U.S. Copyright Law and Fair Use: timely review of a timeless concept
Intellectual property is one resource that does not become more scarce as demand for it increases. Indeed, the World Wide Web provides a seemingly infinite amount of space and opportunity for writers to publish, for publishers to dispatch works rapidly to a receptive global market, and for readers, students and researchers to gain access from anywhere in the world to a vast amount of information and knowledge. But what is the value of this property and how can it both be protected and exploited in order to serve the greater good?
U.S. Copyright Law has been around for a long time. Originally enacted in 1790, pursuant to the U.S. Constitution, Article 1, Section 8, to protect the products of intellectual labor, its stated purpose is to promote the progress of science and the arts by balancing the property rights of authors and copyright owners with society's need for the free exchange of ideas. Under the provisions of the Copyright Law, the copyright owner retains the exclusive rights to do and to authorize any of the following: reproduce the work; prepare derivative works; distribute copies of the work; and in the case of certain types of works, to perform, display, and to transmit the work.
These exclusive rights have limitations, without which, the University would be unable to achieve its missions of delivering education and furthering knowledge. These limitations on the exclusive rights of copyright are established in the Copyright Act of 1976, expressly stated in 17 U.S.C. Section 107, and are commonly referred to as fair use rights.
Draft TJU Policy on Fair Use of Copyrighted Works for Education and Research
Academic Information Services and Research (AISR) and the Office of the University Counsel have drafted the Policy on Fair Use of Copyrighted Works for Education and Research, in order to address the ease of digital copying that technological advances have made possible. This policy places the concept of Fair Use into a modern perspective and provides guidelines for the University community in respect to copying, distributing, disseminating or placing on a University web server copyrighted materials.
This JEFFLINE Forum article is a summary of key points found within the Draft Policy on Fair Use. Members of the TJU community may request a complete copy of the policy and appended guidelines and are encouraged to talk with AISR and the Office of University Counsel for further clarification of the policy.
Objectives of the Policy on Fair Use
- To inform and educate the entire TJU community, including faculty, librarians, staff and students, about their fair use rights, and the statutory basis for fair use under 17 U.S.C. Section 107;
- To develop and make available through the Academic Information Services and Research (AISR) administration and the Office of University Counsel, guidelines for delivering print and electronic resources in fulfillment of the University mission within the Library, within the classroom and on University web servers;
- To provide a mechanism for the AISR administration and the Office of University Counsel to make consistent and coordinated decisions related to application of fair use rights in delivering and utilizing copyrighted information to the University community in print format, electronic format or in other media;
- To minimize the potential for copyright infringement by the University and by members of the University community.
Factors to consider in making fair use determinations
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational uses.
- 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.
Fair use cannot always be expressed in numbers or dollars. Rather, fair use determinations must be made by weighing various factors. A determination in one case based on fair use in one setting cannot be considered fair use in others. Each individual use must be evaluated on its own set of facts and circumstances on a case-by-case basis.
Summary of TJU Fair Use Procedures
All copyrighted materials, regardless of medium or format, used in support of the University educational mission are subject to the procedures set forth in the Policy. These procedures for fair use determinations must be followed whenever any member of the University community wishes to: reproduce a copyrighted work; prepare derivative works of a copyrighted work; distribute copies of a copyrighted work; or in the case of certain types of copyrighted works, perform, display or transmit the work.
The activities described below include making print or electronic copies; distributing handouts or electronic copies; disseminating copyrighted materials in any format; or posting copyrighted materials on a University web server.
Copying performed by any member of the University community
In general, a fair use determination will be made by the individual performing the copying.
In cases when it is unclear if copying or other reproduction of the material constitutes fair use, the individual must seek advice from the Office of University Counsel or Academic Information Services and Research.
Copying performed by AISR personnel in performance of document delivery duties
AISR personnel will follow fair use guidelines in making fair use evaluations. In cases when either copyright procurement or Copyright Clearance Center documentation is required, the AISR staff member will perform this function for the requester.
Copying performed by University photocopy, printing, media production, or scanning services
University personnel engaged in any activities where reproduction of copyrighted materials takes place will be required to procure copyright permission documentation from the requester, if it is unclear whether such reproduction constitutes fair use. This documentation will be kept on file by the University department providing the service.
Copyrighted materials placed on University webservers
Copyrighted materials placed on any University web server must be accompanied by a copyright statement. Materials falling outside of the fair use guidelines presented in this policy must be accompanied by documentation of copyright permission. This documentation will be kept on file by the webmaster for each server. Access to all copyrighted course readings must be validated via the JEFFLINE security system.
Ownership of copyright
In the print format, in the electronic format, and in any other media, it should be assumed that all works are copyrighted. The copyright owner may or may not be the author or authors of the work. The duration of copyright varies depending upon the year of publication and the type of copyright ownership. In most cases, only exceptionally old works are likely to be freely available in the public domain.
Notice of copyright
Notice of copyright law or notice of the exclusive rights under copyright law, should be displayed by the copyright owner or by the University, if appropriate. Such a notice is normally placed in a location most appropriate to the reproduction, copying, transmission, or distribution of the copyrighted material. The notice might appear in one of the following places: on print and electronic forms; at photocopy and scanning devices; on materials delivered via Interlibrary Loan or JeffDocs services; and on materials delivered on University web servers.
Implementation of the Policy on Fair Use
AISR, working in conjunction with the Office of University Counsel, is responsible for implementing, monitoring, rendering fair use opinions subject to final approval by the Office of University Counsel, and recommending sanctions, when appropriate, related to the guidelines set forth in the Policy. AISR is the designated academic department registered with the Copyright Clearance Center (CCC), and will serve as the official agent within the University for registering requests and managing accounts related to securing permissions via the CCC.
In conclusion, the extent to which an individual, faculty member or educational institution may make comparable fair use determinations in both print and online environments is still open to much discussion. A review of academic web sites will offer a broad range of interpretations and approaches to making fair use decisions regarding this puzzling new way to present and access intellectual property.
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