Primer on Copyright Use

The Primer on Copyright Use is designed to elaborate on the Copyright Use and Policy of the University of Hawai'i and to provide examples to educate the reader about copyright use issues and aid the reader in applying the copyright use policies.

This primer is to be used in conjunction with the Copyright Use and Ownership Policy. The Policy takes precedence over everything written below. Because this primer cannot cover all situations, questions should be addressed to the delegated institutional administrator.

Copyright Basics | Public Domain | Section 107 | Section 108 | Warning of Copyright | Section 110 | Section 504c

Perspective

The college community, as a whole, uniquely reflects the entire spectrum of copyright interests from copyright creator and holder to users of copyrighted works. The University of Hawai'i is committed to supporting the creation, dissemination, and preservation of access to information for the advancement of society-this is entirely consistent with the primary purpose of the copyright

act as embodied in Article I, Section 8 of the United States Constitution. That section states that the purpose of copyright is "to promote the Progress of Science and useful Arts, by securing for limited times to Authors. the exclusive Right to their . writings."

In order to achieve the goal of advancing human knowledge, the Copyright Act provides creative incentives to authors and inventors by providing a limited monopoly over the use of their works. Creators of copyrighted works get a bundle of exclusive rights that are restricted by a series of limitations that advance the primary purpose of the Copyright Act.

Specifically, the current Copyright Act sets forth major limitations on the rights granted to copyright holders in favor of nonprofit educational purposes:

Section 107-the Fair Use Doctrine

Section 108-the Library Exemptions

Section 110-the Classroom Exemptions

Section 504(c)(2)-the Good Faith Fair Use Defense

Copyright Basics

A working understanding of basic copyright law is necessary before university users can make reasoned decisions regarding their proposed use of copyrighted material.

Copyright Protection

Copyright protection extends to original works of authorship, applies to any tangible medium of expression in which the author produces the work, and attaches whether or not a work is published or registered with the U.S. Copyright Office. This protection begins the moment the work is first fixed in a tangible medium of expression. Facts and ideas contained in a copyrighted work cannot be protected by copyright but the "expression" of the facts or ideas can be.

The copyright notice (©, name, date) is not required for works published after March 1, 1989. Therefore, lack of notice does not mean the work is within the public domain. Unpublished works are fully protected by copyright but will begin to enter the public domain beginning December 31, 2002, if the creator of the work has been deceased for at least 70 years on that date and the work has remained unpublished.

Rights of the Copyright Holder

The copyright holder possesses the following exclusive rights with respect to his/her work. The
rights are divisible and include:

1. The right to reproduce the work.
2. The right to prepare derivative works based on it,
3. The right to distribute it (or copies of it),
4. The right to perform it publicly,
5. The right to display it publicly, and
6. The right to digitally transmit a sound recording.

Works Which May Be Freely Used

Copyright protection does not extend to the following categories of works and therefore copyright permission is not required.
Works in the public domain, which include:

1. works for which the copyright has expired;
2. works for which the copyright was lost;
3. works produced by a federal government employee produced within the scope of his/her employment;
4. works clearly and explicitly donated to the public domain;
5. works which lack sufficient originality to qualify for copyright such as standard calendars, standard ht./wt. Charts, ruler, etc.

Length of the Copyright Term

When Works Pass into the Public Domain

Includes material from new Term Extension Act, PL 105-298 (Lolly Gasaway, UNC-CH)

¹Term of joint works is measured by life of the longest-lived author.

²Works for hire, anonymous and pseudonymous works also have this term. 17 U.S.C. § 302(c).

³Under the 1909 Act, works published without notice went into the public domain upon publication. Works published without notice between 1-1-78 and 3-1-89, effective date of the Berne Convention Implementation Act, retained copyright only if, e.g., registration was made within five years. 17 U.S.C. § 405.

Notes courtesy of Professor Tom Field, Franklin Pierce Law Center

The Statutory Exemptions

There are primarily four sections of the Copyright Act which accrue to the benefit of nonprofit educational users in the university community. The first three sections discussed below contain rights for copyrighted material. The fourth, the "good faith fair use defense," is a very important section for employees of nonprofit educational institutions who have made a reasoned fair use analysis with respect to their proposed use.

Section 107: The Fair Use Doctrine

The purpose of the fair use doctrine is to allow limited use of copyrighted material without requiring prior permission from the copyright holder. The statute lists four factors to be weighted when analyzing the proposed use in order to determine whether it is a fair one. Consideration of all factors is required although all factors do not have to be in favor of a use to make it a fair one.

A fair use analysis is necessarily a fact-driven one. Each unique set of facts regarding a proposed use leads to its own reasoned conclusion. Reasonable individuals may come to different conclusions concerning the same set of facts, but the operative word is "reasonable." If an employee of a nonprofit educational institution has made a rational and reasonable fair use determination, he or she is not likely to be targeted for an infringement lawsuit because of §504(c)(2), the good faith fair use defense. Under this section, a court must remit statutory damages to zero in any case where an infringer believed, and had reasonable grounds for believing, that his or her use of the copyrighted work was a fair use, if the infringer was an employee of a nonprofit educational institution, library, or archive acting within the scope of his/her employment.

Fair use applies in the digital environment and encompasses not only the right of reproduction but also the rights of performance, display, modification, and distribution.

A fair use analysis can be a difficult process. For the convenience of members of the university community, please see the accompanying Fair Use Worksheet, which should be used only in conjunction with this primer. Additionally, for reference and general guidance only, see the "Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with Respect to Books and Periodicals," HR 94-1476, which was incorporated into the legislative history, although not the actual text, of the 1976 Copyright Act. These guidelines only address copying print materials for classroom use.

The four fair use factors are as follows:

The purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes;
The nature of the copyrighted work;

The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

The effect of the use upon the potential market for or value of the copyrighted work.

1) The First Fair Use Factor: Purpose and Character of the Use

This factor will generally weigh in favor of fair use if the proposed use is a nonprofit educational one as opposed to a commercial use. Most uses at the University can probably be characterized as nonprofit educational uses. But educational use alone does not automatically result in a finding of fair use, just as a commercial use is not always an infringing one. A nonprofit educational use
would likely result in this factor favoring a finding of fair use, but remember that the other three factors must also be considered. Additionally, with respect to the reproduction right, this factor is more likely to weigh in favor of fair use if the use is transformative rather than verbatim copying.

2) The Second Fair Use Factor: Nature of the Copyrighted Work

This factor will generally weigh in favor of fair use if the work to be used is factual in nature (scholarly, technical, scientific, etc.) as opposed to works involving more creative expression, such as plays, poems, fictional works, photographs, paintings, and such. Some works have no fair use rights attached, such as standardized tests and workbooks, and works that are meant to be consumed.

The case for fair use becomes even stronger when there are only a few ways to express the ideas or facts contained in a factual work. The line between unprotected "facts and ideas," on the one hand, and protected "expression," on the other, is often difficult to draw. If there is only one way or very few ways to express a fact or an idea, the expression is said to have merged into the fact/idea and there is no copyright protection for the expression.

As previously stated, unpublished works are currently fully protected by law. Nevertheless, fair use applies to them as it does to published works, but the author’s rights of first publication may restrict fair use.

3) The Third Fair Use Factor: Amount and Substantiality of the Portion Used in Relation to the Copyrighted Work as a Whole

Although there are no numerical or percentage limits, the larger the amount one uses, the less likely it will be a fair use. This deliberate flexibility in the statute allows each situation to be judged on its specific facts and allows the doctrine to be practical in the higher education setting.

This factor also takes into consideration the quality of the portion taken as well as the quantity. Sometimes, even if only a small amount is taken, this factor weight against fair use if the portion can be justly characterized as "the heart of the matter."

It is not difficult to see how this factor and the fourth factor, market effect, work in tandem. The more taken in amount and substantiality, the greater the negative impact on the market for the copyrighted work.

4) The Fourth Fair Use Factor: The Effect of the Use on the Market for or Value of the Copyrighted Work

This factor examines the effect of the use on the publisher’s market. If the proposed use became widespread and would negatively impact the market for or value of the copyrighted work, this factor would weigh against fair use. This factor is often cited as the most important of the four although, again, the factors all interrelate and must be evaluated in conjunction with each other. In fact, this factor often becomes problematic because it can easily lead to circular reasoning: the purpose of the fair use analysis is to decide whether or not a permission fee is required–the existence of a market for permissions should not determine whether a fee is necessary in the first place.

Section 108: The Library Exemptions

The §108 exemptions deal primarily with the copyright holder’s right to control reproduction of the work. Most, if not all, of the libraries within the UNC system qualify for the §108 exemptions because they are open to the public, make reproductions for patrons on a nonprofit basis and include notices of copyright with the reproduction. If the work contains a copyright notice, that notice must be included with the reproduction. If no notice can be found for the work, a statement indicating that the work may be protected by copyright is sufficient.

1) Library Reproduction of Unpublished Works

The library may reproduce an unpublished work in its collection for preservation or security purposes. It may also reproduce such a work for deposit in another qualifying library for research purposes.

2) Library Reproduction of Published Works

The library may reproduce a published work in its collection only to replace a work that is damaged, deteriorating, lost, stolen, or obsolete, and then only if it has determined after a reasonable effort that an unused replacement cannot be obtained at a fair price.

3) Library reproduction for Patrons

The library may reproduce small portions of a copyrighted work or one article or contribution to a copyrighted collection for a patron if:

• The reproduction becomes the property of the patron
• The library has no notice that the reproduction will be used for something other than private study, scholarship or research; and
• The library has a display and order form which include the "Warning of Copyright" as prescribed by the Register of Copyright.
  

Warning of Copyright

The copyright Law of the United States (Title 17, United States Code) governs the making of photocopies or other reproductions of copyrighted material. Under certain conditions specified in the law, libraries and archives are authorized to furnish a photocopy or other reproduction. One of these specific conditions is that the photocopy or reproduction is not to be "used for any purpose other than private study, scholarship, or research." If a user makes a request for, or later uses, a photocopy or reproduction for purposes in excess of "fair use", that user may be liable for copyright infringement. This institution reserves the right to refuse to accept a copying order if, in its judgment, fulfillment of the order would involve violation of copyright law.

The library may reproduce entire works or substantial parts of entire works for a patron if a reproduction of the work cannot be obtained at a fair price and if conditions 1 through 3 above are met.

Reproductions for patrons may be made in any medium, including electronic.

4) Self-Service Reproduction

The library is not liable for copyright infringement by patrons that may occur at unsupervised self-service reproducing machines as long as a notice is posted on the machine that the making of a reproduction may be subject to the copyright law.

5) Audiovisual News Programs

The library may make a limited number of reproductions of an audiovisual news program (local, regional, and national network newscasts, interviews concerning current events and on-the-spot news coverage of news events) for retention by the patron or by the library for lending.

6) Systematic Reproduction

The single reproductions authorized by §108 are limited to "isolated and unrelated" reproduction and exclude copying where the library or its employee "is aware or has substantial reason to believe" that it is engaging in the related or concerted reproduction or distribution of multiple reproductions of the same material, whether made on one occasion or over a period of time, and whether intended for aggregate use by one or more individuals or for separate use by the individual members of a group. However, nothing prevents a library from participating in interlibrary arrangements that do not have, as their purpose or effect, the substitution for a subscription to or purchase of the work.

7) Exclusion of Nonverbal Works

Reproducing musical, pictorial, or graphic works is not authorized under §108 except in the following circumstances:

Where a musical, pictorial, or graphic work is to be copied under conditions defined under preservation or replacement above;

Where a pictorial or graphic work published as an illustration, diagram, or similar adjunct to a work is to be copied as a part of the larger work under conditions for reproducing portions or entire works above.

Section 110: The Classroom Exemptions For Performance and Display

Section 110 contains the exemptions for the performance and display of works (not reproduction) essential to the functioning of a nonprofit educational institution.

1)Face-to-Face Classroom Setting

Educators and students may perform or display a copyrighted work in the course of face-to-face teaching at a nonprofit educational institution in a classroom or other place normally devoted to instruction. There are no restrictions on the type or length of work, and the copyright holder's permission is not necessary.

2) In the course of a transmission

If the work performed or displayed is to be transmitted by an educator or student, additional conditions must be met. Any work may be displayed, but only nondramatic musical works and nondramatic literary works may be performed in their entirety. Nondramatic literary works do not include audiovisual works. Furthermore, even those works allowed above can only be transmitted if:

1. the performance or display is a regular part of the systematic instructional activities of a nonprofit educational institution; and
2. the performance or display is directly related and of material assistance to the teaching content of the transmission; and
3. the transmission is made primarily for
   • reception in classrooms or similar places normally devoted to instruction; or
   • reception by persons to whom the transmission is directed because special circumstances prevent their attendance in classrooms or similar places.

Even with these restrictions, however, small portions of works such as audiovisual works might be transmitted as a fair use. See Item above, under Library Exemptions.

Section 504(c) (2): Damages for Copyright Infringement

The copyright holder may sue for infringement of the work and seek the following remedies:

1. Temporary and permanent injunction against infringement;
   
2. Impoundment of infringing copies; Destruction or other reasonable disposition of the infringing copies and any masters of negatives of infringing copies;
   
3. Actual damages to the owner;
   
4. Profits of the infringer attributable to the infringement;
   
5. Court costs and reasonable attorney's fees; and
   
6. Statutory damages

In lieu of actual damages and profits a copyright holder may seek statutory damages ranging from $30,000 to $150,000 per infringement depending on the willfulness of the infringement.

This document was created by Peggy E. Hoon, NCSU Libraries, and modified by the OVPAA, University of Hawai'i, with permission from the author, November 18, 2003

Last updated on 08/14/2008 by Leanne Chun, EMC Coordinator