Copyright and Fair Use Guidelines

Manchester Community College encourages its faculty, staff and students to use multimedia and text resources to enhance teaching and learning while abiding by copyright and intellectual property law, including the U.S. Copyright Act, the Digital Millennium Copyright Act, and the TEACH Act.

Faculty and Staff Copyright and Fair Use Guidelines

Too much? A concise guide is also available with videos and links to other carefully selected copyright websites.

Too little? A comprehensive guide, including topics such as conducting a Fair Use analysis, using copyright-free and licensed materials, along with specific use scenarios, are available on the CSCU Copyright Guide.

Introduction

Copyright and fair use are complex legal issues. It is impossible to create guidelines that will answer every question. Each use of copyrighted material must be evaluated to determine fair use.

The intent of these web pages is to provide information to help faculty make informed choices when selecting materials protected by copyrights for use in a classroom, whether traditional, web-enhanced, hybrid, or online.

Below are highlighted important portions of copyright law, checklists that faculty and staff can use when deciding how to use copyrighted material, and resources for more detailed information.

www.copyright.gov

Copyright protects “original works of authorship, including literary dramatic, musical, artistic, and certain other intellectual works fixed in any tangible means of expression, now known or later developed, from which they can be perceived, reproduced or otherwise communicated directly or with the aid of a machine or device.” (Excerpt from the U. S. Copyright Act)

Copyright:

  • Gives certain exclusive rights to “authors” (who can sell or license individual rights separately) for a limited period of time
  • Protects published and unpublished works
  • Balances the rights of authors and the interests of those who seek to use existing works to build or create new works

Use of any of the following without permission:

  • Reproduction
  • Republication
  • Redistribution
  • Public performance
  • Public display

The reproduction, replication, and redistribution of a work are among the exclusive rights of the copyright holder.

If infringement is found, penalties may include

  • Court-ordered compensation (damages)
  • Injunctions against future infringements
  • In extreme cases, criminal liability
  • Literature
  • Music
  • Drama
  • Pantomime and dance
  • Pictures, graphics, sculpture
  • Films
  • Sound recordings
  • Architecture
  • Software
  • Works that are not fixed
  • Titles, names, slogans
  • Ideas, facts, data
  • Listings of ingredients or contents
  • Natural or self-evident facts
  • Works of the United States government
  • Works for which copyright has expired
  • Works dedicated to the public domain

Works enter the public domain when:

  • Copyright has lapsed because the work was published:
    • Before 1926 (In 2021)
    • Between 1926 and 1963, and published with notice but not renewed
    • Between 1926 and 1977, and published without notice
    • Between 1978 and March 1, 1989 and published without notice and not registered within 5 years
    • The work was gifted to the public domain through a Creative Commons CC0 license or other means.
  • The work was produced by the United States government (when used in the U.S.)
  • From moment of creation until 70 years after the author’s death
  • Works for hire (or anonymous or pseudonymous works):
    • 95 years from publication
    • 120 years from creation (whichever is shorter)

Examples of works in the public domain:

  • The Adventures of Huckleberry Finn (the book not the stage play)
  • The Wonderful Wizard of Oz (the book, not the motion picture)
  • U. S. Constitution

Fair Use Guidelines

Fair Use Website: www.copyright.gov/fls/fl102.html

Fair Use in the Classroom

  • The Copyright Act does not specify what qualifies
  • Analyze on a case-by-case basis
  • When in doubt, obtain permission

What is fair use?

  • Balances rights of owners with needs of users
  • Recognizes that certain uses do not requires permission
  • Defense to a claim of copyright infringement

Common examples of fair use

  • Personal Use
  • Quotations in reviews
  • Criticism or parodies
  • Clips in news reporting
  • Spontaneous classroom use
  • Scholarship or research

Fair Use Factors and Summary Chart

For this factor… It is more likely to be fair use if it is… It is less likely to be fair use it if is…
Purpose (Is it for commercial or non-profit educational purposes?)
  • Not for money
  • An educational use
  • A transformation rather than a mere reproduction of the original work
  • For money
  • Not an educational use
  • A transformation but a reproduction of the original work
Nature (Is it creative or factual?)
  • A more factual work
  • A more creative and/or original work
Amount (What is the proportion used in relation to the entire work?)
  • Only small portions relative to the whole work that are used
  • Directly relevant to the educational purpose
  • Substantial portions or the entirety of the work that are used
  • The heart of the work
  • Not directly relevant to educational objectives
Market (What will the effect be on the value of the work?) Of little economic impact Of direct economic impact on an existing or potential market for the work

Classroom Use Guidelines

Section 110 of the U.S. Copyright Law offers broad exemptions for classroom teaching in traditional, face-to-face settings and allows instructors and students to perform or display any copyrighted work within the confines of the classroom. Here is a listing of some generally accepted classroom uses.

  • Single copying for teachers
  • Multiple copies for classroom use
  • Display of audio visual works (e.g., feature films, sound recordings)
  • Performance of copyrighted works (e.g., plays, songs, etc.)

Fair Use Checklist

The following Checklist for Fair Use is based on a document created by Professor Kenneth Crews and the staff of the Copyright Management Centers at Indiana University-Purdue University Indianapolis. Based on the four factors of fair use – purpose, nature, amount and effect – the checklist was created to help educators, librarians and others evaluate content uses to determine if fair use applies. This tool provides an important means for recording your fair use analysis, which is critical to establishing “reasonable and good-faith” attempts to apply fair use. For more information, see the Indiana University-Purdue University Indianapolis Fair Use Checklist.

Purpose

Favoring Fair Use Opposing Fair Use
  • Directly related to classroom use
  • Research
  • Scholarship
  • Nonprofit educational institution
  • Criticism
  • Comment
  • News reporting
  • Transformative or productive use (changes the work for new utility)
  • Restricted access (to students or other appropriate group)
  • Parody
  • Commercial Activity
  • Profiting from the use
  • Entertainment
  • Bad-faith behavior
  • Denying credit to original author

Nature

Favoring Fair Use Opposing Fair Use
  • Published work
  • Factual or nonfiction based
  • Important to favored educational objective
  • Unpublished work
  • Highly creative work (art, music, novels, films, plays)
    Fiction

Amount

Favoring Fair Use Opposing Fair Use
  • Small quantity
  • Portion used is not central or significant
  • Portion used is central to work or significant to entire work “heart of the work”
  • Large portion or whole work used
  • Amount is appropriate for favored educational purpose

Effect

Favoring Fair Use Opposing Fair Use
  • User owns lawfully acquired or purchased copy
  • One or few copies made
  • No significant effect on the market or potential market for copyrighted work
  • No similar product marketed by the copyright holder work
  • Could replace sale of copyrighted work of original work
  • Impairs market or potential market for Copyrighted work or derivative
  • Available licensing mechanism for use of the copyrighted work
  • Permission available for using work copyright holder work
  • Numerous copies made
  • You made it accessible on Web or in other public forum
  • Repeated or long-term use

Digital Media and Online

What is the TEACH Act?

In 2002, Congress enacted the Technology, Education and Copyright Harmonization Act — or TEACH Act — that expanded the scope of the copyright exception applicable to distance education transmissions (e.g., over the air or over the Internet), as well as to the use of online materials in the context of face-to-face teaching.

The TEACH Act revises Section 110(2) in an effort to permit the use of copyrighted materials in real time and asynchronous digital distance education on much the same terms as in live face-to-face teaching. The exception applies to any copyrighted work other than a work produced or marketed primarily for performance or display as part of “mediated instructional activities” using digital networking (i.e., materials expressly created for use during online distance education classes), subject to certain limitations.

Please note that that if fair use permits a particular use of copyrighted materials, it is not necessary to consider the TEACH Act or vice versa.

The TEACH Act applies to:

  • Non-profit, accredited educational institution and government bodies
  • Mediated, instructional activities
  • Students enrolled in a specific class, or government employees as part of official duties or employment
  • “Live” or asynchronous class sessions
  • The use of “reasonable and limited portions”

The TEACH Act does not apply to:

  • Textbook materials
  • Materials “typically purchased or acquired by students”
  • Works developed specifically of online uses

The TEACH Act requires

  • Technological measure to prevent retention of works after a course has ended and prevention of further distribution of works
  • Dissemination of the institution’s copyright policy to students, faculty and staff
  • Notification of students that materials used in connection with their courses may be subject to copyright protection

The TEACH Act allows:

  • Performance of non-dramatic literary or musical works and/or reasonable portions of any other work
  • Display of any work in an amount that is typical in a classroom situation

What TEACH Act does not allow:

  • Duplication of electronic reserves, coursepacks, (electronic or paper)
  • Duplication of textbooks or other digital content provided under license from the author, publisher, aggregator or other entity
  • Conversion of materials from analog to digital formats (except in certain circumstances)

www.copyright.gov/legislation/dmca.pdf

  • Amended 1976 Copyright Act by including “digital” material
  • Disallows tampering with encryption systems designed to prevent copying
  • Effects on the sharing of files via the internet 

Obtaining permission for use of copyrighted material

If the use of copyrighted material exceeds fair use, a faculty or staff member must obtain written permission from the copyright holder. If you have questions regarding the holder of the copyright, the Copyright Clearance Center can assist in identifying the holder. There is a fee for this service. Authorization for use of this service should be obtained from your department head.

If there is a cost associated with the use of the copyrighted material, authorization for payment must be obtained in advance from the department head or division director.

Proof of authorization of use or compliance with fair use must be provided to college staff (i.e., Media, ETDL, Library, Webmaster) prior to requests for duplication or online dissemination. A copy of this authorization should be maintained by the faculty or staff member’s department.

MCC faculty and staff should contact any of the individuals below with questions related to copyright and fair use guidelines.

Debbie Herman, Director of Library and Educational Technology, 860-512-2872
Tim Boto, Assistant Director of Educational Technology, 860-512-2852

Source(s): Three Rivers Community College Fair Use Policy
Copyright Clearance Center: Copyright Education Series Foundations Workbook 2006.

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