Copyright, Fair Use & File Sharing: Copyright
/Fair Use

What is Copyright?

Copyright is the group of fundamental rights given to the creators of “original works of authorship” that are “fixed in any tangible medium of expression.” These mediums include, but are not limited to: print, video, DVD, sound recordings, computer disks, and Internet communications. The rights of the copyright owner include:  

• The right to make copies of the work  
• The right to sell or otherwise distribute copies of the work  
• The right to prepare “derivative works”  
• The right to perform or display the work  

Copyright infringement occurs when anybody other than the copyright owner exercises any of these rights without permission.

How do I know if a work is protected by copyright?

Under today’s law it is not necessary to register a work with the U.S. Copyright Office in order to receive copyright. Just because you do not see a copyright notice, it is not safe to assume that a work is not subject to copyright. Generally, all tangible and original works are protected by copyright. The exceptions are:  

• Works in the public domain, which cannot be copyrighted  
• Ideas and facts  
• Words, names, slogans, or other short phrases cannot be copyrighted but may be protected by trademark law  
• Works produced by the federal government  
• Works for which copyright has expired  
• Works created during or after 1978 are protected for the life of the author + 70 years  
• Works published before 1978 can be protected for a maximum of 95 years  
• For more information see When Works Pass into the Public Domain

What is Fair Use?

Fair use allows for the use of copyrighted materials, within certain limitations, for purposes such as “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” The law does not clearly delineate the boundaries of fair use. Instead, the law provides four factors, each of which must be weighed equally in order to determine fair use: 

• Purpose and character of the use – This factor favors nonprofit educational use, such as scholarship and teaching. However, an educational purpose does not automatically lead to fair use; the other three factors must also be considered.  
• Nature of the copyrighted work – Works that are factual in nature, as opposed to works involving creative expression, are more generally considered to be within the realm of fair use.  
• Amount of the portion used in relation to the copyrighted work as a whole – In general, the larger percentage of the work used, the less likely it is to be considered fair use. Although the copyright statute does not give specific numbers or percentages of a work that may be used, there are guidelines that cover most instances of fair use. The key is whether the "heart" of the work, what makes the work unique, is used more than the amount used.
• The effect of the use on the market value of the fair work – This factor weighs against fair use in instances where the purchase of an original should have occurred. Copying for purposes of research and scholarship are seen as having less effect on the market value than copying in lieu of purchasing works for classroom use.

Don’t all university activities fall under fair use?

Fair use usually only applies to instructional use, such as in the classroom or the library. University activities such as extra-curricular clubs and organizations, the yearbook, or musical and dramatic presentations usually fall outside the umbrella of fair use. However, even in instructional use, all four factors must be considered in order to determine fair use. 

Who is responsible for making decisions on copyright and fair use?

The primary responsibility for copyright decisions lies with the individual who is responsible for overseeing the relevant project or activity. Faculty are responsible for ensuring student compliance with copyright law in classroom research and activities. The Library Director oversees copyright compliance in library-related matters. Student Services is responsible for overseeing copyright compliance in extra-curricular activities.

How do I know if my purposes constitute fair use?

Copyright law rarely offers a definitive application of fair use for any specific situation. Therefore, fair use depends on a case-by-case reasonable and responsible application of each of the four factors. Educational purpose weighs in favor of, but does not guarantee, fair use. Congressional committees have established “safe harbor” guidelines for fair use exemptions for institutions of higher education. However, these guidelines are not law. They represent minimal permissible conduct under which fair use can be applied. While many consider these guidelines to be too restrictive, they define the limits within which we can be sure of complying with copyright law. These guidelines include:  

• Agreement on Guidelines for Classroom Copying  
• Guidelines for Off-Air Recording of Broadcast Programming for Educational Purposes  
• Guidelines for Educational Uses of Music