Whether you are an author, a professor, or a student, many occasions will arise when you want to use the copyrighted works of others. This page discusses the main issues to consider when using copyrighted material, including how to determine whether a work is copyrighted, understanding fair use, and deciding whether you will need to ask permission for a particular use.
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Copyright protection arises automatically the moment an original work is "fixed in a tangible medium of expression," in other words, the moment that text is written down or typed, or the moment a song is recorded.
A work does not need to be registered, published, or have a copyright notice on it to be protected by copyright. For works created in the U.S., copyright lasts from the moment a work is created until 70 years after the death of the author, except for works produced by a company/employer in which case the copyright lasts 95 years from the date of publication. Because copyright protection happens so easily, and lasts so long, you should assume that any work you want to use is copyrighted, unless it is very old or produced by the U.S. government.
Copyright has expired for works published in the United States before 1923, which means they are in the public domain. You are free to use or reproduce works in the public domain however you want. In addition, some works published between 1923 and 1963 may also be in the public domain, but this can only be determined on a case-by-case basis. All works created after 1963 are under copyright, except for work produced by the U.S. government, and state constitutions and laws. If you are trying to determine whether a work published during that time period is still under copyright, the Stanford Copyright Renewal Database is a good place to start.
Fair use allows limited use of copyrighted material without permission from the copyright holder for purposes such as criticism, parody, news reporting, research and scholarship, and teaching. There are four factors to consider when determining whether your use is a fair one. You must consider all the factors below, even though all the factors do not have to be in favor of a use to make it a fair one.
The four fair use factors are as follows:
For assistance in analyzing these factors for individual cases, see the Fair Use Evaluator provided by the ALA Office for Information Technology Policy and Michael Brewer.
Just because your use is for non-profit educational purposes does not automatically give you permission to copy and distribute other people's work. While many educational uses may be fair, you will probably need to evaluate your use each time you are reproducing copyrighted material — to show in your class, to hand out copies, to include in your writing, or to post on CTools.
The rules governing use of materials in a face to face classroom are broader than fair use, and those rules give you more leeway as far as what you are allowed to copy, display, and distribute in your classes. You may display or perform a work in your class without obtaining permission or doing a fair use evaluation when your use meets all three of these criteria:
The use is
Uses you are allowed to make include
Because there are no exact rules governing fair use, you have to use your best judgment when deciding whether to post materials to CourseConnect without permission. There is no specific number of chapters, paragraphs, or lines that is certainly fair (or unfair), nor are there specific percentages. Copying a single chapter from a book may be fine, while copying the entire book usually is not. Consider the four factors mentioned above, and try to determine honestly whether your use seems reasonable. You can check your judgment by answering this question: "If someone used this much of my work would I think it was fair, or would I want to be asked for permission?"
One option is to make the material available to your students through library reserves.
Remember that you should always use the password-protection features of CourseConnect and limit site access to participants in your class only.
If the material is already freely available elsewhere on the web, or through library electronic resources, you can also use CourseConnect to direct your students to a link. It is always legal to link to copyrighted material hosted elsewhere.
One goal of fair use is to allow the inclusion of quotations and excerpts in scholarly works without seeking permission. Some people believe that there are hard and fast numbers to determine how much of a work you may legally use – no more than X lines of a song, or no more than Y words of a text – but that is not the case. Every use is different, and must be considered individually.
Writing for publication If you are writing a book or article for publication, your publisher may want you to get permission for the use of all copyrighted material, even uses that you may think are fair. Because every publisher has its own policy on what it considers to be legally safe, it would be impractical for you to try to clear rights before you receive an offer for publication. However, you should be aware that you may be responsible for clearing permissions for publication and that there may be a cost associated with acquiring those rights.
If you are writing a paper for a class and you have no intention of publishing it, you have much broader leeway as far as what you can use. Remember, however, that fair use is a concept in copyright law, and that it does not alter your academic obligation to provide proper citation for works that you use. Copyright infringement and plagiarism are two different things.
The same fair use provisions that protect the use of quotations and excerpts in scholarly writing also protect those uses in scholarly presentations. You may be able to include copyrighted text, images, or videos in your presentation slides.
However, if the conference organizers plan to use your presentation after it is over – for example, if video of your presentation is posted on the conference website, or if the slides are made freely available for download – your ability to include copyrighted work may be more limited. You can generally show more than you can share, and you should clarify these issues in advance so that you have time to clear rights for the copyrighted material in your presentation, create a second version for distribution that does not include the copyrighted material, or choose alternative material that you are free to use.
The Technology, Education, and Copyright Harmonization Act (TEACH Act) says that teachers and students at accredited educational institutions can use works for distance learning without permission under certain circumstances.
and you plan to use copyrighted works in the following ways:
then your use aligns with the Teach Act. For more help, see North Carolina State University's TEACH Act Toolkit, which gives more in-depth information about copyright and distance education.
Works residing on a site that makes no mention of copyright should be presumed to be copyrighted; just because something is freely available on a website does not mean it is in the public domain. If a work is published online with a statement that it is in the public domain, you will have to judge whether or not these claims are trustworthy, keeping in mind that such claims will not protect you should a copyright holder object to your use.
You may encounter works online for which the author or creator specifically grants rights to use them, such as those released under a Creative Commons license. A Creative Commons license allows you to make certain uses of a work without asking for permission, provided you follow the terms set by the creator.
Unless you created the work as part of your job as an employee or under contract as a work for hire, you are the author and the initial copyright holder. However, if you have transferred your copyright to someone else, such as a journal publisher, you are no longer the copyright holder and may not have any privileges to use the work. If you are not sure, you should consult your publishing agreement to see if you have retained any rights.
If you have not retained rights to use your work, then you must treat it like any other copyrighted work — decide whether the use you want to make is a fair use, and if it isn't, then ask for permission.
Students hold the copyright to the academic works they create, such as their papers, projects, theses, and dissertations. There are also privacy concerns related to the use of student work. If you wish to use student work, ask for permission. Student permission and waiver form
There are differences in copyright law across countries. The Berne Convention, signed by 163 countries, requires that countries recognize the works of foreign authors the same way they do those of their own nationals. For example, all works performed or published in the US, are subject to the terms of US copyright law, no matter where they were created originally. Most countries have standardized their copyright terms, so foreign copyrights tend to last as long as U.S. copyrights: the life of the author plus 70 years. When determining whether or not you can make a particular use of a foreign work, you will need to consider the specific circumstances of your case, such as the country where the work originated, whether or not the work is in print, and how you plan to use the work.
Creative Commons is a non-profit organization that created a set of simple, easy-to-understand copyright licenses. These licenses allow creators to mark a work with permission to make a variety of uses, with the aim of expanding the range of things available for others to quote, adapt, and build upon. Creative Commons licenses do two things: They allow creators to share their work easily, and they allow everyone to find work that is free to use without permission. As long as you obey the terms of the license attached to the work, you can use Creative Commons licensed material without fear of accidentally infringing someone’s copyright.
For more information, visit the Creative Commons website.
If you have determined that the use you want to make is not a fair use, you must ask for permission from the copyright holder. See the section on requesting permission to use copyrighted material for more information and sample request letters.
This page was adapted from Peggy Hoon's Using Copyrighted Works in Your Teaching FAQ: Questions Faculty and Teaching Assistants Need to Ask Themselves Frequently, which was released under a Creative Commons Attribution-Non-Commercial 2.5 license.
The information presented here is intended for informational purposes and should not be construed as legal advice.