Copyright Guide

Scenario 1:
An instructor wants to make a photocopy of a journal article to distribute to each student in the class.

1. Is the material protected by one or more copyrights?
The article is protected by copyright; it was published in 1986 and includes a copyright statement.

2. Is the use one of the exclusive rights of the copyright holder?
Reproducing or copying works is an exclusive right of the copyright holder.

3. Is the use an exception to the exclusive rights of the copyright holder?
This use is not one of exceptions listed.

4. Is the use one of the common education material types or uses?
Multiple copies for classroom use is allowed under the 1976 Guidelines for Classroom Copying in Not-for-Profit Educational Institutions with Respect to Books and Periodicals. However, this exception can only be applied under the following conditions:

• only one copy for each student is made,
• the decision to use the material was spontaneous and there was not enough time to request permission,
• the copies were made for only one course,
• not more than one copy was made from the same author,
• not more than three copies were made from periodical volume,
• no more than nine instances of multiple copying of journal articles were made during the same course in the same semester.

5. Does the use of the material weigh in favor of the four fair use factors?
If the conditions above (item 4) cannot be met, the instructor should analyze the use of the material using the four fair use factors.

Scenario 2:
An instructor wants to scan a journal article to put into a Moodle course.
1. Is the material protected by more one or more copyrights?
The article is protected by copyright; it was published in 1992 and includes copyright statement.

2. Is the use one of the exclusive rights of the copyright holder?
Reproducing works is an exclusive right of the copyright holder.

3. Is the use an exception to the exclusive rights of the copyright holder?
This use is not one of the exceptions listed.

4. Is the use one of the common education material types or uses?
Although this is “distance learning,” the TEACH Act only addresses the use of audiovisual and dramatic music works.

5. Does the use of the material weigh in favor of the four fair use factors?
The fair use exception could be applied here. Before performing the fair use analysis, the instructor may wish to look for an electronic copy that is already available through a licensed database at the Library. If there is no copy available, the instructor should use the Checklist for Fair Use, analyzing, weighing and balancing all four factors.

Purpose - Under the first factor, purpose, this article will be used for teaching, in a non-profit educational institution, with restricted (password) access. This favors fair use.

Nature - The nature also favors fair use, because the work is non-fiction, published, and important to the educational objective of the course.

Amount - The amount may oppose fair use because the whole work is being reproduced.

Effect of the Use Upon the Market - The effect of use upon the market is mixed. The use opposes fair use because the instructor is replacing a sale of the item, the article may already be available in a licensed full-text database at the Library, and the instructor is making it accessible on the web. However, the use favors fair use because it is a lawfully acquired copy and there probably is not a significant effect on the market if it is used once.

When balancing and weighing the four fair use factors, scanning the articles and making it accessible through Moodle would most likely balance in favor of fair use if the article is only used for one semester. It is a good idea to retain the checklist and document your fair use analysis. Alternately, the instructor can always request permission from the copyright holder.

Scenario 3:
An instructor wants to copy multiple journal articles and book chapters to create a coursepack to be sold to students by a local print shop.

1. Is the material protected by one or more copyrights?
Each article must be examined and analyzed to determine if it is protected by copyright. See How Do I Know? in this document.

2. Is the use one of the exclusive rights of the copyright holder?
Reproducing works is an exclusive right of the copyright holder.

3. Is the use an exception to the exclusive rights of the copyright holder?
This use is not one of the exceptions listed.

4. Is the use one of the common education material types or uses?

This use is addressed in the Guidelines for Classroom Copying in Not-for-Profit Educational Institutions with Respect to Books and Periodicals. Making multiple copies to replace anthologies, compilations or collected works, i.e. coursepacks is clearly prohibited, unless the instructor has received permission from the copyright holder to copy and distribute the materials. The instructor has two options. The Guidelines do permit making multiple copies, but only nine instances per semester per course are allowed, and the articles should be distributed individually to the students. Or, the instructor can seek permission from the copyright holders for each article or chapter for compiling the coursepack. The instructor can contact each copyright holder directly or use the Copyright Clearance Center to assist in this task. The copyright holder may assess a fee.

5. Does the use of the material weigh in favor of the four fair use factors?
Courts rulings show this use to not weigh in favor of the four fair use factors.

Scenario 4:
An instructor wants to capture an image from the Internet and place it on her own web page.

1. Is the material protected by one or more copyrights?
Unless the instructor is certain the image was obtained from a “free or public domain clip-art” web site, the instructor should assume that the image is protected by copyright. Creative works are automatically protected by copyright.

2. Is the use one of the exclusive rights of the copyright holder?
Reproducing this image is an exclusive right of the copyright holder.

3. Is the use an exception to the exclusive rights of the copyright holder?
There are no exceptions or accepted educational guidelines that address this type of use.

4. Is the use one of the common education material types or uses?
There are no exceptions or accepted educational guidelines that address this type of use.

5. Does the use of the material weigh in favor of the four fair use factors?
The instructor must analyze, balance and weigh this use using the Checklist for Fair Use.

Purpose - The purpose may be questionable, if the web site is a personal website that is not for research, scholarship, comment, reporting, or teaching. Additionally, fair use is opposed if credit is not given to the copyright holder.

Nature - The nature of the image is creative, which opposes fair use.

Amount - The amount, assuming the instructor uses the entire graphic, would also oppose fair use.

Effect of Use Upon the Market - Making a single copy will not have a significant effect on the market, and there is no established permissions market for images. However, the image was made accessible on the web, which opposes fair use.

Based on four-factor analysis this use would oppose fair use. The instructor should seek permission to use this graphic or find another acceptable graphic that is in the public domain.

Scenario 5:
The instructor wishes to capture an image from the Internet or scan an image from a book and put it in her Moodle course.

1. Is the material protected by one or more copyrights?
Unless the instructor is certain the image was obtained from a “free or public domain clip-art” web site, the instructor should assume that the image is protected by copyright. This is not one of the categories of materials that are ineligible for copyright protection.

2. Is the use one of the exclusive rights of the copyright holder?
Reproducing this image is an exclusive right of the copyright holder.

3. Is the use an exception to the exclusive rights of the copyright holder?
This use is not an exception to the exclusive rights.

4. Is the use one of the common education material types or uses?

• This use is addressed as one of the common education material types and uses, specifically in the TEACH Act (see Distance Learning—Performance and Display in this document). The TEACH Act addresses the performance and display of audio-visual works, and includes several conditions that must be met in order comply with the law:
• the image must be directly related to the lesson,
• notice of copyright must be provided,
• the image is only available to students in the class (in a password-protected Moodle class) for a relevant period of time,
• technology is used to prevent reproductions or further distribution, and
• the image was lawfully made and acquired.

The instructor must also be certain that images from the Internet were lawfully placed on the web. In the case of the graphic scanned from a book, the instructor must also determine whether the graphic is already available in a digital form. The instructor should not create a digital form of an analog image if a digital reproduction is available. If all the conditions are met, the instructor may use the image in a Moodle course.

Scenario 6:
The instructor wishes to copy a work of art from a book and to put it online.

1. Is the material protected by one or more copyrights?
If it has been determined that the book is copyrighted, the instructor should assume that the individual graphic is also protected by copyright.

2. Is the use one of the exclusive rights of the copyright holder?
Reproductions, including scanning an image, are the exclusive right of the copyright holder.

3. Is the use an exception to the exclusive rights of the copyright holder?
This is not an exception, since this is not face-to-face teaching.

4. Is the use one of the common education material types or uses?
This may be “online learning,” and could fall under the TEACH Act outlined in the Distance Learning—Performance and Display section of this document. However, in order to take advantage of this exception, the graphic cannot be put online without restricting access to only students enrolled in the class.

5. Does the use of the material weigh in favor of the four fair use factors?
The instructor should apply the four-factor test:

Purpose - The instructor’s purpose for using this image is most likely for teaching and the image is on a non-profit educational institution website. This would mostly like favor fair use.
Nature - The nature of the work is creative, which has been published. This would oppose fair use.
Amount - The amount of the work is the entire graphic from the book, which opposes fair use.
Effect of Use Upon the Market - There may be little effect on the market for the work. However, if the instructor wished to make the image accessible on the web and readily available, this would oppose fair use.

Based on four-factor analysis making this work of art accessible online would not weigh in favor of fair use. The instructor should seek permission to use this graphic or find another acceptable graphic that is in the public domain.

To request permission from the copyright holder, the instructor should start by contacting the publisher of the book that contains the work of art. Although the publisher has received permission to reproduce the work in the book, the publisher may not be able to grant permission to use the graphic because the copyright holder may be another individual. However, the publisher should be able to direct the instructor to the entity they believe to be the copyright holder.

Scenario 7:
An instructor creates a PowerPoint presentation at a scholarly conference. The presentation includes graphics and video clips created by others. He properly cites the source of the graphics and video clips in his presentation. He also distributes PowerPoint handouts of the presentation to conference attendees. The presentation was originally created over three years ago.

1. Is material protected by one or more copyrights?
Copyright notice appears on the graphics and videotape.

2. Is the use one of the exclusive rights of the copyright holder?
Reproductions, including making digital copies, are the exclusive right of the copyright holder.

3. Is the use an exception to the exclusive rights of the copyright holder?
Although the original presentation was created for face-to-face teaching, the presentation is now being used for a use other than face-to-face teaching. These exceptions do not apply.

4. Is the use one of the common education material types or uses?
There are two issues that need to be considered:

• The first issue is displaying the PowerPoint presentation at a conference. This use is addressed in Multimedia Works and Off-the-air Recordings in this document. Educators may perform and display multimedia projects in workshops and conferences. However, there is a limitation on the time period that the materials can be used. The copyrighted materials can only be used for two years. After two years, the presenter must obtain permission for each copyrighted portion.
• The second issue involves the presentation, PowerPoint slide show, and the handouts. The guidelines above only address performance and display of the graphics and video. Making copies or reprinting the graphics in handouts is not addressed in the Fair Use Guidelines for Educational Multimedia (see Multimedia Works and Off-the-air Recordings in this document).

5. Does the use of the material weigh in favor of the four fair use factors? 
The instructor needs to analyze each piece of copyrighted material, graphics and video, using the four fair use factors in order to display the presentation and/or to copy and distribute handouts that include the graphics.

Scenario 8:
A CD-ROM is included in the instructor’s textbook. The textbook that is sold or rented to the students does not include this CD-ROM. The instructor wishes to provide a copy to each student either by distributing copies he has made of his CD-ROM or by making the CD-ROM accessible through Moodle.

Copyright may not be the only issue that needs to be considered here. Further reproduction even in a password-protected Moodle course may be prohibited by licenses and contracts associated with the computer disk purchase. Licenses may restrict distribution or access to the person; i.e. the instructor, who purchased the instructor’s textbook. Textbook Rentals has negotiated some contracts with textbook publishers to make CD-ROMs available to students. The instructor should read the labels and material that accompany the CD-ROM to determine if the CD-ROM can be copied and/or distributed and used by others.

1. Is material protected by one or more copyrights?
Although there may be no licenses or contracts that prevent duplication or distribution through a network, the instructor should assume that the material, text and graphics, on the CD-ROM are also protected by copyright.

2. Is the use one of the exclusive rights of the copyright holder?
Reproduction and distribution are exclusive rights of the copyright holder.

3. Is the use an exception to the exclusive rights of the copyright holder?
Reproducing a computer disk or making it accessible in Moodle is not one of the exceptions. Making copies of computer disks is only permissible as a computer backup copy.

4. Is the use one of the common education material types or uses?
Although this course may be a distance learning course, the TEACH Act only allows “clips in reasonable and limited portions in the environment of face-to-face teaching.” The TEACH Act further states, “Instructors may not provide software online for student’s use in distance education without the expressed permission of the copyright owner.”
Reproducing and/or distributing this CD-ROM does not fall under educational multi-media use, because

• it was not created by the instructor, and
• the CD-ROM is not used in face-to-face teaching.

5. Does the use of the material weigh in favor of the four fair use factors?
If copyright is the only issue that needs to be addressed in order to reproduce or make the CD-Rom accessible, it is likely that this type of reproduction will not weigh in favor of fair use.

Purpose - The purpose would favor fair use since this will be used in a teaching situation in a non-profit institution and access will be restricted to students in the course.

Nature - The work is published, but includes some creative works, so the nature of the work both favors and opposes fair use.

Amount - The amount of the work that is to be reproduced is 100%, and opposes fair use.

Effect of Use Upon the Market - The effect on the potential mark could oppose fair use since the reproduction could replace a sale, be reproduced again, and be used repeatedly.

The instructor should ask permission to reproduce and/or make the disk accessible in Moodle. It may be possible for Southeastern’s Bookstore or Textbook Rentals to negotiate a contract with the copyright owner to make the CD-ROM accessible to a group of students.