Copyright in the Digital
Age: Guidance for Faculty
I. COPYRIGHT BASICS
What is copyright?
A bundle of legal rights regarding an original work,
including: reproduction, distribution, performance, adaptation, use in
derivative works, and display. In other words - copyright is the right to
CONTROL how the work is used.
What is considered "reproduction" for purposes of
According to the U.S. Copyright Office, reproduction can
take two different forms:
- The making of copies: by photocopying,
making microform reproductions, videotaping, or any other method of duplicating
visually-perceptible material and
- The making of phonorecords: by duplicating
sound recordings, taping off the air, or any other method of recapturing
How long does copyright protection last?
Generally, for the copyright owner's lifetime PLUS
seventy years...but that general rule has lots of exceptions for works
published during the effective dates of several different copyright laws, so it
is best to check with a librarian. You may also consult the following guidance
posted by the Cornell Copyright Information Center:
What can be protected by copyright?
Original works of authorship fixed in a tangible medium
of expression. Not just an idea, but one that has been converted into some
tangible form. To be protected by copyright, the material must be an original
work with some degree of creativity. For example, phone book listings are NOT
protected, but phone book art, design, or a collage using phone book pages
would be protected. Copyright protects not only literary works, but also
materials that are artistic, architectural, sculptural, musical, dramatic,
Q: How does a person "copyright" a work?
Copyright is not a verb - it just happens! If you have
created a work, it is copyrighted and has copyright protections. No longer does
copyright require notice, a copyright symbol, publication, or registration with
the U.S. Copyright Office. However, for works published prior to March 1989,
some of those conditions may affect the length of your copyright
II. DETERMINING IF A WORK IS PROTECTED BY
If I find something online can I assume there's no
No. Because copyright does not require registration or
any special marks like the © and since adding a work to a web page
qualifies as "fixation" for copyright protection, most work is under
What steps should I take before using materials I did
First, determine whether the materials are
UNPROTECTED-meaning they are NOT subject to a copyright - and are in the public
domain. Resources for determining whether a work is in the public domain are
Is there a rule of thumb for determining whether
material is protected by copyright?
If a work was created BEFORE 1923, it is likely to be in
the public domain. However, copyright does NOT require: notice or a copyright
symbol; registration with the U.S. Copyright Office; or publication. Just
because those indicators are not present does NOT mean the material is
What online resources are available to determine if
materials are protected by copyright?
The U.S. Copyright office has a free, online search
catalog for all works and documents recorded with the U.S. Copyright Office
since January 1, 1978. It also provides guidance for locating information
records for works and documents in existence prior to January 1, 1978. Access
is available at: http://www.copyright.gov/records/.
III. OPTIONS FOR LAWFULLY USING COPYRIGHTED
If the material I want to use is protected by
copyright, how can I determine if I can use it in my project or course?
Probably the easiest thing to do is to find out whether
a Creative Commons license exists for the material you want to use. Creative
Commons is an organization that allows creators to license use of their
materials for various purposes with attribution. Access is available at
Commons also offers a resource for finding licensed material at:
Note: This is NOT a search engine, but it offers easy access to search services
provided by other independent organizations.
What are Creative Commons licenses?
There are six core Creative Commons licenses to choose
from; these vary in the amount of freedom users have with respect to a work.
Details are provided below and can also be reviewed at:
The licenses can be applied to any work that is covered by copyright law
including books, scholarly articles, movies, musical arrangements, and
The six core Creative Commons licenses vary in
openness/restrictiveness. They are (in order of increasing
restrictiveness):Attribution - "CC BY"
This license lets others distribute, remix, tweak, and
build upon a work, even commercially, as long as they credit the original
author for the original creation. This is the most accommodating of licenses
offered, in terms of what others can do with a work licensed under
- Attribution - "CC BY"
- This license lets others distribute, remix,
tweak, and build upon a work, even commercially, as long as they credit the
original author for the original creation. This is the most accommodating of
licenses offered, in terms of what others can do with a work licensed under
- Attribution Share Alike - "CC BY-SA"
- This license lets others remix, tweak, and build
upon a work even for commercial reasons, as long as they credit the original
author and license their new creations under the identical terms. This license
is often compared to open source software licenses. All new works based on a
work licensed this way will carry the same license, so any derivatives will
also allow commercial use.
- Attribution-Non-Commercial - "CC BY-NC"
- This license lets others remix, tweak, and build
upon a work non-commercially, and although their new works must also
acknowledge the original author and be non-commercial, they don't have to
license their derivative works on the same terms.
- Attribution Non-Commercial Share Alike - "CC
- This license lets others remix, tweak, and build
upon a work non-commercially, as long as they credit the original author and
license their new creations under the identical terms. Others can download and
redistribute this work just like the by-nc-nd license, but they can also
translate, make remixes, and produce new stories based on the work. All new
work based on the original will carry the same license, so any derivatives will
also be non-commercial in nature.
- Attribution No Derivatives - "CC BY-ND"
- This license allows for redistribution,
commercial and non-commercial, as long as it is passed along unchanged and in
whole, with credit to the original author.
- Attribution Non-Commercial No-Derivatives - "CC
- This license is the most restrictive of the six
main licenses, allowing redistribution. This license is often called the "free
advertising" license because it allows others to download works and share them
with others as long as they mention the original author and link back to them,
but they can't change them in any way or use them commercially.
How do I properly attribute material offered under a
Creative Commons license?
All CC licenses require users to give proper attribution
to the creator of licensed material, unless the creator has waived that
requirement, not supplied a name, or asked that his/her name be removed. Users
must also retain the copyright notice, a link to the license and a license
notice. For more information visit:
The material I want to use is protected and is not made
available through a Creative Commons license. Do I have other options?
Yes. You can always contact the copyright owner and seek
permission directly. Otherwise, the doctrine of "fair use" may apply to allow
your use without permission or (for in-class showings/presentations) there may
be a specific exception that will apply. For public performance rights to show
movies outside of class, the University may have a license to do so. See the
Questions and Answers that follow.
What is Fair Use?
Generally speaking, fair use is any copying of
copyrighted material done for a limited and "transformative" purpose, such as
to comment upon, use for a limited classroom teaching purpose, criticize, or
parody a copyrighted work. Such uses can be made without permission from the
copyright owner. If your use qualifies as a fair use, then it would not be
considered an illegal infringement of copyright.
How do I know if what I'm doing qualifies as Fair
Unfortunately, the only way to get a definite answer on
whether a particular use is a fair use is to have it resolved by a judge.
Judges use four factors to resolve fair use disputes, as discussed in detail
below. It's important to understand that these factors are only guidelines that
courts are free to adapt to particular situations on a case-by-case basis.
- The PURPOSE and character of your use
- Favors Fair Use: Teaching; research; scholarship;
nonprofit education institution
- Opposes Fair Use: Denying credit to original
author; commercial activity; profiting from use; entertainment; bad-faith
- The NATURE of the copyrighted work
- Favors Fair Use: Published works; important to
favored educational objectives
- Opposes Fair Use: Unpublished work; highly
creative work (art, music, novel, film, play)
- The AMOUNT and substantiality of the portion taken,
- Favors Fair Use: Small quantity; amount is
appropriate for favored educational purpose
- Opposes Fair Use: Large portion or whole work
used; portion used is central to or "heart of" the work
- The EFFECT of the use upon the potential market.
- Favors Fair Use: User owns lawfully
purchased/acquired copy of original work; one of few copies made; no
significant effect on the market or potential market for copyrighted work; no
similar product marketed by the copyrighted holder; lack of licensing
mechanism; lack of licensing mechanism
- Opposes Fair Use: Numerous copies made;
accessible on the Web or in other public forum; repeated or long-term use;
affordable permission available for using work
Does the "fair use" doctrine allow me to use
copyrighted material in an unrestricted manner so long as the use is for an
No. An educational use of a copyrighted work does not
necessarily fall under fair use. You need to make a good faith assessment in
applying the four factors set out above to your use of the copyrighted
material. Ask yourself if an objective, reasonable person would consider your
use to qualify as fair use. Here are a couple helpful tools:
Is there reduced liability for academic fair use if my
use is later found to be infringing?
Yes. Congress added a provision to encourage teachers
and librarians to use fair use where it reasonably can apply. Under federal
copyright law, "'statutory damages,' which are the largest liability in most
infringement cases, must be remitted to $0 if the person found to be infringing
is BOTH an employee of a non-profit educational institution acting within the
scope of his or her employment AND had a good faith belief that the use they
made of the copyrighted material was for fair use. Good to know, but this
should NOT be considered blanket permission to claim fair use where it doesn't
What is the "in-class" exception for using materials
protected by copyright?
Copyright law places a high value on educational uses.
The Classroom Use Exemption (17 U.S.C. §110(1)) only applies in very
limited situations, but where it does apply, it gives some pretty clear rights.
To qualify for this exemption, you must:
- Be in a classroom (‘or similar place devoted to
- Be there in person, engaged in face-to-face teaching
- Be at a nonprofit educational institution.
For more information visit:
What activities qualify for the "in class" use
exception to copyright?
Use of film and video is permitted in an educational
institution so long as all of the following conditions are met:
- The film must be shown as part of the instructional
- The film must be shown by students, instructors, or
guest lecturers, and can only be shown to students and educators.
- The film must be shown either in a classroom or other
school location devoted to instruction.
- The film must be shown either in a face-to-face
setting or where students and teacher(s) are in the same building or general
- The film shown must be a legitimate copy, with the
copyright notice included.
- Films or videos may not be used for entertainment or
For example, the exception would NOT apply if: a
professor planned to show a film in the Stackhouse theater, and said, "I'm
going to invite my class AND the general public." Inviting the public takes
this use outside the protection of the "in class" exception. The exception
WOULD apply, however, if a professor planned to invite his class to his home to
watch the film. Although literally being in a classroom is NOT required, the
use must be for a legitimate educational exercise to qualify for the "in class"
For more information, visit:
If I post something behind password protection -
requiring a MUSM login - does that cover all the copyright issues?
No. Password protection is important. It substantially
improves a fair use claim and you must use it to qualify for the TEACH Act
exception (distance education). But password protection alone does not solve
all copyright issues. You should still make a fair use analysis or seek
permission to use.
The Skelton Medical Libraries have worked with
publishers/vendors of our subscribed online content to add language to our
license agreements to allow use of our subscribed online content in our content
management system, Canvas.
If I own a copy of a movie or had it checked out from
the library, am I permitted to show the entire length of the movie to my
students in my classroom?
Yes, you are permitted to show an entire movie without
first obtaining permission from the copyright holder if it satisfies the "in
class" exception outlined above. See 17 U.S.C. § 110(1).
If I want to show a movie open to the public, outside
of a class, what do I need to do?
You may need to seek permission or to purchase the
public performance rights
Am I permitted to digitize an entire movie contained in
a DVD that I have legally purchased, upload it to the University's server, and
allow my students to stream it on their personal computer as a part of my
class, so long as I restrict access of the digitized copy to the students
currently enrolled in my class?
No. You are not permitted to upload the entire length of
a movie and allow students to stream it on their personal computer. However,
you are permitted to stream:
- performances of non-dramatic literary or musical
works, excluding operas, music videos, and musicals, in their entirety,
- limited portions of any other work (i.e. streaming
short clips of a movie is permissible). See 17 U.S.C. § 110(2); 37 C.F.R.
Can I show a YouTube video to my class?
Yes. Using YouTube to demonstrate pedagogical points is
fine; however, do not use YouTube videos that contain infringing content just
as you would not use any other type of infringing content. YouTube is
particularly rife with such material despite YouTube's best efforts. The best
way to handle a YouTube video is to link to it. Using YouTube's embedded code
for linking is also fine.
What are some best practices with respect to using
- Use thumbnails or low-resolution images
- Give attribution to the source or creator of the
- Limit access to the image by requiring viewers to log
in with W&L credentials
- Make a good faith effort to comply with creator's
Am I allowed to link to something I find online?
Unless you have reason to know that a particular page is
infringing you are generally free to link to anything you find online without
worrying about copyright.
Can I make photocopies of an article for my students
for classroom use?
Yes. It is permissible to make photocopies for one-time
distribution in class, subject to the following limitations:
- Make no more than one copy per student;
- Include copyright notice on each copy;
- Not charge students beyond actual cost of
- Comply with the tests for 'brevity,' 'spontaneity,'
and 'cumulative effect.'
Under what circumstances must I obtain permission from
the copyright holder before photocopying an article for classroom use?
If you intend to make photocopies for a course pack and
repetitive copying (i.e., copying of same material from term to term), you must
obtain prior permission from the copyright holder. Works that are considered,
"consumable" (workbooks, exercises, tests, answer sheets, etc.) must not be
photocopied unless you have obtained permission from the copyright owner. The
Skelton Medical Libraries have worked with publishers/vendors to add language
in the license agreements so that online resources subscribed by tke Skelton
Medical Libraries may be used in course packs.
May I record a copyrighted television program in its
entirety and show it to my class?
Yes, with restrictions. Congress has created a special
exception about this practice, for nonprofit educational institutions. Off-air
recordings may be used by individual teachers in the course of relevant
teaching activities, and repeated once only when instructional reinforcement is
necessary, in classrooms and similar places devoted to instruction, during the
first ten school days after the program was recorded. The recording must
contain a notice of copyright. It may not be retained longer than 45 days. For
more information visit:
If I own a legally obtained copy of a movie on VHS or
some other outdated analog format and would like to digitize that copy for the
library reserve, am I permitted to do so?
It is permissible to digitize a copy of a VHS movie ONLY
IF there is no digital version available for purchase, or the digital version
that is available is subject to technological protection measures. However, the
digitized copy CANNOT be made available to students or other public members
outside the premises of the library. Therefore, even after digitizing the
movie, students must physically be in the library to watch the movie. See 17
U.S.C. §§ 108 & 112(f)(2).
Use of the electronic resources provided to Mercer
University Libraries is governed by license agreements. Each publisher's
license agreement outlines specific terms and conditions under which the
resources may be used. Although each license is unique, common restrictions
found in licenses for electronic resources include the following:
- The content may be used only for non-commercial,
educational or research purposes.
- Users may print or electronically save a single copy
of limited portions of a resource for individual and collaborative scholarship,
however, systematic downloading and/or redistribution to non-subscribers is
- Individuals who are not affiliated with the
University may not use the content, or may use the content only when physically
present in the Libraries. Affiliates are currently enrolled students, faculty
and staff of Mercer. Faculty include preceptors who have faculty appointments.
Alumni are not included at this time.
- Authorized Users may use a reasonable portion of the
Licensed Materials in the preparation of course packs, or other educational
materials, including print-outs, e-reserves, Canvas and access-controlled
websites, with all rights notices duly presented.
Adapted from: Washingtom and Lee University,
Copyright Interest Group, Copyright in the Digital Age: Guidance for W&L