What is and isn't protected by copyright

Copyright protection is provided by the laws of the United States to the authors of "original works of authorship," including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works and includes widely available material such as that posted on the Web.

The following provides a brief introduction to the basic principles of copyright and what is and is not protected and for how long. More detailed information can be found at the United States Copyright Office.

Works that may be copyrighted

Copyright protection subsists in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. No filing, registration or copyright notice (©) is required in order to have a copyright in an original work of authorship. The copyright exists automatically from the moment the original work is "fixed in a tangible medium of expression."

Works of authorship include the following categories:

1. Literary Works
2. Musical Works, including any accompanying words
3. Dramatic Works, including any accompanying music
4. Pantomimes and Choreographic Works
5. Pictorial, Graphic, and Sculptural Works
6. Motion Pictures and other Audiovisual Works
7. Sound Recordings
8. Architectural Works

Works that may not be copyrighted

Copyright protection does not cover the following:

1. Ideas or concepts
2. Procedures
3. Processes or systems
4. Principles or discoveries
5. Works not fixed in a tangible form
6. Titles, names, short phrases, slogans (these may be protected by trademark law)
7. Lists showing no originality
8. Factual information
9. U.S. government works
10. Works in the public domain

Exclusive rights of copyright owners

Copyright owners enjoy the exclusive right to:

1. Reproduce the copyrighted work in copies or phonorecords
2. Prepare derivative works based upon the copyrighted work
3. Distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending
4. In the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly
5. In the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly
6. In the case of sound records, to perform the copyrighted work publicly by means of a digital audio transmission.

Primary limits on the exclusive rights of copyright owners

1. Fair Use - The "fair use" limitation on the exclusive rights of copyright owners provides a window of limited allowable uses of copyrighted material. There is no simple test to determine if a use of a copyrighted work is allowable under fair use. For further information see the Fair Use section below.
2. Rights granted to Libraries under Section 108 of the Copyright Act:
   • archiving lost, stolen, damaged or deteriorating works,
   • making copies for library patrons
   • making copies for other libraries' patrons (interlibrary loan)
3. The "first sale" doctrine permits the owner of a lawfully obtained copy of a copyrighted work (e.g., a book purchased at a book store) to dispose of that copy without permission of the copyright holder.
4. Performances and displays by instructors or pupils during face-to-face teaching activities at a nonprofit educational institution when in the case of a motion picture or other audiovisual work, the performance or the display of individual images is given by means of a copy that was lawfully made. This exception does not permit copying and/or distribution of the work; only displays or performances during class time.

Public Domain and Length of Copyright Term

Copyright is only granted to a work for a limited amount of time, after which it passes into the public domain and can be freely used and copied. The length of term of copyright depends on a variety of factors including what laws were in effect when the work was published and the country of publication.

Copyright Term and the Public Domain in the United States provides an easy reference chart for determining whether something is still under copyright or not.

It is important to note that the fact that a work is freely available on the Internet has absolutely no bearing on whether it is in the public domain for copyright purposes. In many cases works available on the Internet are protected by copyright, and a fair use analysis is required to determine whether your proposed use is permissible. In some cases works available on the Internet are made available there without the copyright owner's permission.

Fair Use and Other Educational Uses

Using copyrighted material in your teaching

• Fair Use - the basics of "fair use"
• Rules of Thumb - help for determining if your use is "fair use"
• Educational Guidelines - additional guidelines for thinking about "fair use"

Fair Use

Copyright law provides for the principle, commonly called "fair use" that the reproduction of copyright works for certain limited, educational purposes, does not constitute copyright infringement. The Copyright Act establishes a four factor test, the "fair use test," to use to determine whether a use of a copyrighted work is fair use that does not require the permission of the copyright owner. The fair use test is highly fact specific, and much can turn on seemingly insignificant variations on the proposed use.

To determine whether a proposed use is a fair use, you must consider the following four factors, on which we elaborate more below:

1. Purpose: The purpose and character of the use, including whether such use is of a commercial nature, or is for nonprofit education purposes.
2. Nature: The nature of the copyrighted work.
3. Amount: The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
4. Effect: The effect of the use upon the potential market for, or value of, the copyrighted work.

To establish the strongest basis for fair use, consider and apply the four factors along the lines of these suggestions. You may also want to use the Fair Use Checklist to help evaluate the nature of your use.

1. Purpose of the Use
   • Materials should be used in class only for the purpose of serving the needs of specified educational programs.
   • Students should not be charged a fee specifically or directly for the materials.
2. Nature of the Work
   • Only those portions of the work relevant to the educational objectives of the course should be used in the classroom.
   • The law of fair use applies more narrowly to highly creative works; accordingly, avoid substantial excerpts from novels, short stories, poetry, modern art images, and other such materials.
   • Instructors should not distribute copies of "consumable" materials such as test forms and workbook pages that are meant to be used and repurchased.
3. Amount of the Work
   • Materials used in the classroom will generally be limited to brief works or brief excerpts from longer works. Examples: a single chapter from a book, an individual article from a journal, and individual news articles.
   • The amount of the work used should be related directly to the educational objectives of the course.
4. Effect of the Use on the Market for the Original
   • The instructor should consider whether the copying harms the market or sale of the copyrighted material.
   • Materials used in the class should include a citation to the original source of publication and a form of a copyright notice.
   • Instructor should consider whether materials are reasonably available and affordable for students to purchase - whether as a book, course pack, or other format.

Rules of Thumb

The University of Chicago has not adopted official guidelines for determining fair use. However, the following web sites offer rules of thumb and other tools to assist faculty, staff and students in determining whether a use is a fair use in a variety of educational contexts.

Stanford University: Measuring Fair Use
University of Washington: Guidelines for Fair Use in Education
ALA Fair Use EVALUATOR

If your proposed use is not addressed by these guidelines, you will need to analyze the use under the four factor fair use test and/or Get Help. In cases of doubt, it is always most desirable to get permission.

Educational Guidelines

The Conference on Fair Use (CONFU) in the late 1990s was an attempt to create guidelines for fair use which could be mutually agreed upon by copyright holders and educators. In the end, the group failed to come to consensus and the Guidelines were never adopted. Many still use the guidelines as a framework for thinking about fair use.

For commentary on their use, see:

CONFU: The Conference on Fair Use
Multimedia Guidelines for Fair Use
Guidelines for Digital Images

Requesting Permissions

When Fair Use doesn't apply

If you have determined that a work is still under copyright and your proposed use is not fair use, then you need to obtain written permission to use the work.

Finding the Copyright Holder

The University of Texas Getting Permission web site includes information about finding copyright holders and contacting collective rights organizations for permission. Collective rights organizations are groups that serve as agents for copyright owners to receive and process requests for permission to use copyrighted materials

The Copyright Clearance Center provides a service for requesting permission to use copyrighted materials, and covers nearly two million copyrighted works, primarily text-based works (books and journals). In many cases permission can be applied for and granted instantly online with the payment of the required permission fee.

Writing for Permission

You can use the Sample Permission Request Letter as a basis for requesting permission from the copyright holder. There is no required form for requesting permission. If you chose not to use the sample permission request, your permission request should at least include the title of the work, the name of author, artist, or editor, a precise description of what you want to use, and a description of how you intend to use it (e.g., copy, perform, display, make a derivate work, etc.). The more precise you can be in your permission request, the more likely it is that your request will be approved. Make sure to allow sufficient time for your permission request to be processed. In many cases 4-6 weeks may be required.

Liability

Understanding what can happen to you

The most obvious risk resulting from illegal reproduction or redistribution of copyrighted material is the risk of litigation or the threat of litigation.

While the "fair use" provisions permit certain uses of copyrighted materials for educational purposes, not all uses, even within the classroom, fall under "fair use." Copyright owners who believe their rights have been violated may bring legal action against the infringer. Catholic Online School faculty, staff and students can be held personally liable for unauthorized use of copyrighted works. A successful suit may result in the violator paying monetary damages and legal fees. If you willfully infringe a copyright, a court can award damages of up to $150,000 for each infringement. Willful copyright infringement can also be a crime under federal law. It is therefore important to understand the conditions under which something may be considered fair use.

Protecting Your Rights and Respecting Others'

Do unto others...

As researchers and educators, faculty and other academic personnel are interested in exercising their fair use rights in the course of their work. Catholic Online School supports the exercise of fair use rights. At the same time, faculty members and Catholic Online School itself hold copyright in many published works, and have an interest in protecting those rights while supporting fair use of these copyrighted works.

When publishing work, authors should be aware that they may be able to retain rights when assigning copyright to a publisher. The retained rights will enable authors to continue using their publications in their academic work.