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Frequently Asked Questions |
These questions have come to the attention of the Office of General Counsel from a variety of sources, including personal correspondence and listserves. For a very good general work on copyright law, see Terry Carroll's FAQ.
1. My department subscribes to several journals that are routed to me weekly. I read them all and usually find at least one or two articles that I know I will need to refer to later. I ask my secretary to make a copy of the ones I wish to keep and I label and file them in my personal files. Is this fair use?
In our nonprofit educational and research environment, this is probably fair use. It is analogous to the copying teachers are permitted to do under the Classroom Guidelines, that is, to make or have made for themselves a copy of a chapter from a book, an article from a periodical or other short excerpt from a work.
2. Our department has two sections and we routinely make a copy of each journal to which we subscribe so that the journal can be distributed to the sections' members simultaneously. We usually destroy the copy after it is returned to the library. Do we need permission to do this or is it a fair use?
Arguments can be made on both sides of this issue: Is copying each journal in effect a substitution for a second subscription? If so, it is probably not a fair use because copying the whole issue every week or month impacts the market for the original in the amount of the cost of a second subscription. On the other hand, if you had to make a choice between paying for another subscription and circulating the single original to all your department's members, would you choose the latter alternative? If so, no revenues are really being lost by the publisher. In either event, the destruction of the copy would support the assertion that it is made for the temporary convenience of your department's members only and not to ultimately increase your number of journal copies. This is similar to the "timeshifting" of television programs that the Supreme Court approved as fair use in the Sony case.
3. I am the head of a department and when I come across an article in a newspaper or journal that I think will be of interest to certain members of my staff, I make copies and distribute them for the members' information. The number of copies ranges between two and six or seven, but on occasion has been as high as twenty when I thought everyone would be interested. This does not happen very often, only about once or twice a month. Is this fair use?
Infrequent distribution of "FYI" copies to a limited number of colleagues is probably fair use based upon several theories. If your colleagues were to have read the article themselves, they may well have made a copy anyway or asked your librarian for copies individually. "FYI" copying is also analogous to the copying that teachers are permitted to do for classroom instruction. Judicious use of this privilege is important though. You might ask your intended recipients if they have seen the article before making them copies; it could be that some of them read the same newspapers and journals that you do and have already read the article.
4. There are certain journals that we will not circulate because they are so frequently used as references by all our staff that we do not feel we can risk loss of or damage to the original, so we automatically make a copy of them when they come in and circulate the copy rather than the original. We toss the copy after it has been returned to the library at the end of the circulation. Do we need permission to do this?
In principle, there is very little difference between this activity and the activity described above in question 2. Both are difficult to analyze because it is unclear how a court would judge the activity. One could argue that you really should buy two subscriptions, one to circulate and one for library use only, since your copying appears in many respects to substitute for a second subscription, thereby directly impacting the publisher's market for the original. In effect, you are making a "backup" copy, which the law does not permit except with respect to computer programs. Libraries are not permitted under Section 108 to make copies of entire published journals except to replace lost, stolen, damaged or deteriorating works or upon request by a patron, but in either case, only if a replacement is unavailable at a fair price. This does not appear to protect the copying you describe.
But as above, if buying a second subscription is really not a financially tenable alternative for you, then your copying does not really hurt that market. Again, throwing the copy away after circulation supports the "timeshifting" argument that you are copying to increase access to the works by temporarily making access more convenient. In a nonprofit setting, such copying should be fair use.
1. While preparing my teaching materials, I came across an article I had photocopied a while back. I wanted to include the article in a coursepack but I don't have the original anymore and I can't remember who published it. May I still include it in the coursepack?
A single article from a periodical may be copied for classroom use under Section 107. There is nothing in the statute that requires that a notice of copyright be included with such copies, but it is required by the Classroom Guidelines, and so would be a good idea. Include a note to the effect that this article may be protected by copyright law. If the situation were such that copying the article would not be fair use (for example, if the article were a freestanding monograph and full of poetry and artwork), the inability to contact the publisher to obtain permission would rule out the inclusion of this article in your coursepack. It is always a good idea to note on file copies the source of the article.
2. May an instructor make photocopies of a journal article to hand out to each student in her class?
Yes. The article may be copied for one class without getting permission from the copyright holder. If the instructor wishes to use the same article over multiple semesters, it would be wise to ask for permission. Although Section 107 does not include temporal limitations, it appears that a consensus is developing that repeated reliance on fair use is unjustified. Many negotiated guidelines for fair use in a variety of contexts include a temporal limitation.
3. May an instructor make copies of slides checked out from the library?
The instructor should obtain permission from the copyright holder. The fair use of slides is somewhat narrower than the fair use of scholarly articles because several factors in the fair use analysis weigh against fair use when considering images. Slides are more creative and artistic than factual; they are entire works rather than parts of works. Thus, two of the first three factors weigh against fair use. The fourth factor will also weigh against fair use when the slides are readily available from a commercial source, as so many are.
4. What exactly does the prohibition against creating anthologies mean? Is it as simple as just collating two or more articles into a packet, or does it mean something more than that? As a follow-up, could we place an anthology on reserve instead of making it into a coursepack and thereby avoid having to ask for permission?
First, the prohibition against anthologies is part of the Classroom Guidelines, not part of copyright law. The Classroom Guidelines do not define the limits of fair use, only a narrow subset of fair use. Second, the prohibition on anthologies has been interpreted by at least one court to be just one of the factors to take into account in the analysis of classroom copying. Thus, the fact that articles are collated into a collection is but one thing to consider in the fair use analysis.
The idea behind the prohibition is that copies that substitute for the purchase of a work are less likely to be fair because they have a more devastating impact on copyright owners than supplemental copies do. Thus if you avoid assigning any textbook to your students and compile all their readings from photocopies of chapters and articles, your actions would result in significant financial loss to some copyright owners somewhere.The key here is "supplemental." If your coursepacks supplement your other assigned readings, you are not likely to stray into infringement unless you are copying large parts of others' works.
The new ereserve guidelines (not finalized) suggest that reserves would require permission if they were a substitute for coursepacks. But this seems to assume that a coursepack could not be a fair use as well. To the extent a coursepack qualifies as fair use, placing the same materials on reserve should also qualify as fair use. But then, the opposite would also be true; to the extent a coursepack required permission, the same items on reserve should require permission too.
5. Our department has jointly authored a 50-60 page lab manual that we distribute to our students through the campus bookstore each semester at cost. We included 5 or 6 diagrams and sketches from published literature. Is this fair use? Would it be fair use if we just passed these photocopies of diagrams and sketches out in class?
Whether included in your self-authored lab manual, or passed out in class, the same fair use analysis would apply. The most important question is whether the 5 or 6 diagrams and sketches are all from the same published work, or from different works. The fewer items you include from someone else's work, the better. In this case, however, with a total of only 5 or 6, you would be unlikely to run afoul of fair use even if they were all from the same work, unless they comprised a substantial portion of the diagrams and sketches from the single work.
6. May a faculty member prohibit recordings of his/her lectures by students registered for the class? What about by professional note-takers?
The University of Texas asserts no proprietary interest in the contents of its professor’s lectures, so, barring the need for a reasonable accommodation under the ADA, this would be a private matter between the professor and the student.
Professional note-takers may be banned from the classroom as trespassers, but if they register for a class, they would be treated as students.
1. May I make a copy of my videotapes for safekeeping?
Many people believe that it is permissible to make a backup copy of a videotape or audiotape, especially where the tape will be used frequently, so that if it is damaged, destroyed, or lost, the backup will be available to take its place. For example, a lending library may wish to make copies of its video and audiotapes routinely and to lend out the copy or the original, retaining the other for backup purposes. In fact, only computer programs may be copied for backup purposes. This practice with audio and videotapes is a violation of the copyright law.
2. Do we need a license from the performance rights groups to play radio music over our telephone system while callers are on hold?
Yes. Such a broadcast would be considered "open to the public" and would not fall under any exemption.
3. We show movies about once a month in a conference room for the entertainment of our employees. We do not charge an admission price; we serve popcorn; we advertise the event in an in-house newsletter; and about 20 to 30 people come each month. Do we need permission?
Yes. Even though the performance is in a place not open to the public, the number of people you indicate is "a substantial number of persons outside of a normal circle of a family and its acquaintances." Therefore, the performance is a public performance.
The face-to-face teaching activities exemption does not apply because this is not a teaching activity; the educational broadcast and the nonprofit public performance exemptions do not apply because a movie is a dramatic audiovisual work and these two exemptions only apply to non-dramatic literary or musical works. As a result, the performance infringes the copyright owner's rights unless permission is obtained.
4. As an instructor, may I compile short clips from copyrighted videos into an instructional video to show to my students?
If you use short clips in your video and display the composite to your students in a classroom or other educational setting, you have a strong fair use defense to infringement under Section 107 and further qualify for exemption from liability under Section 110, which exempts performances in face-to-face teaching situations.
5. I am a nursing instructor. May I show a commercial video at the mall's health fair?
Contact the copyright holder to obtain permission for this particular use. Showing the commercial video in a classroom setting is acceptable educational use, but showing the video at the mall or other public place not typically dedicated to education constitutes a public performance that is not likely to be within the face-to-face teaching exemption of Section 110, even though this is an educational event.
6. May I make copies of a newly-purchased educational video to place on different floors of our building? May I show the tape through the in-house TV system?
You should ask permission to make a copy of the tape. Making a copy of an entire videotape would be hard to justify as a fair use. You must also ask permission to show the tape because the broadcast exemption for educational use in Section 110(2) does not apply to audiovisual works (all videotapes are inherently audiovisual under the statute's definition).
7. Students in our dormitory wish to show commercial videotapes in the common lounge areas. Is this ok?
The answer to question 3 above applies to this situation also. Even without advertising the showing, a performance in a place where more than the "circle of a family and its acquaintances" is gathered is a public performance and would not be exempt from liability as a teaching activity. There are also serious University liability issues if the institution encourages or facilitates such activity by providing a VCR in common areas.
8. Can rented videotapes be shown in the classroom if the face-to-face instruction requirement is met? I was under the impression that using rented videotapes was unacceptable because of the “For Home Use” announcement at the beginning of the tape.
The language you refer to does not eliminate your rights under copyright law. In order to lose those rights, you would have to actually be involved in a negotiation of some sort. Overly restrictive notices are a form of intimidation, nothing more. If you qualify for the rights under Section 110(1), you may exercise them.
1. I am creating a multimedia work and would like to include a photograph I took, but the photo includes a painting in the background, a mural. Do I need permission from the mural artist to include my own photograph in this work?
It may depend on what you plan to do with the work. If the work is for classroom use only, it would probably be a fair use to include the image of a mural, especially if it is incidentally a part of the photo.
If the work will be commercialized and the mural is only incidentally a part of the photo, you may still be ok; but if obtaining the image of the mural is more or less the point of your taking the photo, you should seek permission from the artist.
1. According to UT System Policy, the university will own distance learning materials that it commissions or that are created by a faculty member who was hired specifically or required to produce them. What does "hired specifically or required to produce them" mean?
Our Telecourse Policy, which interprets the Regents' Rules regarding ownership of intellectual property in the specific context of distance learning and telecourse materials preparation, indicates that faculty will own such materials as they create within their field of expertise, unless the materials are created as a work-for-hire.
In our university environment, a work will be classified as a work-for-hire and the University will own it in either of three circumstances:
Normally, faculty are hired without any express requirement to create particular works. Only an express requirement would be sufficient to cause the work to become one "created by an employee within the scope of his or her employment."
Excluding joint ownership, which is an additional and complex issue, the only other way that the University can come to own scholarly works created by a faculty member is to acquire those rights from the faculty member in a contract.
1. Is it an infringement to post a copy of a copyrighted song on my web site? If I do so and others download the song or just "listen" to it, would they be liable for any infringement?
In order to post the song, you would probably have to make a copy of it. Since the right to make copies is reserved to the owner, it would be an infringement without the copyright owner's permission. Further, contemplated changes in copyright law (watch H.B. 2441) would clarify that one can distribute a work by transmission, and even publish a work that way (these two situations are not covered by current definitions of transmit and publish). In that case, posting the song could also infringe the distribution and publication rights as well as the right to make copies. I've just heard that Frank Music Company and Compuserve settled their lawsuit over Compuserve's liability for payment of royalties to the Harry Fox Agency for distribution of the songs that were up and downloaded by Compuserve's subscibers to its digital music library, which contains hundreds of user-supplied music files. Additionally, S. 227, which provides for a performance right in the digital audio transmission of sound recordings was just signed into law. Thus, you and your browsers could be in a heap of trouble.
There is an interesting series of questions that starts with, "but who is making or distributing the copy, the person who posts the work or the person who accesses it? and when is the performance right implicated? when the work is posted, accessed, downloaded or listened to? and who is responsible for that infringement?" If you are interested in making new law, you might consider doing these kinds of things very publicly to draw the attention of copyright owners, but please don't do it on University computers! The next question shows why.
2. What is the University's liability if a student or an employee places someone else's copyrighted work on one of the University's Web sites? What do we have to do if someone alleges that this has happened?
The case law on system operator ("sysop") liability is not very good for us so far. Sysops have been held liable for the infringements of their users. If alleged infringement is brought to your attention, you must investigate it to determine whether an exemption applies, like fair use. If no exemption applies, you must stop the infringement immediately.
3. May a library include a small image of a bookjacket on a web site along with other bibliographic information about books for kids?
This would probably be a fair use.
4. A colleague wishes to quote postings from an internet discussion group in a forthcoming law review article. Is there any potential liability for infringement?
Internet postings are unpublished under current law, though proposed changes to copyright law would change this. Further, depending upon where these discussions took place, some areas of the Internet are more or less “public” and would further add to the character of the postings. It is not easy, therefore, to characterize them without more information. As a general rule, however, it is better to seek permission to publish anything other than short quotations for comment and criticism. The more one borrows, the less firmly one should stand on fair use.
5. Is “inlining” someone else’s image on you homepage an infringement?
The general consensus in the copyright community at this time is that it is. There is a more detailed discussion of inlining below in the section on Retrieving and Using Works from the Interenet.
6. A professor wants to post copyrighted materials, such as slides for an art history course, on the world wide web, with access restricted (by confidential password) solely to those students taking the class. Would such an arrangement constitute a copyright violation or is it a fair use of the materials on a limited basis for educational purposes?
If your faculty member’s desires fit within the framework of an electronic reserve, it should be a fair use. But, reserves shouldn’t be all the materials available for the course, so that might be a limitation. It also shouldn’t be available indefinitely, another limitation. If you want to create a permanent electronic archive of all the course materials (all the slides for the course), I would recommend that you seek permission from the slide copyright owners. You might check to see whether there are electronic versions of what you want already available on-line or by license (CD-ROM, for example) first.
1. Does fair use differ depending on whether the work is printed or available electronically?
The fair use provision does not distinguish among media. It applies equally to all media. Nevertheless, publishers are considerably more concerned about abuse of fair use in the electronic environment because of the ease of electronic duplication and distribution.
2. If fair use exists in the electronic environment, what is the role for a collective licensing arrangement such as that currently provided by the Copyright Clearance Center?
Presently, the CCC is unable to provide electronic copies of print or electronic materials or to give permission to digitize print materials. Publishers seem inclined to license users directly. Theoretically, however, electronic permissions would work like photocopy permissions: for a fee, you would receive permission or an electronic copy or a link to an electronic copy. Just as we currently do for print copies, you would only request permission or pay for an electronic copy if your proposed use was not a fair use. Realistically, though, if publishers site license access to their works, the license fee could accommodate fair use by discounting off the regular (non-educational) price. It is unclear at this time how this is going to turn out.
3. Is there any liability for linking to someone's site on the World Wide Web? What about "inlining" someone else's image?
Of course the law does not speak to the issue of linking to another's site on the World Wide Web, but it is generally considered to be impliedly permitted by the owner of materials that are placed there. Since this is one of the most important features of the Web, it would seem illogical for someone to place a work there without expecting and permitting links to the work. We say that Web browsers have an "implied license" from the document owner to link to works because it is reasonable to expect that they will.
"Inlining" on the other hand is probably not expected by the average document owner. Inlining is the term to describe the process whereby one sort of borrows a part of someone else's page (most frequently an image) and creates the illusion that the borrowed part is part of the borrower's page. Every image incorporated into a Web document has a source (a location on a computer on the Web) which any browser can plainly identify if she views the source html document for the page. The browser can place a link in her document to the same image source and, viola! When a new browser looks at her page, she will see the image from the original page, appearing as part and parcel of the borrower's page.
This process is not generally considered to be a part of the expected bargain when you put things on the Web. Most people feel that it goes too far. Since the law usually will not construe the terms of an implied license very broadly, you should ask for permission before including a line in your html code that will cause someone else's image to appear in your page when a browser views your page.
Interestingly, relying on the terms of an "implied license" skips over the question of whether either or both of the above-described activities would be an infringement in the first place. The answer to this question becomes important when someone tries to keep readers from linking or inlining with a written prohibition on their pages. If either or both of these activities are not an infringement to begin with, then users do not need an implied license to do them and owners can not prevent the activities because they are not within the scope of owners' exclusive rights. The difficulty in answering this question revolves mainly around the issue of who is makig the copies that get made when someone activates a link to a site. Many argue that the owner's computer authorizes all the copies, so no one else is infringing. Others reject this view and argue that the requestor's machine makes the copy. Somehow it seems quite odd that infringement could hinge on such a hypertechnical aspect of computer technology.
4. Do I need permission to create a page that serves as a reference to whole articles, booklets, and sections from books from a variety of different sources. What if people think I am the owner or author of all this material? Do I have to go to any special efforts to make it clear that such references are just pointers?
It would be best to identify each resource with some reference to its source. Even then, there are many who do not yet understand the potentially independent nature of “links.” It’s just something people have to learn about.
5. Is a letter posted to the Web considered an "open letter?" Can it be republished without the author's permission?
Unless the author notes otherwise (in a statement such as, "I hereby dedicate this work to the public domain"), all works on the Web are protected by copyright just as print works would be, from the moment of their fixation in a tangible medium of expression. Thus, a user would need permission from the author to republish a work.
Our ability to use Web documents in the normal fashion, that is to browse them, to download personal copies and perhaps to forward a copy to a friend, hinges on the terms of an implied license. Implied licenses are based on the reasonable expectations of the owner of the work. It is reasonable to expect the actions mentioned in this paragraph. It is not reasonable to expect to see your letter published in the New York Times, unless you sent it to the New York Times yourself.
6. Is it ok to copy a news article that was posted to a site like America Online or to a public electronic newstand and distribute it to a listserv for whose subscribers the article would be timely information?
News articles are completely protected except for their facts, which aren't copyrightable at all.
Reposting something to a listserv constitutes distribution, and depending on the size of the list, it could well be a public distribution. This would fall within the exclusive rights of the copyright owner. So, we have to look either for an exemption from liability in the copyright law, to the terms of our "implied license" to use things that are available online, or to the terms of an explicit license with a service provider such as America Online.
Snipping small parts of an article is more likely to be fair use than taking the whole thing. Reposting to a limited group is more likely to be a fair use than reposting publicly. You get the idea here.
The terms of our implied license to use things that are posted electronically are derived from the reasonable expectations of copyright owners. It is quite reasonable to expect that readers will browse, download for personal use and maybe forward to a few friends. It does not seem reasonable to expect that something will be forwarded to hundreds or thousands of people, without asking.
Finally, America Online's license probably speaks directly to this point. I am not a subscriber, however. I would suggest that anyone who is should read the contract carefully before reposting materials found there.
As an alternative to reposting entire articles, consider providing the URL in the list post. Most people can copy and paste it into their browsers with ease. This would eliminate your liability for infringement for copying.
1. May I make a copy of software licensed to the University and take it home in order to do University work on my home computer?
Copying licensed software to do work for the licensee may be expressly authorized in the license agreement, as is the case with some WordPerfect software. Otherwise, it is not permitted. Even under "site" licensing, the owner licenses the user to use the software on any computer at the site and the use of the software off the site is not generally permitted.
2. May I make more than one backup copy?
Section 117 authorizes "the making of another copy . . . for archival purposes only . . ." Section 117 also advises that "all archival copies" should be destroyed if possession of the original ceases to be rightful. This language arguably contemplates more than a single backup copy; nevertheless, the backup function is adequately performed by one backup at a time. There is controversy as to whether there is a right to make a copy of the archival copy if something happens to the working copy in order to have a backup to the archival copy, or whether the first (and only) backup copy must be used without additional backup until another original can be purchased.
3. May I copy software that is on a System or University network onto my hard drive, so that I can still run such programs in case the network goes down?
The software licensed to the University and System for use on computer networks may be licensed under special agreements. If the agreement includes the right to copy the software onto all users' hard drives as a precaution against system failure, then such copying is with permission. Otherwise, the answer is unclear since such copying is subject to the controversy over how many backups are permitted by law, as described above.
4. May I put a program that is licensed for a single central processing unit on a network?
No.
5. May I put a program that is licensed for a single central processing unit on a network for 2 days for the purpose of permitting network users to evaluate it and compare it to other software that is already on the network?
If you could prevent downloading, this would likely be a fair use. In fact, many software vendors will send you a time limited copy of software for this very purpose. Check with the vendor.
6. Once I have purchased a software program, why can't I do whatever I want with it?
Making copies of copyrighted materials is one of the exclusive rights of the copyright owner. What you have purchased is the right to use a single copy of software, not the copyright itself. You may only acquire rights in the owner's copyright by permission or in a license agreement. Copyright rights in software are rarely sold to end users like tangible property; they exist in the copyright owner, not in the individual tangible copies of the software. The software can only be used in ways that do not infringe upon the rights that the owner of the copyright has retained.
7. Would the University or System defend an individual accused of infringement on University campuses or System offices?
The System Policy sets out guidelines for its responsibility if an individual is charged with alleged copyright infringement. Generally, the System will defend an individual who has followed System Policy.
8. Is it a fair use to make a copy of the screen display generated by a software program for the purposes of illustrating something about the software to students? What about for a commercial purpose?
This probably would be a fair use for educational purposes, but probably would not be fair if you were incorporating these images into, for example, commercial user documentation. Under the fair use analysis, the cumulative numbers and graphic nature of the screen displays, along with the for-profit character of the use would all weigh against fair use.
1. Do students own works that they produce while at U.T.?
Yes. Copyright law says that authors own their works. 17 USC Section 201. The U.T. Regents' Rules also speak to the ownership of copyright protected works and they specifically do not mention undergraduate students; the Board of Regents does not claim any rights in the copyright protected works of undergraduates. Regents' Rules, Part Two, Chapter XII, Section 2. Graduate students, on the other hand, are usually employees and they use considerable amounts of University resources. The University reserves the right to assert an interest in their inventions, but is silent on their scholarly works. So far the University has not asserted an interest in a Graduate student's intellectual property that was not an "invention" but rather a work of art, a book, an article, a musical or dramatic work, etc.
2. Do students own works they create as part of a class?
Yes; see the answer to question 1 above.
3. Do students own works they create as part of a student organization?
Yes; see the answer to question 1 above.
4. Does the University have an ownership interest in student produced works of art, video or music?
No; see the answer to question 1 above.
5. Does the funding source for equipment (student services fees monies versus University revenues or state tax dollars) used by a student to create a work change who owns the work?
The student owns the work regardless of whether he or she used University or state funds in the production of the work. There could be an unusual case where a student used extraordinary (expensive) resources of the University, like a supercomputer or something really expensive, such that might give the University a reason to want an interest, but it would have to work out such a deal with the student. I don't think it would happen automatically.
6. Do students own their Web spaces? What does the Regents' Rule about not using University resources for private financial gain mean?
While students own and are responsible for the copyrightable works placed in their Web space, the actual computer disk space is owned by the University. The Regents' Rules limit what students, faculty and staff may do with University resources. The University's mission is education and research, not commerce. If you want to sell things, you should use your own resources, not the state's resources that are dedicated to another purpose.
It is interesting to note that, according to legend, Michael Dell started out selling computers out of his dorm room. He eventually left academia, however, and became a respected commercial success. (;-)
7. If a student pays for the use of disk space or computer time, would the student own the disk space?
The payment made for the use of disk space is not a sales price, but a service fee. The student buys a service, not title to the space on the disk. Think in terms of monthly telephone service, you pay for the right to use the telephone lines when you pay your monthly phone bill.
8. Does the University own any interest in a student's Web space?
The University owns the medium; it does not purport to own copyrightable work placed on/in the medium.
9. If a student creates a work at home on his own time and computer to be placed on their Web space, can the University claim any interest in the work?
The student owns the work placed in his Web space, regardless of whose resources were used to create it; University owns the actual disk space used to house the Web space.
10. Do student employees of the University own their work?
Student employees are just like all employees, including me, other administrators, staff, landscape gardeners, electricians, etc. All employees are subject to the part of the copyright law called the "work-for-hire" law. 17 USC Section 201(b) and Section 101 definition of work-for-hire. It says that unlike what would be the case ordinarily (ordinarily, an author owns his or her work from the moment of its fixation in a tangible medium of expression), if the author is an employee who creates a work as part of what he or she is supposed to do for the job (creates a work within the scope of their employment), that work will belong to the employer. For example, if a student works in the library and writes a computer program to analyze usage of a particular group of journals, that program would probably belong to the University (depends on the nature of the student employee's job description). On the other hand, if the student employee writes a novel in her spare time, the student employee owns the work, assuming that writing novels has nothing to do with her job description.
11. If a student is hired by the University, does the University own his work?
The University will own only the works created as part of the student's job.
12. I had a book published recently that included scans of many of my personal slides. Now I would like to do something else with the slides (scan them, manipulate the images, distribute them commercially). Does the publisher have any more than just the right to publish the images that resulted from its scans?
In order to answer this question, you will have to (gasp!) read your contract with the publisher. You originally possessed the right to do all the things you indicate that you plan to do with your slides, but you may have given up those rights, or some part of them, in your contract. Look in the part of the contract that discusses the "grant of rights" or words to that effect. If the contract contains an "assignment" of copyright, you have given away the whole bundle of rights and can't do a thing with your slides without asking permission from the publisher.
On the other hand, the contract may grant the publisher no more than the right to publish the images in the one edition that was the subject of the contract. That would leave you with all the rights you need. The contract may give the publisher something in between these two extremes. Many people do not realize that such terms are negotiable; you may want a different arrangement than is standard for the publisher. You just have to ask.
13. I am the editor of a journal. For years we have accepted contributions to our journal without a contract with the authors, so I'm not sure what our rights are. Now I have been approached to put back issues of the journal online. Can I do this, or will I need to get permission from all the (hundreds of) authors?
When there is no contract between an author and a publisher, the publisher has an implied license to do what an author would reasonably expect the publisher to do. Implied licenses are narrowly construed, that is, a court would interpret such a license as narrowly as possible to achieve the minimum expectations of the parties. Thus, whereas it would be reasonable for an author to give a publisher permission to publish an article one time in a single issue of the journal, it would not be reasonable to expect that subsequent publications, and online publications were part of the deal.
You will have to get permission from your authors to put their articles online.
14. I am currently trying to develop an electronic library for my area of research. It is my intention to post papers provided by the original authors in this library. In most cases the copyright has been transferred to the publisher. May I do this without the permission of the publishers?
Once an author has assigned copyright to a publisher, the author no longer has the right to authorize copies or distribution. You may find that some authors retain copyright, or retain a non-exclusive right to distribute electronically, so it may be worthwhile to check with your authors about this. Otherwise, you would need the publisher’s permission.
15. May I use some of my students’ compositions within the curriculum I am preparing to teach a summer college course? Do I need to get parent permission from students who are under eighteen years old? Does the permission need to include a statement to release their rights to profit since my curriculum may become copyrighted? Is a simple credit saying “used with permission” enough?
All authors, regardless of their age, own copyright in their works from the moment of fixation in a tangible medium of expression. Thus, you must obtain their permission to use their works unless the use would be a fair use. I assume you intend to make a commercial product, but even if you did not, the same kind of permission would be needed. It need not say anything about “rights to profit.” In fact, one of your students could conceivably go on to profit from his or her work in some way you cannot now imagine, but that should not interfere with your undertaking. You do not need to extinguish the students’ right to profit. “Used with permission” is appropriate, but if someone wants you to credit them differently, you should respect their wishes. Under-aged copyright owners should have their legal guardians sign along with them.
16. I secure permission to reprint course packets at our university copy center. Sometimes a professor will want to use a draft version or other pre-publication version of a paper that has subsequently been published. Do the rights typically assigned to publishers include control of drafts and working versions of the published paper? In cases where an author has no objection to dissemination of early drafts does he/she have the right to give permission or is this something that isn’t addressed as law but is left for individual contracts to specify?
The copyright in the original drafts would not normally be lost by assignment of copyright in a later version, which is in essence a derivative work. Earlier drafts could, however, be addressed in a contract and copyright in those drafts could be either assigned or retained. It would be best to refer to the contract at issue to determine the author’s rights.
1. Do you know of any legal justification that a museum might have for collecting damages from an individual who took her own photographs of Renaissance paintings in the museum when photography by visitors was permitted, if the photographer later put the images on the Internet?
Liability for infringement will depend on the exact nature of the museum’s policy. Photography permitted for any reason is not the same as photography permitted for personal use only, for example. A policy with no qualification and a painting unprotected by copyright would leave the museum no basis for alleging damages against a photographer.
1. How does copyright law respond to efforts to use (or abuse) copyright not for profit but to stifle speech?
Fair use embodies two different kinds of activities, though the line between them is not always clear. Reliance on fair use to quote from a work for comment or criticism, or to parody a work, implicates the 1st Amendment more so than copying an article from a journal for distribution to a class. The reason this line isn’t crystal clear is that the use of the article in an educational context could well be for critical study, thus invoking the comment/criticism purpose as much as the convenience of the reader purpose. Convenience is more susceptible to the argument that “if I can license it to you, you should have to pay.” In that context, permission isn’t really an issue; the owner does not want to prevent anyone’s use; rather, he only wants the user to pay for the use.
Fair use shall continue to play an important role where permission is the real issue. Its role in other contexts is less certain.
2. Can the creation of a derivative work be a fair use?
Section 107 applies to all of the rights of the copyright owner. The analysis would be similar to the analysis for making a copy. For example, a derivative made for private use or study, comment, analysis, etc., should be fair.
3. Might the principle of estoppel be applied to the use of images made for teaching from copyrighted published sources when this practice has not been challenged for more than 60 years in the U.S.?
Estoppel usually works where there is some affirmative action or promise not to take action, and even where there has been a prolonged failure to take action. But there are a number of things that can change that might put one on notice that "the deal is off."
As the facts underlying the "agreement" change (by agreement, I mean the course of action that seems to reflect a tacit agreement that some behavior that is otherwise unacceptable is actually ok), either one side or the other may become unhappy with the status quo. So long as there are warnings, not necessarily explicit ones, that what once was permissible is no longer so, then "from this point forward" reliance on the old deal becomes less and less reasonable.
First the photocopier and now the electronic environment are examples of changes that have had the effect of upsetting implied copyright infringement deals. If significant facts change, and everyone knows it, and there are even explicit warnings (for example, high profile expressions by the AAP of it's point of view about what is and is not fair use; fair use court cases where publishers have won) a court would probably find that publishers could not be estopped from pursuing a current claim (ie, infringement taking place right now) because the facts had changed too much, publishers' opinions about the propriety of the behavior had changed too, and users had been warned of these changes in the facts and in the attitude of the rights holders.
1. May we put items on reserve for faculty members even if we do not have the items in our collection? For example, sometimes we must order an item through interlibrary loan or the faculty member may bring in his or her own original or photocopy of a work. Is this ok?
It is possible that your concern could stem from provisions in Section 108, which covers library copying. That provision does address issues of ownership of copies in a number of places; however, the reserve function is not generally considered to be authorized under Section 108. Instead, as an adjunct to classroom activities, reserve items are usually analyzed under the provisions of Section 107, fair use. The fair use provision contains nothing that would indicate whether the source of material to be duplicated must be owned by the institution making the copies, although that is probably most often the case. If the copy you are asked to put on reserve has been lawfully made, and fair use copies and interlibrary loan copies made in accordance with copyright law and the CONTU Guidelines would be lawfully made, you shouldn't be concerned. (The CONTU Guidelines are reproduced in full in Copyright Office Circular 21, "Reproduction of Copyrighted Works by Educators and Librarians." They are located near the end of the document.)
2. If we make a copy for a faculty member through interlibrary loan and he puts it on reserve, have we complied with our requirement that the copy must become the property of the requestor? I am especially concerned that students may make copies of the copy and that somehow this possibility "taints" our interlibrary loan process.
So long as you had no reason to believe that an interlibrary loan copy was being made for reasons other than private study, scholarship or research (and assuming you have complied with the other requirements of Section 108), you have discharged your duty when you turn the copy over to the faculty member. So, perhaps the question is whether placing material on reserve is within the ambit of private study, scholarship or research. It probably is not private study, if private means personal. On the other hand, it seems likely to be scholarship and could well be research too, unless the word "private" applies to all three of these words and not just to "study." Of course, there is no guidance on the intended meaning of these terms, though they are broad enough to encompass normal academic activities unless one wants to construe them as narrowly as possible. Until we have clearer reason to construe them narrowly, I would not recommend that we do.
The electronic reserve guidelines currently under negotiation as part of the Fair Use Conference established by the NII Task Force on Intellectual Property Rights in the Electronic Environment contain an encouraging sign in this regard: they actually speak to this issue and say that so long as either the institution, the instructor or another unit of the institution possesses a "lawfully obtained" copy, the material can be placed on reserve. I have asked the negotiators for clarification of the meaning of lawfully obtained, but have not yet received it; however, giving it its normal meaning, and consistent with the way similar words ("lawfully made") are used in other parts of copyright law, it would mean "created in accordance with copyright law" which would include fair use and interlibrary loan. It would seem that if the negotiators meant a commercially purchased copy, they would say so.
3. It appears that placing materials on reserve for one semester is generally permitted, but most guidelines suggest that for successive semesters, the faculty member or library should get permission. I agree with this if it is the same faculty member requesting the same material for the following semester's class, or even the following year's class (having skipped a semester). But, should this also apply to a different faculty member's request, or a request that comes several years later, rather than just a semester or two later?
The principle that seems to underly the idea that reserve is only fair use for a while is that if you know you are going to need the work repeatedly, semester after semester, or over an extended period of time even if you plan to skip a semester, you have sufficient time to ask for permission. Frankly, there is no basis in the fair use statute for this idea; it contains no temporal limitation. Nevertheless, all of the various fair use guidelines that have ever been negotiated among interested parties in various contexts, all include a temporal limit: the new electronic reserve guidelines nearing completion in CONFU; the multimedia guidelines also nearing completion; the old 1976 Classroom Guidelines; the old Off-air Taping Guidelines; and the ALA 1992 Guidelines. Thus, where you have such advance warning, it would be prudent to ask for permission. But, where the request is from a different faculty member or from the same faculty member but years later, the logic of the limit does not seem to apply.
4. I am an art history librarian who is asked to make slides from photographs in books on a regular basis. If the same images are available commercially as slides, we try to acquire them. Sometimes, however, they are not available at all, or the version that is available is unacceptable to the faculty member. In this case is it ok to reproduce the images as slides for our collection?
This question is very hard to answer. It isn't a "filling a patron's request" question, since the slides will not become the property of the requestor. It isn't strictly a reserve question, since you may make the materials available indefinitely. It could be analyzed under Section 107, fair use, just as a reserve request would be analyzed, but the fair use guidelines that apply to reserve use would not work for your purposes because they incorporate temporal limits (usually for one semester or one year).
Further, even within the straight statutory fair use analysis (without reference to any guidelines), images are hard to analyze because they represent someone's "whole work" even if they are only part of the book from which you will be taking them. And, they are creative rather than factual. Thus, two of the first three factors of the analysis would weigh against fair use.
The new (not yet finalized) multimedia guidelines as well as those developed for the use of digital images (also in draft form) indicate that it would be permissible to incorporate up to 15 images from one book into a multimedia work for educational purposes, or digitize and make available such images under certain circumstances, but again, if you plan to make these images a permanent part of your collection, you would run afoul of the temporal limitations contained in the guidelines.
Thus, it appears that if you are willing to accept a temporal limit on your use of a reasonable number of reproductions from a book, you could rely on fair use analogizing either to the reserve guidelines or multimedia guidelines. If you wish to make the slides permanently available, seek permission.
5. I am in charge of the Reserve Room of an academic library and have begun asking faculty to sign the following statement when placing photocopied material on reserve:
“I attest that these are legal copies and that if the copyright law requires that I obtain permission to copy this material I have done so.”
If a faculty member has signed such a statement, ought it to make any difference to me whether the articles are in a packet or are each in their own individual folder?
Your question refers to the “anthology proscription” from the Classroom Guidelines, but the Guidelines are not actually the law. Even to the extent that they may be useful, each of their elements is just one factor to be weighed and balanced - no one factor is determinative. More importantly, however, your statement is not adequate to prevent university or library liability if the faculty member has not in fact complied with the law: the university could be liable for contributory copyright infringement or liable under theories of agency (employer/employee relationship).
Since it is the university that will suffer (be sued) if its faculty members violate copyright law, it makes sense for the university to help faculty determine when permission is needed and obtain it when necessary. The new electronic reserve guidelines emerging from negotiations at CONFU will make this job easier.
6. Our library makes slides from images in books for the use of our faculty members in the Art History Department under conditions that we feel qualify as fair use. May we add these slides to our collection if the faculty member wants to use them in the future?
If viewed as an example of increasing your collection through the exercise of fair use, this practice would put your library on thin ice: the creative nature of images and the fact that in many cases each image would be considered a whole work causes the fair use analysis to favor the copyright owner. If analyzed under a reserve room analysis in accordance with fair use, such slides should only be available for the semester. A time limit helps to strengthen the fair use argument.
1. May a library fill a request for photocopies of articles from a remotely located student registered with the library's institution for a distance learning class?
Section 108 gives libraries the right to make copies of articles for their patrons for educational purposes. The copyright law does not define what a patron is. Thus, the activity you describe would appear to be fine.
As distance learning becomes a more common part of the educational landscape, these issues will have to be tackled in a more comprehensive manner. For example, many universities are beginning to link their libraries electronically to facilitate more economical distribution of materials to the state's or region's population.
1. Would the library be responsible if a student uses library recording devices available in the listening labs to copy commercial audiotapes?
Section 108(f) protects the library from liability for unsupervised copying so long as the library places a warning by its machines capable of duplication about the possible application of copyright law to the copying. This exemption applies to all kinds of duplication: photocopying, recording, computer duplication.
The students are probably exempt from liability under the Audio Home Recording Act, 17 U.S.C. 1008, so long as the duplication is not for profit.
1. How does the "rule of five" apply to a library or system with multiple branches? Is each branch separately limited t five photocopies from a given journal or does the limit apply to the system as a whole?
The CONTU Guidelines do not establish "rules" in the sense that laws and regulations do, but rather suggestions, or guidelines. Thus, the "suggestion of five" would be applied as follows, depending upon how your libraries operate:
2. May more than one of the five articles requested from a periodical title be from the same issue?
So long as the articles are not being requested for one person, this would be ok. The prohibition on multiple articles from the same issue of a periodical applies to library copying for patrons who request copies under Section 108(d), not from the interlibrary loan provision, Section 108(g), and the CONTU Guidelines. Keep in mind also that if the journal is unavailable at a fair price (out of print), libraries are permitted to copy the entire work under Section 108(e). The CONTU Guidelines do not apply to such requests at all.
3. May a library respond to a request for a thesis by supplying a photocopy of the entire document, assuming that the requesting library has paid the royalty that might be due?
Yes. The requesting library is always responsible for compliance with either copyright law, the CONTU Guidelines, or both, as the case may be. Your form should provide a place for the requesting library to indicate its compliance.
4. Our ILS staff keeps a current list of journals available to our patrons electronically. They check all incoming requests against the list and return ILL requests to patrons when the documents requested can be obtained electronically - just as in the case of requests for documents in journals for which the library has a print subscription.
If the request were for an article published within the past five years (covered by CONTU) from a print title currently subscribed to but not subscribed to the year the requested document was published, we would not monitor copyright when we ordered the document via ILL. However, under the same circumstance with an electronic subscription, if the title was currently locally available only in electronic format, but not for the issue or article in question, we would monitor copyright when obtaining a copy through ILL. Thus, we are treating electronic availability differently from print availability. Should we consider electronic access exactly the same as a print subscription?
Yes, unless the license providing access somehow modifies library rights under Section 108.
1. A library subscribes to and maintains a database of copyrighted publications on a single workstation that is accessible to the public. The license agreement says:
“you may not:
reproduce, publish, distribute, sell or otherwise use any data retrieved from or software contained in the Product in any manner whatsoever which may infringe any copyright or other proprietary interest of [the database producer], any third party supplier [the publishers of the original articles?] or any other third party.
Extract or download data from the Product other than for non-profit education purposes and other uses that are within the “fair use” standards set forth in Section 107 of the U.S. Copyright Act of 1976, as amended, or for use of a reasonable number of copies of extracts inside your organization.”
Individual users search for, locate and print out documents on the database. The workstation is unattended, and there is no intervention from library personnel except for occasional user assistance. A user wants to print a single copy, using it as a master to make photocopies as needed to give to individuals for whom the content is educationally relevant, but where the individuals are not actually students in a class. Would this be permitted by the license?
The contract has good language. It says that we have to abide by the law, and acknowledges the existence of things we can do that are in accordance with the law. We must decide whether the use the person wants to make of the data would be within the bounds of fair use. I would say yes, so long as he or she is not making lots and lots of copies (like standing on the corner and distributing the article). The non-profit educational purpose is very important to the analysis.
1. May a library circulate books that come with computer diskettes or other media such as 35mm slides? I am concerned that patron copying could result in liability for the library.
Slides may be circulated just as the library would circulate other materials.
Section 109 of the Copyright law includes an exemption allowing nonprofit libraries to circulate software provided the following notice of copyright is affixed permanently to each disk or its permanent package loaned to patrons:
“NOTICE: WARNING TO COPYRIGHT RESTRICTIONS
The copyright law of the United States (Title 17, United States Code) governs the reproduction, distribution, adaptation, public performance, and public display of copyrighted material.
Under certain conditions specified in law, nonprofit libraries are authorized to lend, lease, or rent copies of computer programs to patrons on a nonprofit basis and for nonprofit purposes. Any person who makes an unauthorized copy or adaptation of the computer program, or redistributes the loan copy, or publicly performs or displays the computer program, except as permitted by Title 17 of the United States Code, may be liable for copyright infringement.
This institution reserves the right to refuse a loan request if, in its judgment, fulfillment of the request would lead to violation of the copyright law.”
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Last updated: August 10, 2001