hard to stamp out.
Below are some truths about copyright and about Internet
Click on an image and review the educator's dilemma. Consider the copyright implications. Then, click on the © implications.
lecturing....
Click © for implications for lecturers
sharing articles on a clerkship rotation....
Click © for implications for clerkship rotations and best articles
using someone else's copyrighted work....
Click © for implications for using images, tables, etc from someone else's copyrighted work
Columbia University Copyright Quick Guide
Kansas State University Copyright Basics Online Tutorial
Stanford University Libraries Copyright & Fair Use
University of Texas Crash Course in Copyright
U.S. Copyright Office, Library of Congress
Copyright Law and Fair Use doctrines can be very confusing and often require attentiveness and astute evaluation of a particular setting to determine the correct course of action.
Be knowledgeable
Be legal
Use all the exemptions available to you
Use appropriate means (such as bibliographies, Blackboard, eReserves) to enable students to retrieve the materials themselves
Help educate your students and others around you
Ask for assistance
email questions, comments, suggestions - Jan Hart, hartjanicek@uams.edu