The Catholic University of America

Copyright Questions and Answers

  - Reserve Room Questions
- Miscellaneous Fair Use Questions
- Library Copying Questions
- Public Domain Questions
- Miscellaneous Copyright Questions

These questions and answers were written by the CUA Office of General Counsel to address concerns members of the CUA community might have regarding issues of copyright, copying, and fair use, particularly as they impact library services. This page is informational in nature; questions about a specific situation should be addressed to the CUA Office of General Counsel.

 

Reserve Room Questions

Q. What is the process for putting copyrighted articles on electronic reserve in the library for student use?

A. A Central Reserve Request Form must accompany any articles to be placed on reserve. A reserve of an article is permissible under the fair use doctrine. However, if the article is placed on reserve for more than one semester, then permission of the copyright holder must be sought. The CUA bookstore can seek permission for the faculty member for repeat use, and the article will then be part of a coursepack for purchase at the bookstore.

Q. Is there a chart that will let me know what uses are permissible, and what uses are prohibited?

A. Yes, See the ARL Know your Copyrights Chart (pdf). This displays proposed uses and what you can do.

Q. When I request permission to use an article or chapter of a book for reserve use or for use in class, how can I clarify the duration of the permission?

A. The best process at CUA for seeking permission from a publisher is to go through the CUA bookstore. The article or book chapter permission would last for the semester in which permission is sought.

Q. If a faculty member brings materials to the library to be put on reserve, must the library require proof of copyright permission or can this be assumed by the library?

A. The Central Reserve Request Form used by the Mullen Library contains a waiver box that must be signed by faculty. If a librarian happens to notice that this is a repeat request, then the librarian may wish to point out to the faculty member that CUA guidelines do not allow the placement of an item on reserve for more than one semester. However, it is up to the individual faculty member to keep track of what is being submitted for reserve, and for complying with the CUA copyright guidelines.

Q. Articles or book chapters placed on electronic reserve must be submitted with a copyright form signed by the professor. What does this document legally entail? What are the obligations pertaining to this document for the professors, students, and library staff?

A. The obligation of the librarian is to make sure that for all items placed on electronic reserve, a form with the copyright waiver box must be signed by the professor. The same form may be used by the professor for several items, with the form indicating the number of copies of each item. When the faculty member signs the box on the form, the faculty member is indicating that he or she accepts full responsibility for compliance with all copyright law with respect to the items placed on reserve. This means that the faculty member has made a judgment that use of the item is fair use, is exempt from copyright law as the item is in the public domain, the article has already been licensed for use by the university, or permission has been received to copy the document. It is not the responsibility of the librarian accepting the reserve document to police the faculty member. However, the librarian should refuse to accept the form if the document has not been signed by the faculty member requesting the reserve. Proxy assistants may not sign the form on behalf of the faculty member. Students do not have any obligations with respect to this document.

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Miscellaneous Fair Use Questions

Q. Is there a requirement to obtain copyright permission for every quotation used in a dissertation which will be published?

A. Please see Copyright Law & Graduate Research: New Media, New Rights, and Your New Dissertation PDF by Kenneth Crews for answers to copyright in the context of dissertations.

Q. I am writing a dissertation and wish to quote portions of a paper submitted by a student in a class I helped teach at the university. Do I need to obtain permission from the student or this a fair use?

A. Permission should be obtained in this instance, as two issues are involved, copyright and the privacy of student education records. The federal law governing the release of student educational records (FERPA) requires written permission from a student before releasing information from a student education record. Since the dissertation will be published, this written permission is necessary to protect the student's right of privacy. In addition, the student owns the copyright in his or her paper, and permission should be sought for that reason as well. The doctrine of fair use is less likely to apply to an unpublished work, such as the student's paper, although there will be instances when use of an unpublished work would be considered a fair use. If you are quoting a small portion of the student's work, and there are no privacy issues, then fair use might apply. For example, the text is attributed to “a student” rather than a particular student.

Q. What does “spontaneous” mean in terms of fair use? What is the difference between spontaneity and fair use?

A. Spontaneity is not synonymous with fair use, nor does it define the entire realm of fair use. When Congress changed the copyright law in 1976, the “Agreement on Guidelines for Classroom Copying in Not for Profit Educational Institutions with Respect to Books and Periodicals” was made a part of the legislative history of the Copyright Act. This document sets forth a safe harbor for copying, and requires spontaneity in order for copyright to be fair use. Spontaneity is defined in the safe harbor guidelines as follows: “The copying is at the instance and inspiration of the individual instructor, and the inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission.” Copying may be a fair use even though it is not spontaneous.

Q. Please define clearly the limits of fair use.

A. The test for fair use involves a weighing of four factors, purpose of the use, nature of the work being copied, the amount of the work being used, and the effect of the use on the potential market for the work.

Q. Can you give an example of how to weigh the four factors?

A. This must be done on a case by case basis. For example, if you want to make a copy of an article to distribute in class, the purpose is for non-profit educational purposes, something favored by the law, and thus the first factor considered will weigh in favor of a finding of fair use. If the article is unpublished, it is less likely to be found to be a fair use, and thus the nature of the work to be copied would weigh against a fair use finding. If you plan to copy the whole article, then the amount used will weigh against a finding of fair use. There are instances when using the whole work will be a fair use. Finally, what will the proposed use do to the market for the article? A one-time use is not likely to have a great effect. Continued usage would weigh against a finding of fair use, as in that instance, the faculty copying is most likely depriving the copyright owner of profits. If a thriving market for permissions for this type of use exists, that will weigh heavily in favor of seeking permission.

Q. What are the factors that will weigh in favor of a fair use?

A. Factors that will weigh in favor of fair use are:

  • Copyright notice is placed on all materials on reserve
  • Access to course materials is password protected
  • Access is limited to faculty instructors for the course and students enrolled in the course
  • The smaller the class, the more likely use will be fair.
  • The copyright owner is not identifiable from the materials, and thus the work is an *orphan work*.
  • The copyright owner does not respond to a timely request for permission.
  • Students are instructed not to retain digital copies after the course is over.
  • Students have purchased core materials for the course, and the content on e-reserve is only supplemental.

* (These factors are from a list created by Madelyn Wessel (University of Virginia) and Deborah Gerhardt (University of North Carolina) and are used with permission.)

Q. Is it okay to distribute to my class an occasional magazine or newspaper article that I have come across? If I see an article in the morning paper and wish to circulate and discuss it, do I need to get permission to copy and distribute?

A. Distributing an occasional article in class is in most instances a fair use, and permission would not be required.

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Library Copying Questions

Q. How should the library define what is “reasonably available” for making replacement copies?

A. Section 108 of the copyright law states that it is permissible to make up to three copies (archival, master and use) of a published work that is damaged, deteriorating, lost, or stolen or if the existing format in which the work is stored has become obsolete, if the library has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price. This is a factual determination, and if you want to be on the safe side, the library might consider documenting what steps were taken in over what period of time in an attempt to find a replacement copy at a fair price. The library may wish to articulate a policy that will be followed by librarians in adhering to this provision of the law. The policy might address how many calls should be made or websites visited, where to check and what percent of the original list price would be considered fair.

Q. Can the library e-mail a digital copy to another library under section 108? Can the document be printed out when it is received?

A. Digital copies may be distributed (and printed by the receiving library) under §§ 108 (d) and (e) (interlibrary loan) and in accord with the CONTU rule of five. Note that Section 108 does not allow distribution of musical works, pictorial, graphic or sculptural works, or a motion picture or other audiovisual work, other than an audiovisual work dealing with news. If the digital work is licensed, make sure the licensing agreement allows for electronic distribution under § 108. The DMCA specifically disallows making available digital copies that have been made under the archiving and replacement provisions of §§ 108 (b) and (c).

Q. What is the CONTU “Rule of five”?

A. The CONTU guidelines on Interlibrary loan (not a part of the copyright law, but generally considered industry accepted guidelines) cap the amount of photocopying that the interlibrary loan office can request for the university community in any calendar year. The CONTU guidelines permit a borrowing library to receive in a calendar year five articles from the most recent five years of a specific journal or other periodical (the “rule of five”).

Q. What copyright notice must be placed on copies provided to library users or through interlibrary loan?

A. All copies made under Section 108 of the copyright law must include the copyright as it appears on the original. If no notice was included on the original, then the generic stamp should be used which indicates that the work may be protected by copyright.

Q. May the library make a copy of an entire sound recording at the request of a faculty member?

A. No. Section 108 does not allow the copying of an entire sound recording at patron request. However, Section 107 of the copyright law (fair use) would probably allow the copying of excerpts of different sound recordings for classroom use or to be placed on reserve.

Q. Is there any exemption which can be made for making copies more liberally for learning or physically disabled faculty or students?

A. Yes. Section 121 of the copyright law contains a provision that allows educational institutions to make copies in specialized formats (e.g. Braille, audio or digital text) for use by the blind or those with other disabilities. In addition, section 110 of the copyright law allows the transmission of the performance of a nondramatic literary or musical work or display to those whose disabilities prevent their attendance in classrooms, when the performance or display is part of the instructional activities of the university.

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Public Domain Questions

Q. How is the copyright expiration date determined on the translations of ancient (primary) texts?

A. The translator has a copyright in the translation. For an ancient text translated after 1977, the copyright in that particular translation would be life of the author (here the translator) plus seventy years. There may be translations of the same work that are already in the public domain. See the public domian chart to determine by date of work when the when the work will go into the public domain.

Q. Where can I find materials that I can use without the so many copyright considerations?

A. Recommended resources are the Creative Commons, that provides users with a wide variety of works (music, video, text) that in many instances can be used freely, and in some cases, only require acknowledgement of the author. See also Flickr, a photo sharing website.

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Miscellaneous Copyright Questions

Q. Please provide examples of non-compliance with copyright law.

A. One example would be downloading copyright protected music off the web. Another example would be making multiple copies of a math workbook and handing them out to students, rather than requiring the students to buy the workbook. A third would be buying the sheet music to a work, and downloading it to your web page for use by the students in your class.

Q. To what extent are faculty class notes, drafts of papers, etc. covered by the law?

A. Copyright arises the moment the original expression of the author becomes fixed in a tangible medium. Therefore faculty class notes, drafts of papers, etc, are copyrighted the moment they are written, even though the © may not be present.

Q. If a faculty member has published a paper and the publisher holds copyright, may the faculty member post the text of the paper to his or her website?

A. Not unless the faculty member reserved the right to do so in the contract with the publisher, or has received permission from the publisher to post the paper. See SPARC resources for authors. SPARC stands for the Scholarly Publishing and Academic Resources Coalition. SPARC was developed by the Association of Research Libraries to expand the dissemination of scholarly research and reduce financial pressure on libraries. This page includes a downloadable brochure on Author Rights.

Q. Could I incur personal liability for violating copyright laws?

A. Failure to follow university policy may mean the university will not defend the employee named in the court suit and personal liability may be incurred. See the CUA Copyright Policy and the related Copyright Guidelines.

Other Resources

See the Office of General Counsel web page, specifically Copyright Publications, Videos and Web Tutorials, and Resources, Forms and Checklists.

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