It would be nice if copyright was a clear-cut-no-ambiguity issue…Welcome to the real world.
Many corporations have partnered with libraries all around the world in an effort to digitalized and make available, thousands of works for the public.
Conversely, long term copyright laws keep many of these works unavailable to the public at large.
A balance that is admittedly dynamic must be reached between these two opposite sides of the issue.
What is being done?
First better tools and methods are being developed to accurately identify those works that are actual part of the public domain.
Second, though risky, institutions are beginning to take a chance in using orphan works.
Using Material from the Internet
Copyright law covers material you find on the internet.
To many this is outdated but it takes time to modify the law.
These works may not even have any notice of copyright and still be protected because the law has changed in that simply putting pen on paper or hitting ‘save’ on your keyboard creates a copyright.
Anytime someone places something on the internet there is the knowledge that this material will used and shared somehow. This is an implied limited license.
The problem is that these are very vague and unclear.
Also some may choose to provide express licenses by including a Creative Commons license in their works.
The role of fair use
Fair use played an important part in the analog world but its role in its digital counterpart is less than clear.
Yet with the addition of implied and express licenses we as educator can have a broader set of protections for our use in the educational field.
Fair use defined
Fair use is so hard to define.
But there is hope in great part for the organized efforts yielding for instance Fair Use Best Practices statement and the availability of material with Creative Commons licenses.
Yet we must never lose track of harsh penalties for infringement.
A court can award up to $150,000 for each separate act of willful infringement. You will be also liable if you unknowingly broke the law, but the amount will change.
But even here there is what is called the good faith fair use defense where it states that you acted in belief that you were following the fair use policy.
Do I need permission then? Ask yourself: Is the work protected? The following are not protected.
Works that lack originality
Works in the public domain
US Government works
Ideas, processes, methods, and systems described in copyrighted works.
If the work is protected, has your educational institution already licensed rights for me to use.
Do I need permission then? Is the work available freely online, and thus I am covered by an implied license? Is the work under Creative Commons? If you don’t have express or implied right do I want to exercise one fo the owner’s exclusive rights?
Make a copy
Use a work as the basis for a new work
Electronically distribute or publish copies
Publicly perform music, prose, poetry, a drama, or play a video or a CD-ROM.
Publicly display an image on a computer screen or otherwise.
Is your use exempt or excused from liability for infringement?
Specific, narrowly tailored Exemptions Library’s special rights
Archiving lost, stolen, damaged or deteriorating works
Making copies for library patrons
Making copies for other libraries’ patrons
For Fair use exemption, consider how you plan to use the material
Coursepacks, reserves, course management systems, and other platforms for distributing course content.
Don’t forget to use the four fair use factors
What is the character of the use?
What is the nature of the work to be used?
How much of the work will you use?
What effect would this use have on the market for the original or for permissions if the use were widespread?
The TEACH Act
Copyright laws has an additional set of rights in addition to fair use to display or perform others’ works in the classroom. These rights are in Section 110(1) of the Copyright Act and apply to any work, regardless of the medium.
Although these apply mostly to face-to-face instruction there are efforts to extend these rights to distance learning.
It is promising that these rights together with fair use will greatly enable, effective distance education.
TEACH Act Checklist
Getting permission can be difficult but you can try the Copyright Clearance Center. If the work is in their database you can get permission instantly.
There are other websites/agencies for foreign works.
There are specific websites for image archives, music performance, play rights, and movies. Remember that if you are part of an educational institution, such as a university you could be covered by their license agreement.
What if you don’t find the owner? No amount of unsuccessful attempts to find the owner will exempt you from the law if the owner of the copyright turns out and wants compensation. The risk is yours; use your common sense.
Citations Georgia K. Harper. (2001, 2007). The Copyright Crash Course. In University of Texas Libraries. Retrieved September 3, 2011, from http://copyright.lib.utexas.edu/.