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10/31/17

Overview

  • In the U.S., content including books, journal articles, photos, audio and video are can be (and for most things published in the last 50 yours or so, are) protected by copyright restrictions.
  • This document attempts to orient you about:
    • The nature of copyright
    • The right of "fair use" as applied to non-profit research, teaching, and scholarship
    • Materials in the "public domain"
    • How to use Mandala in light of copyright law
  • This page does not provide legal advice

Copyright: Subject Matter, Rights, and Limitations

  • Copyright regulates certain uses of works of creative expression, including literary works, audio-visual works, images, and sound recordings.

  • The law gives a work's copyright-holder the exclusive right to do or to authorize the following activities:

    • Reproduction

    • Distribution

    • Public performance and display

    • Adaptation into derivative works (including translations, sequels, annotated editions, adaptations from one form to another)

  • These exclusive rights last for "limited times"—after a work's copyright term expires, it enters the public domain, and anyone is free to use the work in any way they like
  • During the term of copyright, a work may be used without permission if the use is covered by one of the several limitations and exceptions to copyright, the most important of which is fair use.
  • More information about copyright generally and as it applies to scholarly work and teaching can be found at the UVA Library "Copyright Essentials for Scholars" page: http://copyright.library.virginia.edu/copyright-resources/essentials/.

Fair Use Generally

  • U.S. copyright law provides for "fair use" of copyrighted materials without payment or permission in certain circumstances.
    • Fair use is a flexible doctrine based on the weighing of four factors - the purpose of the use, the nature of the work used, the amount used, and the effect of the use on the market for the work.
    • Non-profit research, teaching, and scholarship are among the kinds of uses favored by fair use, but not every such use is fair.
    • Rather, each use has to be evaluated on its own merits to determine whether, in light of the four factors, permitting unlicensed use serves the ultimate purpose of copyright: the promotion of progress in culture and science.
  • In recent cases, courts have made clear that use for a new, "transformative" purpose will be strongly favored under each of the four factors.  
    • In the words of Judge Pierre N. Leval, to be transformative:
      • "The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. A quotation of copyrighted material that merely repackages or republishes the original is unlikely to pass the test; in Justice Story's words, it would merely “supersede the objects”' of the original. If, on the other hand, the secondary use adds value to the original—if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings— this

        is the very type of activity that the fair use doctrine intends to protect for the enrichment of society." - Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1111 (1990).

      • Transformative uses are strongly favored, as long as the amount used is appropriate to the new purpose.

      • Courts typically find that a transformative use is not a threat to the original work's market because the use is not "substitutional"—the user is not presenting the work as a substitute for the original work, but rather is using the work for her own purpose.
    • Given this turn in the law, old fair use guidelines that emphasized counting words or pre-determined percentages of a given work are no longer useful. Indeed, courts have specifically rejected the 1976 Classroom Guidelines and similar documents as undue limits on educational use.
  • Fair use is an important right that serves the public interest in spurring creative and productive new uses of existing works. The Supreme Court has said that fair use is a "First Amendment safety valve" because it ensures copyright law does not stifle important expressive and educational activity. Fair use is not 'excused infringement' or 'tolerated use'; it is socially beneficial and encouraged by the law.
  • In recent years, many practice communities have come together to describe the core, recurring contexts where they believe fair use applies to their activities. Where they apply, these best practices are a great source of guidance about what uses are considered fair.
    • Links to the Best Practices documents most likely to be useful to Mandala users are included below, under "Mandala and Copyright."

Public Domain Materials

  • Generally, work published more than 95 years ago is very likely to be in the "public domain" and can be reproduced and disseminated in any form.
    • Note that since copyright term was last extended, in 1998, the dividing line for published materials has been 1923, with works published prior to that year falling in the public domain, and works published during or after 1923 being protected by copyright. As of January 1, 2019, however, this line will begin to move forward through time. In 2019, works first published in 1923 will enter the public domain. In 2020, works first published in 1924 will do so. And so on. Be careful if you consult copyright guidance that is not updated in the next year or so, as it may erroneously continue to include 1923 as a meaningful year.
    • Works published between 1923 and 1964 had to have their copyrights renewed in order to enjoy the full 95-year term of protection. Many such works were not renewed, and entered the public domain long ago, but researching renewal can be complicated.
  • Unpublished works have a complex copyright term that is typically indexed to the life of the author—for most of these works, the copyright term is the life of the author plus 70 years.
  • A thorough chart hosted by Cornell University can help you assess whether a given work is in the public domain: https://copyright.cornell.edu/publicdomain.

Copyright Request and Release Forms

The following templates may be useful if you need to seek copyright permission or if your project requires a release form.

Mandala and Copyright

  • Mandala supports your work within copyright law and fair use.
  • One way that Mandala allows you to work within the law is by tailoring your use to restrict access to each asset or collection. In Mandala, you may choose among the following restriction classifications:
    • Public
    • Private
    • Group 
    • Class
  • When sharing materials for course use with Mandala, consider Principle One from the Association of Research Libraries' Code of Best Practices in Fair Use for Academic and Research Libraries. That Principle states that "It is fair use to make appropriately tailored course-related content available to enrolled students via digital networks" subject to the following limitations:
    • Closer scrutiny should be applied to uses of content created and marketed primarily for use in courses such as the one at issue (e.g., a textbook, workbook, or anthology designed for the course). Use of more than a brief excerpt from such works on digital networks is unlikely to be transformative and therefore unlikely to be a fair use.
    • The availability of materials should be coextensive with the duration of the course or other time-limited use (e.g., a research project) for which they have been made available at an instructor’s direction.

    • Only eligible students and other qualified persons (e.g., professors’ graduate assistants) should have access to materials.

    • Materials should be made available only when, and only to the extent that, there is a clear, articulable nexus between the instructor’s pedagogical purpose and the kind and amount of content involved.

    • When appropriate, the number of students with simultaneous access to online materials should be limited.

    • Students should also be given information about their rights and responsibilities regarding their own use of course materials. (For example, instructors could include in their Mandala pages a notice to students that materials are provided for use in connection with the course, and that other uses may require students to seek permission from the copyright holder.)

    • Full attribution, in a form satisfactory to scholars in the field, should be provided for each work included or excerpted.

    • It is a good practice to keep a record of your rationale for using a given excerpt—what is your pedagogical purpose, and how is the amount you use appropriate to that purpose?
    • Review posted materials and make updates as appropriate; remove copyrighted material that is no longer useful to the course from the course site.
  • When publishing materials to the public web using Mandala, consult Best Practices documents that address uses in public, such as:
  • The Center for Media and Social Impact has collected all the best practices documents here: http://cmsimpact.org/codes-of-best-practices/.

Disclaimer

  • This advice orients you and better prepares you for a consultation with your attorney and/or the University's General Counsel
  • This document does not substitute for legal advice
  • This document focuses on U.S. copyright law and practice 
  • International copyright varies widely from U.S. law and practice
  • Copyright law and it's interpretation are continually changing, particularly in the web environment

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