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Copyright Questions and Answers
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 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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