Copyright and Teaching

When considering incorporating any content into online instruction, ask yourself the following questions.

1. Is the work copyrighted? If not, no further analysis is needed. If yes or if you don’t know, read on.
2. Is the work covered by a license, such as those governing the library's electronic journals and databases?
3. Is there a specific provision in the copyright law that supports my proposed use without seeking prior permission from the copyright holder?
4. Does the fair use provision of the copyright law justify my proposed use?
5. Do I need permission from the copyright holder for the use I propose?

The purpose of copyright, as articulated in the United States Constitution, is "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” This principle forms the fundamental basis on which U.S. Copyright Law stands. Copyright grants to the author or originator the sole and exclusive privilege of creating multiple copies of literary or artistic productions and publishing and selling them. Copyright protection exists for original works fixed in any tangible medium of expression, including:

• literary works;
• musical works, including any accompanying words;
• dramatic works, including any accompanying music;
• pantomimes and choreographic work;
• pictorial, graphic, and sculpture work;
• motion pictures and other audiovisual works;
• sound recordings

Section 106 in Chapter 1 of the U.S. copyright law (17 U.S.C. §106) lists the six exclusive rights copyright owners have regarding their work. However, the next sixteen sections of Chapter 1 in the law set forth many exceptions and limitations on those rights. Four of these exceptions are commonly at play in education:

• Section 107 Fair Use - Fair use relies on a four-factor use analysis and was codified in the Copyright Act of 1976 (the current U.S. copyright law) and recognizes the public's interest in using copyrighted works in the educational process and to create new works.
• Section 108 Library Exception - Working in harmony with exceptions like fair use, the library exceptions ensure that libraries serving the public and scholarly research communities will have access to copyrighted works for their non-commercial activities.
• Section 110 (1) Exemptions of Certain Performances and Displays -This section exempts from infringement liability certain performances and displays of copyrighted works, typically in the context of educational settings and allows instructors to screen a film, perform or listen to a piece of music, perform or show a play, and display slides or other images.
• Section 110 (2) Exemptions of Certain Performances and Displays - This section which codifies the Technology Education and Copyright Harmonization Act of 2002 (TEACH Act). The TEACH Act is an important revision to the copyright law that ensures that new technology-based education (e.g., distance education using the Internet) may apply the principles and provisions of fair use in their curricula. Academic institutions must satisfy TEACH Act requirements in order to make its provisions available to their constituents. (Learn more about the TEACH Act in section 4.8)

Copyright protection arises automatically the moment an original work is fixed in a tangible medium of expression. It does not need to be registered, published, or have a copyright notice on it. Copyright has expired for works published in the US before 1923 and, therefore, they are in the public domain. For other works that may have entered the public domain, see Copyright Term and the Public Domain in the United States.

Copyright-free Options

When considering incorporating any content into online instruction, it may help to identify the type of material being used. You may already have the right to use it!

• Material in the public domain - textual and audio-visual works with expired or no copyright that are free to use and adapt without permission.
• Material used under Fair Use - copyrighted works can be used without permission under certain circumstances.
• Material licensed as open content (Creative Commons, Open Access, Open Education, etc.) - works created with the intent to be shared and used freely.
• Material from government websites - content is copyright free and available to use without seeking permission.
• Material from university-subscribed databases and ebook platforms.
• Material for which permission has already been granted from the rightsholder.

If the work in question is protected by copyright and is not subject to fair use or other legal exemptions, then you will need to seek permission from the copyright holder in order to make the reproduction or otherwise exercise one of the exclusive rights granted to the copyright owner. Whenever you are uncertain whether statutory exceptions apply to your specific situation you should either seek permission, or seek the advice of counsel before you proceed with a proposed use.

Sources to Consult When Seeking Copyright Owners

• Ownership information appearing on the face of or inside the item, particularly in the copyright notice
• Internet search engines
• Online telephone directories and address directories
• Print telephone directories when the owner’s geographical location is known
• Databases of trade associations or professional groups
• Archives or special collections containing the creators' works; print and electronic resources that identify archives
• Copyright Office records
• Other online databases listing or collecting creative content
• Individuals involved in creation of the work (even if they are not owners)
• Collective Rights Organizations Describes organizations and agencies that manage rights or help identify or locate copyright owners.