Copyright Policy and Information

OVERVIEW • THE FAIR USE DOCTRINE • THE TEACH ACT • GUIDELINES • PERMISSION

Educational Use of Copyrighted Materials:

An Overview

TABLE OF CONTENTS

Introduction

Basics of Copyright Law

Fair Use Doctrine

Educational Guidelines and Exceptions

TEACH Act

Web Resources

Introduction

The following information has been compiled to help members of the Boston College community understand copyright laws as they pertain to educational uses of copyrighted materials. The University has begun to evaluate our current copyright policies and will notify the community when this has been completed. In the interim, please refer to this information for an understanding of acceptable uses of copyrighted materials.

It is necessary that we recognize one thing before beginning: copyright law can be very complex and confusing. With this in mind, we have created these pages in the hope that they may both clarify some of the legal issues surrounding copyrighted materials and also help to guide your responsible use of those materials. Our goal is not to frighten you or to prevent you from using copyrighted materials in your role as educator or researcher. If you have any questions regarding acceptable uses of copyrighted material and are unable to find an answer here or in any of the additional resources that are provided, please do not hesitate to ask for guidance. It will always be easier to ask for advice before using copyrighted materials than it will be to defend a lawsuit for copyright infringement after using the materials.

The information on these pages is presented to help explain the current state of copyright law as it applies to Boston College. In reviewing these, you will undoubtedly discover that the Fair Use Doctrine allows for the broadest possible uses of copyrighted material. But before simply relying upon fair use, you should first examine the guidelines that have been included and their various requirements. Although these guidelines are often very restrictive, if a desired use is in compliance with the guidelines, you can rest assured that it is perfectly acceptable. We do, however, understand that oftentimes a desired use will not fit neatly into any of the various guidelines. Should you find yourself in this situation, please do not hesitate to apply the fair use test – but please do so with care.

Remember: the Fair Use Doctrine is not a universal blanket of protection for the academic community and, as you will see, while allowing for a variety of educational uses, it does not eliminate the possibility of a copyright infringement lawsuit. Instead, the Fair Use Doctrine merely provides an available defense when a copyright owner brings a claim of infringement. Moreover, because the fair use test is vague and fact-dependant, there is no clear line of demarcation between permitted and unlawful use. Finally, if you are interesting in using copyrighted materials in an online environment, you should become familiar with the TEACH Act and its requirements. Like the educational fair use guidelines, the uses allowable under the TEACH Act are limited, but a special benefit of compliance with the TEACH Act is complete immunity – a legal “safe harbor” – from charges of copyright infringement.

With today’s technology, we have seen copyrighted works commonly take forms that could have only been imagined just a few decades ago. We have also seen copyright infringement come in many new forms, as well. As a result, copyright owners have begun to fight harder than ever before to protect their exclusive rights – not only through technological measures, but through legal action as well – and recently these owners have had a number of successes in the courtroom. Thus far, the academic world has been largely excluded from the intellectual property battle, but considering the fervent nature with which copyright owners have begun to crackdown on infringement, it is only time before academia comes directly in their sights. We must realize and remember that copyright laws apply to each and every member of the Boston College community and only by acting in unison can we protect ourselves when that day comes.

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Basics of Copyright Law

The background of copyright law is relatively straightforward. The federal Copyright Act was enacted to protect works of authorship, giving the owner of a copyright exclusive rights to do a number of things with those works, including: making copies, distributing the work, displaying or performing the work publicly, and creating derivative works. While originally the Copyright Act applied to traditional forms of content, such as books, photographs, music, drama, sculpture, and architectural drawings, with the advance of technology, the laws have expanded to include such things as video, motion pictures, electronic and multimedia and software. In general, a copyright will attach to an original work that is "fixed in any tangible medium of expression" (an accessible form), whether or not the author attached a copyright notice or symbol, as neither are required.

How do you know if something is protected by copyright? Well, some works are in the public domain and are not covered by copyright law. Any work published before 1923 is in the public domain. Assuming proper copyright procedures were followed, works published from 1923 through 1978 are protected for 95 years from the publication date. Works created after 1978, will generally have copyright protection for the life of the author plus 70 years.

When can you use a copyrighted work? Three major academic exceptions to the copyright owner's right to control the reproduction and use of a work works exist: the fair use exception, the library exception, and the face-to-face teaching exception. (The fair use and face-to-face teaching exceptions are addressed here.) Unless an exception applies, you must obtain permission to reproduce copyrighted work in any medium for any purpose. Failure to obtain permission for a non-exempt use can lead to very severe penalties. A court may award up to $150,000 for each separate willful infringement.

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Fair Use Doctrine

The Fair Use Doctrine provides for a significant amount of educational, nonprofit and personal use of copyrighted material. It is not, however, a universal copyright exemption for academia. In order to determine whether or not a use is fair, the desired use must be considered in light of a four-part test. Unfortunately, this test is necessarily ambiguous and must be evaluated on a case-by-case basis and it is not uncommon for reasonable people to reach different conclusions about the same use.

Possibly the most important concept to understand when dealing with the Fair Use Doctrine is that it is an affirmative defense to a copyright infringement lawsuit. That is, you may use copyrighted material in accordance with the Fair Use Doctrine, but if a copyright owner believes that the copyright is being infringed, the owner can still bring suit against the user. It is only at this point – after a lawsuit has been filed – that you would be able to rely upon the Fair Use Doctrine by admitting that you did use the material, but did so under the reasonable belief that the use was fair. Two facts should weigh in your favor in such a situation. First, this is a good faith defense. Even if a copyright infringement has occurred, a court may refuse to award damages if the infringer reasonably believed that the use was fair. Second, courts have historically shown a tendency to allow the use of copyrighted material for educational purposes.

It is imperative that each member of the Boston College community who is seeking to use copyrighted material for educational purposes know what they can do to ensure that the use will not open themselves and the University to the risk of an infringement suit, to understand the limits of the Fair Use Doctrine, and to avoid any use that might exceed those limits. Once you have exceeded the limits of allowable fair use, the penalties can be very severe. But fear not! This information has been compiled to help you understand what may and may not be an acceptably fair use and we will answer any questions that you may have.

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Educational Guidelines and Exceptions

Some guidelines have been established to help the educational community understand the uses that will always be in compliance with copyright law. In reviewing these, you may find that they are quite restrictive and often have numerous requirements. This is inevitable. The educational community worked to create the guidelines in collaboration with organizations that represent large numbers of copyright owners, such as authors and publishing companies, each of which have very narrow ideas of what constitutes fair use. While these guidelines are limiting, they serve to provide models for the standards of educational fair use in each of the different areas. If a use complies with the standards set forth in these guidelines, then the user will be at little or no risk of a copyright infringement suit. It is also important to remember that while the guidelines are quite restrictive, it is very possible that a use exceed the guidelines’ limitations may still be protected under the Fair Use Doctrine.

In 1994 the Clinton Administration attempted to create an additional series of guidelines for educational fair use of copyrighted works. The result was the Conference on Fair Use (“CONFU”), where copyright stakeholders and members of the educational community were called upon to negotiate guidelines for the fair use of electronic materials in a variety of nonprofit educational contexts, focusing primarily on distance learning, multimedia, electronic reserves, interlibrary loans, and image collections. Despite numerous meetings over a period of years, the proposed CONFU Guidelines failed to achieve consensus support and each of the respective groups reached different levels of completion: some of the guidelines are in final form, while others were left far from completion. The three most pertinent CONFU Guidelines are reprinted here. Although the guidelines may not have garnered the support that the Administration sought, they are helpful in that they provide an insight into the delineation between uses that are and are not fair.

Classroom Guidelines (governing reproduction of copyrighted materials)

Guidelines for Educational Uses of Music

Face-to-Face Teaching Exception

CONFU Guidelines for Educational Multimedia

CONFU Guidelines for Digital Images

CONFU Guidelines for Distance Learning

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TEACH Act

The TEACH Act was signed into law in 2002 in order to update an existing limitation to exclusive ownership rights. The Act, which is much more restrictive than fair use, allows for certain performances and displays of copyrighted material and is most particularly relevant to members of the educational community. The primary goal of the Act is to provide educators the opportunity to use copyrighted material for digital distance education purposes, i.e. course web sites and online classes. Although the requirements for compliance with the TEACH Act are numerous, it is important to remember that as a federal statutory limitation upon copyright ownership rights, uses that comply with the TEACH Act provide the user with a “safe harbor” – complete immunity from liability for copyright infringement.

Like the educational guidelines above, any use that is not in compliance with each of the requirements for the TEACH Act will not be covered by the TEACH Act safe harbor, but may still be acceptable under fair use. This is because the TEACH Act does not supersede usage allowable under the Fair Use Doctrine. Awareness of the TEACH Act will provide educators with an understanding of the legally approved uses of copyrighted material, and for this reason it is highly recommended that members of the university familiarize themselves with the Act’s requirements.

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Web Resources

Links to information found above:

Stanford University: Copyright and Fair Use – Case Law

http://fairuse.stanford.edu/primary/index.html#caselaw

Title 17, United States Code: Copyrights (U.S. Copyright Office)

http://www.loc.gov/copyright/title17/

Title 17, United States Code, § 106: Exclusive rights in copyrighted works

http://www4.law.cornell.edu/uscode/17/106.html

Title 17, United States Code, § 102: Subject matter of copyright: In general

http://www4.law.cornell.edu/uscode/17/106.html

When Works Pass into the Public Domain: a thumbnail chart