Former Committees & Taskforces

General Copyright Questions

When is a work legally copyrighted?

According to the U.S. Copyright Office, “Copyright protection subsists from the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work.”  Further information on copyright and what it means can be found at  http://www.copyright.gov/circs/circ1.html#wci

How do I determine if a particular work is copyrighted?   And how do I determine if a work published in 1947 has had its copyright extended?

All recently developed works are copyrighted, whether officially registered with the U.S. Copyright Office or not – so long as they are sufficiently original to receive copyright protection.  Such was not always the case and the terms of copyright protection have varied over time (see the links in the following question on public domain).  In the United States, almost everything created after April 1, 1989, is copyrighted – with some exceptions.  Publications of the U.S. government, for example, are not generally copyrighted.  The Copyright Office has published a circular that outlines the duration of copyright for various works, located at
http://www.copyright.gov/circs/circ15a.html

Perhaps the critical question is whether a particular work from a particular time period is still copyrighted or has had its copyright extended.  Unfortunately, it is not always easy to determine if that is so.  One can search for more recent editions of works that might indicate a copyright extension.  Also, the Copyright Office does have a search engine that allows users to search for copyright information for books, music, serials, and documents, among other items, of records of registrations and ownership documents since 1978. However, the very most recent (several months) of registrations are not included in that database.  It is located at http://www.copyright.gov/records/   An older, more difficult to use, search system called LOCIS  is also available from that site.

In some cases, it may be necessary to pay to ascertain the currency of a copyright. The Copyright Office will do such searches for a fee.  You can obtain an estimate of such costs at http://www.copyright.gov/forms/search_estimate.html

When is a work in the public domain?

Generally speaking, works published before 1923 are in the public domain, as are most U.S. government publications.  Works published in or after 1923 and through 1963 may be in the public domain if their copyright was not extended.  For a more complete description of public domain dates and the life of copyrights, please see Lolly Gasaway's chart on "When U.S. Works Pass Into the Public Domain" at: http://www.unc.edu/~unclng/public-d.htm or Peter Hirtle’s site at http://www.copyright.cornell.edu/training/Hirtle_Public_Domain.htm

Copyright and the Classroom

What is fair use?

Fair use is a legal principle that defines the limitations on the exclusive rights of copyright holders.
There is no simple test to determine what is fair use.  Section 107 of the Copyright Act sets forth the four fair use factors that should be considered in each instance, based on the particular facts of a given case, to determine whether a use is a "fair use:”

  • The purpose and character of use, including whether such 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.
  • The effect of the use upon the potential market for or value of the copyrighted work.

Only the courts can determine authoritatively whether a particular use is fair use.  Some institutions have attempted to develop guidelines to assist faculty, students, and staff to determine whether a particular application falls under fair use.  The University of Texas has done a particularly good job in this regard.  See: http://www3.utsystem.edu/ogc/IntellectualProperty/copypol2.htm#mm

A checklist you can use to help determine whether a particular use falls under the fair use guidelines is at: http://www.uwex.edu/ces/copyright/

Can I use music from a recording as part of a video being developed for a class project? 

So long as such use falls within the general fair use guidelines, it is possibly permissible to do so.  If there is any doubt, however, the wise course is to ask permission of the copyright holder.  The Music Library Association has developed Fair Use for Educational Multimedia guidelines that are easily understandable and that have been endorsed by many educational and music publishing groups, available at: http://www.lib.jmu.edu/org/mla/Guidelines/Other%20Guidelines/Fair%20Use%20for%20Multimedia.aspx

How do I maintain copyright of classroom materials, particularly online course materials?

Materials developed by faculty for the classroom are generally considered their copyrightable works.  Many online courses, however, require substantial assistance from other university units that might be construed as substantial university support, as announced in the UW System GAPP 27 at http://www.uwsa.edu/fadmin/gapp/gapp27.htm .  

Section I of that document notes:
“In those cases where substantial institutional resources are provided to support the development of instructional materials, however, the UW System may assert ownership or other property interests that should be addressed through specific agreements with the authors and producers of the materials.”

If there are concerns about copyright ownership on the part of the faculty or instructional academic staff member creating the course (be it a traditional or online course), those concerns should be addressed prior to beginning the development of those course materials.  This is particularly true when a faculty or academic staff member may be collaborating with a faculty member at another institution. 

Can I simply link to another web site without seeking permission?

Yes, you may.  However, you may not reproduce portions of that web site on your own site without permission of the copyright owner.   You should also be careful not to “frame” another web site, i.e., putting an independent browser window around the content of another page.   If you are relying on that web site to provide substantial information for users of your web site it is common courtesy to request permission to link to it, if permission to do so is not granted on the site in question.  This can be helpful to the web site owner as it may help provide additional evidence of its value that the web site owner can use to help ensure its continuation.

Can I insert portions of films, music, plays, novels, poetry readings, etc. on my class Web site? [currently being reviewed for possible revision]

Yes, as long as the material is a): part of a class assignment in the course, and not passive background or supplemental or optional reading material such as coursepack materials; and b): mounted on a password-protected Web site such as a course management system (CMS) or library reserve system.  Previous copyright law in this area only addressed face-to-face instructional use of copyrighted materials.  New legislation, the revised section 110 (2) of the Copyright Act, the Technology, Education, and Copyright Harmonization Act (commonly known as the TEACH Act) permits the performance or display of works in an amount comparable to that typically displayed in a live classroom setting.

For example, an educator may show or perform any work related to the curriculum, regardless of the medium, face-to-face in the classroom, with no limits or permission required. Under 110(2), the same educator has to pare down those materials to “reasonable and limited portions" to be able to deliver them to students online.

For further information, see the North Carolina State’s Teach Toolkit: http://www.lib.ncsu.edu/scc/legislative/teachkit/.

Copyright and Personal or Recreational Use

Can I make a copy of a copyrighted work and use the original as an archival copy?  How about back-up copies of software?

Generally speaking, backup copying of audio and video recordings is not permitted.  However, under certain conditions as provided by section 117 of the Copyright Act, back-up copies may be made of software.  The precise term used under section 117 is archival copy but the Copyright Office indicates that term is used interchangeably with “backup” copy.  However, they indicate that privilege extends only to computer programs and not to other types of works.
See  http://www.copyright.gov/help/faq/faq-digital.html  or http://www.utsystem.edu/OGC/IntellectualProperty/copypol.htm for additional information.

When can I legally download music via the Internet?

You may legally download music from the Web when you have the permission of the copyright owner to do so.  There are certain other circumstances when it may be legal to do so under Fair Use principles (see the answer on fair use for further information).   Many music copyright holders – and the industry groups that represent them – have been waging aggressive campaigns to stop illegal downloading.  For a music industry perspective, see www.riaa.com.  For a very basic interpretation of this question in layperson’s terms, see http://mp3.about.com/cs/tipstricks/a/whatslegal.htm   For a list of sources of free, legal music downloads see http://mp3.about.com/od/freemp3site1/.

Copyright and Scholarly Research

When is a work a work “made for hire?”

Most works are considered to be the works of the author.  However, there is an exception when a work is created by an employee within the scope of his or her position or if a work is commissioned under certain circumstances.  Then it is probably a work for hire and the owner of the copyright for that work will be the employing agency or the institution that commissioned the work.  For further information, see http://www.copyright.gov/circs/circ9.html

For information on the University of Wisconsin’s stance on “works for hire,” see http://www.uwsa.edu/fadmin/gapp/gapp27.htm    Rarely is work done by a faculty member considered “work for hire.”