Copyright and Fair Use

What is Copyright?

• reproduce or copy the work;
• prepare new works that derive from the work;
• distribute copies of the work to the public by sale or
• other transfers of ownership, or by rental, lease, or lending;
• perform the work publicly; and
• display the work publicly

The protection is limited to the expression of ideas, but not the ideas themselves. To be eligible for copyright protection, a work must be original and fixed in a tangible medium and be one of the following eight categories of works:

• literary works, including computer software;
• musical works, including any accompanying words;
• dramatic works, including any accompanying music;
• pantomimes and choreographic works;
• pictorial, graphic, and sculptural works;
• motion pictures and other audiovisual works;
• sound recordings; and
• architectural works

The Copyright Act delineates some exceptions to the exclusive rights granted to owners of a work. However, these exceptions are limited. Some of these exceptions include fair use, reproduction by libraries and archives, transfer of possession or disposal of a particular lawfully-made copy or phone record, face-to-face performance or display or copyright work, secondary transmission, ephemeral (limited and temporary) recordings for transmission or archival purposes, distribution or display or articles containing work lawfully reproduced that are offered for sale or other distribution to the public compulsory licenses for making and distributing phone records, and use of certain works in connection with noncommercial broadcasting. The protection for copyrighted work lasts until the copyright term expires, unless the owner elects to put the work in the public domain. Currently, works created after 1978 are protected for the life of the author plus 70 years. For works for hire, anonymous works or pseudonymous works, protection lasts for 95 years from the date the work was published, or 120 years from creation of an unpublished work, whichever is shorter.

What is Fair Use?

One of the most important limitations or exceptions to the exclusive rights of copyright owners is called “fair use.” The Copyright Act does not define fair use. Rather, the law provides four factors to be considered when making the determination about whether a particular use is fair use. These four factors are:

• the purpose and character of the use, including whether such use is of a commercial nature of it for non-profit educational purposes
• the nature of the copyrighted work
• the amount and substantiality of the portion used in relation to the copy righted work as a whole
• the effect of the use upon the potential market for or value of the copyrighted work.

Fair use is determined on a case-by-case basis using these four factors. Over the years, attempts were made to provide more specific guidance on fair use. For instance, in 1966 a consortium of professional organizations, including representatives from publishers and higher education institutions, formed an Ad Hoc Committee on Copyright Law Revision to begin looking at developing specific guidance on fair use for educators. The committee reached a permanent agreement by 1969 on photocopying for classroom use and adopted the Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions (often referred to as the Classroom Guidelines) in 1976. The Classroom Guidelines had a broad acceptance among higher education institutions and became the foundation of many institutions’ policies for classroom copying. In 1976 Congress appointed the National Commission on New Technological Uses of Copyrighted Works (CONTU) to establish minimum standard of educational fair use under the 1976 Copyright Act. In 1994 a Conference on Fair Use (CONFU) was held to develop guidelines for fair use in the electronic environment. While some higher education institutions have elected to adopt some or parts of these guidelines as their institutional policies, there are not a substitute for the case-by-case analysis of the fair use factors in the Copyright Act.

See related docs at right and also Policy: Copyright - Higher Education Opportunity Act (HEOA) Guidelines in the Administrative Services knowledge base.

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