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Practical Copyright   Tags: learn, savvy_researcher  

This workshop focuses on the basics of copyright law and some guidelines for how scholars can stay within the law using the four factors of Fair Use.
Last Updated: Oct 4, 2013 URL: Print Guide RSS UpdatesEmail Alerts
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I am a librarian and not a lawyer, so I cannot give you legal advice. Even if I were a lawyer, I would not be able to give advice to people who are not clients. Although I will not give you legal advice, I will try to provide you with information about the law and the issues involved.

Purpose of Copyright (Slide 2):

  • This is the sentence in the Constitution that deals with copyright.
  • Economic incentive to create by giving authors exclusive control over their works
  • Limited time imposed so the public may benefit from the work
  • To protect authors, not publishers
  • To protect creative expressions

What Is Protected? (Slide 3):

  • Original work
  • Creative work
  • Work fixed in a tangible medium of expression
    • Protection is immediate
    • Registration no longer required

What Is Not Protected? (Slide 4):

  • Facts, ideas, procedures, etc. can be protected by other intellectual property laws:  patents, trademarks, etc.
  • Writing something creative and original about these (e.g., a poem about the theory of relativity) would be protected.

Exclusive Rights Conferred (Slide 5):

  • These rights are granted to the author as soon as fixation occurs.
  • They are divisible and can be unbundled in exclusive (“transfers”) or nonexclusive license (“permissions”) agreements.

Duration of Terms (Slide 6):

  • In reality, this is a lot more complex.
  • These are the terms for works created after 1978. Those are subject to the Copyright Act or 1976 (17 U.S. Code) and the 1998 Sonny Bono Copyright Term Extension Act.
  • There is also the 1909 Copyright Act to consider.
  • Challenges:
    • 3 generations of protection (not terribly “limited”, as the clause states)
    • Coverage is automatic, so it is sometimes difficult to determine owner and status (orphan works).
    • Who is being incentivized? The author is often not the rights holder.

The Public Domain (Slide 7):

  • Clarify what can definitely be freely used.
  • Discuss Lawrence Lessig and CC.

Exceptions (Slide 8):

  • Fair Use will be covered in detail.
  • Section 108
    • Copying materials for replacement and back-up
    • Copying for course reserves
    • Interlibrary loan
    • Limited liability
  • Section 110
    • 110 (1) – “performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution” is not an infringement (but material must be lawfully obtained).
    • 110 (2) –TEACH act
      • Means to bring face-to-face exception to distance education
      • Note the difference between the broad 110 (1) and detailed 110 (2)
      • An example of overly complex, regulatory copyright legislation—a trend (e.g., DMCA and Section 108 Study)

Fair Use (Slides 9-14):

“The fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use, scholarship, or research, is not an infringement of copyright."

  • Note that educational uses are explicitly privileged.
  • Whether a use is fair can only be determined in a court of law.
  • 4 factors must be considered to determine whether a use is fair and no single factor is to be favored (but the courts have lately been weighing 1 and 4 the most).
    • Purpose and Character of the use
      • Educational uses, while favored, can be commercial, which is not favored (textbooks, for profit universities).
      • Transformativeness – Adds new content or meaning to the work (e.g., parody or criticism). This has become a big issue since the 90’s and has made this factor very important.
    • Nature of the copyrighted work
      • Factual works are favored.
      • Published works are favored. It is the author’s right to decide when to publish.
    • Amount and substantiality
      • There is no defined portion.
      • The Classroom Guidelines in a House Report that was incorporated into the 1976 try to set some limits, but they are impractical and outdated (Georgia State case).
    • Effect of use on potential market or value of the work
      • This has been the factor that has traditionally been discussed most by the courts, and even the Supreme Court has called it the most important factor.
      • It also shows how fair use can shrink if it is not used. Licensing fees are now considered a “market”.
  • All of this can be made irrelevant by contractual obligations in licensing agreements with publishers.

Getting Permission (Slide 15):

  • Contacting the rights holder directly
    • Draft your permissions letter and include as much information as possible on the planned use: who, what, when, where, why, how, how much).
    • The problem of orphan works.
  • Contact a collective rights organization
    • Copyright Clearance Center
  • In either case, be sure to get a signed permissions agreement.
  • Not getting a response does not imply consent.

Conclusion (Slide 16-17):

  • Where to find help
  • Other resources

Subject Guide

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Mark Wardecker, Acting Classics Librarian
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