̨Íåswag

Though the United States Copyright Office offers a registration process to those interested in obtaining the maximum protection for their copyrighted materials, the registration is merely a formal recognition of a right that exists automatically by operation of law. In fact, any of the categories of work recognized under the Copyright Act is automatically subject to copyright protections the moment is recorded in any form, be it electronic, painted on a canvas, or scrawled on a legal pad.

Materials that are in the public domain are not subject to copyright protections, and may be copied, displayed, and distributed at will. Materials may enter the public domain through expiration of the copyright, by the decision of the copyright owner to place the materials in the public domain, or by virtue of the fact that the materials were not subject to copyright protections to begin with (such as is the case with many government document). Naturally, the availability of materials in the public domain does not excuse their use without appropriate attribution.

The question of what materials are in the public domain may be complex, because a single item might be subject to more than one copyright, not all of which might have expired. Consider these scenarios:

A compact disc containing a recording of a modern pianist playing J.S. Bach’s Inventions. The works were written in 1723 and are in the public domain, but the recording of the much more recent performance of the works may still be subject to copyright.

A compact disc containing a transcribed recording of a 78 rpm record, manufactured in 1910, of a pianist playing J.S. Bach’s Inventions. In this case, both the music itself and the 1910 recording of it have passed into the public domain. However, the compact disc might contain edits, alterations, or compilations of music that would, in their own right, be subject to copyright.

Deciphering copyrights isn’t impossible, but it does take a bit of analysis at times, with an eye toward just what rights are owned by what parties.

Materials that are in the public domain are not subject to copyright protections, and may be copied, displayed, and distributed at will. Materials may enter the public domain through expiration of the copyright, by the decision of the copyright owner to place the materials in the public domain, or by virtue of the fact that the materials were not subject to copyright protections to begin with (such as is the case with many government document). Naturally, the availability of materials in the public domain does not excuse their use without appropriate attribution.

The question of what materials are in the public domain may be complex, because a single item might be subject to more than one copyright, not all of which might have expired. Consider these scenarios:

A compact disc containing a recording of a modern pianist playing J.S. Bach’s Inventions. The works were written in 1723 and are in the public domain, but the recording of the much more recent performance of the works may still be subject to copyright.

A compact disc containing a transcribed recording of a 78 rpm record, manufactured in 1910, of a pianist playing J.S. Bach’s Inventions. In this case, both the music itself and the 1910 recording of it have passed into the public domain. However, the compact disc might contain edits, alterations, or compilations of music that would, in their own right, be subject to copyright.

Deciphering copyrights isn’t impossible, but it does take a bit of analysis at times, with an eye toward just what rights are owned by what parties.

The Copyright Act generally protects the author or owner of a work’s exclusive right to publish, distribute or perform the work. This general protection is subject to several exceptions, among them the Fair Use doctrine, codified at Section 107 of the Act. The Fair Use doctrine provides that “the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified [in Sections 106 and 106A of the Copyright Act], for purposes of criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” Though it lists the purposes for which one may make fair use of copyrighted materials, the statute does not give us much of a definition of fair use. Instead, we are given four factors to consider in judging whether a particular use of copyrighted materials is fair:

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

Since the rule is stated so vaguely, it is understandable that there is much confusion. Publishers seek to limit fair use to the absolute minimum, in order to stimulate sales of published materials and maximize profits. But it is the courts and not the publishers that flesh these four factors out. Though the statute is somewhat murky, it is worth noting that its inclusion in the Copyright Act of 1976 did not establish a new rule. In fact, the doctrine had already long existed as a judicial limitation on copyright, and was therefore understood by the legal system. There have emerged some points that help us navigate.

Movies in the classroom

One of the most common fair use questions has to do with the use of movies, television shows, or other recorded performances in the classroom. Most of the time, instructors obtain such recordings by renting or purchasing them in VHS or DVD form at a local store or other retailer such as Amazon.com, or by downloading them from online sources such as Amazon.com or iTunes. A work obtained in these ways usually carries with it a license, or permission to use the work, that extends by its terms only to viewing the work in private homes. However, it is considered a fair use of such works to display them in a face-to face classroom setting when all of the following conditions are met:

1. The work was lawfully obtained (e.g., not illegally copied)
2. The work is displayed in the classroom
3. Viewing the work is a part of the course content of a for-credit course, and is required of students in the course; and
4. Display of the work is limited to students who are signed up and receiving credit for the course.

Therefore, it is fair use of a movie to show it in class to students who are members of that class and who are physically present, but it is not fair use (and therefore usually constitutes infringement) to show the movie to persons not receiving credit for a particular class, such as persons attending a film festival. This is true regardless of whether admission is charged. Movie distributors generally make available (at higher cost) for rent copies of movies that carry broader licenses, and may be shown to groups in a more public setting.

Copying printed materials

In 1976, an ad hoc committee composed of representatives of educational groups and publisher associations wrote a set of mutually agreeable guidelines that, though they do not carry the force of law, are nevertheless quite helpful in determining whether the copying an distribution of copyrighted materials in a classroom setting falls with the fair use rule. Unfortunately, the guidelines themselves are complex in their own right, but they at least establish some boundaries as to what might, in good faith, be considered fair use.

1. Is the work a digital educational work, i.e., a work produced or marketed primarily for performance/display as part of mediated instructional activities transmitted via digital networks?
   • No: Proceed
   • Yes: Seek Fair Use, Permissions, or Licensing
2. Is the work lawfully made and acquired?
   • Yes: Proceed
   • No: Stop
   • Don't Know: Would a reasonable evaluation indicate the origin of the work to be questionable? If so, stop.
3. Is the work
   • An integral part of the class session?
   • Part of systematic mediated instructional activities?
   • Directly related and of material assistance to the teaching content?
     • Yes: Proceed
     • No: Reevaluate use of the work or seek Fair Use, Permissions, or Licensing.
4. Amounts allowed:
   • Nondramatic literary works: All
   • Nondramatic music works: All
   • Any other works:
   • Performances - Reasonable portions in an amount comparable to that performed in live classroom
   • Displays - Amount comparable to that performed in live classroom
     • Yes: Proceed
     • No: Stop. Seek Fair Use, Permissions, or Licensing
5. Is transmission of the work limited, as technically feasible, to students enrolled in the course?
   • Yes: Proceed
   • No: Stop. Seek Fair Use, Permissions, or Licensing
6. Have you implemented reasonable measures to prevent retention of the works for longer than the class session? and, have you implemented reasonable measure to prevent unauthorized further dissemination in accessible form by the recipients?
   • Yes: Proceed
   • No: Stop. Seek Fair Use, Permissions, or Licensing
7. Is there a digital version of the work available to the institution? (THESE CHOICES DON'T MAKE SENSE)
   • Yes: Is the digital version technologically protected to prevent TEACH uses?
   • Yes: Conversion of analog to digital permitted
   • No: Conversion of analog to digital not permitted
   • No: Conversion of analog to digital permitted  
8. Is there a notice accompanying the work notifying students that the work may be protected by copyright?
   • Yes: Proceed
   • No: Provide one with the materials, for example:
     The materials on this course web site are only for the use of students enrolled in this course for purposes associated with this course and may not be retained or further disseminated.

While the Fair Use Doctrine and the TEACH Act exist for the purpose of encouraging (or at least permitting) reasonable use of copyrighted materials in educational settings, the uncertainty these rules create, coupled with at times aggressive enforcement by copyright holders, renders these laws only partially effective in creating for instructors a “safe harbor” within which they may be assured that their actions are not subject to challenge.

Where doubt exists, permission for particular uses of copyrighted materials (a license) may be sought from the copyright holders. Whether this will be possible in a particular case depends on how easy or difficult it is to locate the owner of the copyright, and that owner’s willingness to permit the desired use of the materials at no cost, or at a manageable cost. But where written permission for specific uses of copyrighted materials are first secured, there need be no doubt as to whether that use will (or will not) be protected under fair use rules.

Stanford University Library publishes an excellent practical guide to those interested in securing copyright permissions, the . Many copyright owners are participate in the , a clearinghouse useful for obtaining copyright permissions for a broad range of copyrighted materials.

Live public performance of copyrighted music is, in most cases, covered under one of the blanket license agreements the University maintains with ASCAP, BMI, and SESAC. Such licenses also cover public use of recorded music, such as that played in public spaces, telephone hold music, and the University radio station. Questions about specific uses permitted under these licenses should be referred to the Office of General Counsel.

Live public performance of copyrighted music is, in most cases, covered under one of the blanket license agreements the University maintains with ASCAP, BMI, and SESAC. Such licenses also cover public use of recorded music, such as that played in public spaces, telephone hold music, and the University radio station. Questions about specific uses permitted under these licenses should be referred to the Office of Legal Affairs.

Various pieces of software floating around on the Internet and elsewhere enable users to illegally download unlicensed music, videos, or software for free, and to share those files with others who would also like free access to these materials. Not everyone agrees that this practice ought to be illegal, but nobody can deny that it is. Trade organizations such as the Recording Industry Association of America (RIAA) are aggressively opposing free file-sharing. The RIAA is filing suits against college and university students who have copyrighted materials available for file-sharing on their computers.

The RIAA and other trade groups regularly notify University of North Georgia of the presence of unlicensed materials in file-sharing programs on machines hooked to our network. Under the law, University of North Georgia could face liability if it fails to disable the account and notify the account holder why this has happened. To prevent this, we move quickly to fulfill our legal duties and prevent further distribution of unlicensed files over our network.

A lot of University of North Georgia students have been getting these notices from the Office of General Counsel. Because having illegal file-sharing software and content on a computer hooked to our network is a violation of University of North Georgia’s computer use policy, the names of students about whom we receive these notices are turned over to Judicial Affairs.

The Office of General Counsel moves quickly to protect the University from liability in these situations. Students should work with Information Technology Services to restore their online accounts.

The Office of General Counsel exists for the purpose of serving the legal needs of the University, and cannot offer students legal advice in these matters. A few words of general information might be in order, however:

The RIAA and the other industry groups do sometimes sue students. Just because you get a notice from the Office of General Counsel doesn’t mean you are being sued. The Office of General Counsel does not know whether you are being sued or not. If you require legal advice, you will need to contact your own attorney.

Not all downloaded music, videos, and software is illegal. For example, providers such as iTunes, Napster, and Ruckus provide legal licensed product. Realize, however, that just because you are rightfully in possession of a music file does not give you the right to distribute it to others via file-sharing software.

The RIAA and other industry groups have technological means to sniff out the presence of file-sharing software loaded with unlicensed content. Please don’t think that illegal file-sharing won’t be noticed — the RIAA catches infringers every day.

More information about file-sharing is available online through the  and the .

Not-for-Profit Educational Institutions with Respect to Books and Periodicals

The purpose of the following guidelines is to state the minimum and not the maximum standards of educational fair use under Section 107 of H.R. 2223. The parties agree that the conditions determining the extent of permissible copying for educational purposes may change in the future; that certain types of copying permitted under these guidelines may not be permissible in the future; and conversely that in the future other types of copying not permitted under these guidelines may be permissible under revised guidelines.

Moreover, the following statement of guidelines is not intended to limit the types of copying permitted under the standards of fair use under judicial decision and which are stated in Section 107 of the Copyright Revision Bill.

There may be instances in which copying which does not fall within the guidelines stated below may nonetheless be permitted under the criteria of fair use. 

Guidelines

I. Single Copying for Teachers

A single copy may be made of any of the following by or for a teacher at his or her individual request for his or her scholarly research or use in teaching or preparation to teach a class:

1. A chapter from a book;
2. An article from a periodical or newspaper;
3. A short story, short essay or short poem, whether or not from a collective work;
4. A chart, graph, diagram, drawing, cartoon or picture from a book, periodical, or newspaper. 

II. Multiple Copies for Classroom Use

Multiple copies (not to exceed in any event more than one copy per pupil in a course) may be made by or for the teacher giving the course for classroom use or discussion; provided that:

1. The copying meets the tests of brevity and spontaneity as defined below; and,
2. Meets the cumulative effect test as defined below; and,
3. Each copy includes a notice of copyright. 

Definitions

Brevity

1. Poetry: (a) A complete poem if less than 250 words and if printed on not more than two pages or, (b) from a longer poem, an excerpt of not more than 250 words.
2. Prose: (a) Either a complete article, story or essay of less than 2,500 words, or (b) an excerpt from any prose work of not more than 1,000 words or 10% of the work, whichever is less, but in any event a minimum of 500 words.
3. Illustration: One chart, graph, diagram, drawing, cartoon or picture per book or per periodical issue.
4. Special' works: Certain work in poetry, prose or in 'poetic prose' which often combine language with illustrations and which are intended sometimes for children and at other times for a more general audience fall short of 2,500 words in their entirety. Paragraph 'ii' above notwithstanding such 'special works' may not be reproduced in their entirety; however, an excerpt comprising not more than two of the published pages of such special work and containing not more than 10% of the words found in the text thereof, may be reproduced.

(Each of the numerical limits stated in 'i' and 'ii' above may be expanded to permit the completion of an unfinished line of a poem or of an unfinished prose paragraph.) 

Spontaneity

1. The copying is at the instance and inspiration of the individual teacher, and
2. The inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission. 

Cumulative Effect

1. The copying of the material is for only one course in the school in which the copies are made.
2. Not more than one short poem, article, story, essay or two excerpts may be copied from the same author, nor more than three from the same collective work or periodical volume during one class term.
3. There shall not be more than nine instances of such multiple copying for one course during one class term.

(The limitations stated in 'ii' and 'iii' above shall not apply to current news periodicals and newspapers and current news sections of other periodicals.)

III. Prohibitions as to I and II Above

Notwithstanding any of the above, the following shall be prohibited:

1. Copying shall not be used to create or to replace or substitute for anthologies, compilations or collective works. Such replacement or substitution may occur whether copies of various works or excerpts therefrom are accumulated or reproduced and used separately.
2. There shall be no copying of or from works intended to be 'consumable' in the course of study or of teaching. These include workbooks, exercises, standardized tests and test booklets and answer sheets and like consumable material.
3. Copying shall not:
   1. substitute for the purchase of books, publishers' reprints or periodicals;
   2. be directed by higher authority;
   3. be repeated with respect to the same item by the same teacher from term to term.
4. No charge shall be made to the student beyond the actual cost of the photocopying.