Exceptions and Limitations on the Copyright Rights

The Copyright Act contains numerous statutory limitations on rights granted to the copyright owner, which allows educational institutions some measure of free use of materials, within certain parameters.  Several of these limitations to copyright holders’ rights are particularly relevant to colleges and universities and are found in Section 107 – 122 of the Copyright Act.  These include:

·         Fair Use (Section 107)

·         Performances and Displays in face-to-face teaching (Section 110)

·         Distance Learning (Sections 110 and 112)

·         First Sale (Section 109)

·         Reproduction by Libraries and Archives (Section 108)

·         Limitations on Liability for digital network service providers (Section 512)

Fair Use Doctrine
Section 107 of Title 17 (the copyright portion of the U.S. Code of Law) places certain limitations on the exclusive marketing rights of copyright holders and grants to users the right of “fair use” of copyrighted works for purposes including criticism, comment, teaching, scholarship, and research .

However, Section 107 of Title 17 does NOT grant a blanket exemption from copyright law to educators and scholars. Instead, the following four factors are identified as the keys to determining if a particular use of copyrighted work will be judged as fair use (see the Fair Use Checklist of these four factors):

·         the purpose and character of the use,

·         the nature of the copyrighted work that is used,

·         the amount and the substantiality of the work used in relation to the copyrighted work as a whole,

·         the impact of the use on the potential market for or value of the copyrighted work.

These four factors serve as general guidelines and necessitate a process of weighing and balancing the specifics of a particular use that is somewhat subjective in nature. When a particular use does not meet the “fair use” criteria, the user must acquire the permission of the copyright holder before proceeding.

The following is intended to serve as a basic guide to the “Four Factor Test of Fair Use” and the application of this test to the process of evaluating whether a particular use of a copyrighted work is fair use or not. The factors are intended to be considered corporately; in particular, all four factors must yield a response of “fair use” for the particular use of a copyrighted work to be fair.

The use of a copyrighted work with attributes listed first would be considered “fair,” while a use with attributes listed last are considered “not fair.” Attributes listed in the middle do not fit in neatly to either category and require the consideration of both the other factors and the specifics of the use.

Factor 1: What is the purpose and character of the use?

Fair Use: Extending, transformative use that adds value or insight for Nonprofit, Educational, Personal use
The Middle Ground: Criticism. Commentary, News reporting, Parody – here the level of “added insight” is key
Not Fair Use: Reproduction of the original work with no substantive extension, Commercial, Public
Note: The Supreme Court has ruled that this “transformative” factor is the primary key to determining fair use.

Factor 2: What is the nature of the copyrighted work that is used?

Fair Use: Factual Information, Published
The Middle Ground: Mixture of facts and imaginative
Not Fair Use: Imaginative, Unpublished
Note: Fair use is more restrictive for unpublished works since the author has control over the initial public presentation of their work.

Factor 3: What is the amount and the substantiality of the used portion of the work in relation to the scope of the copyrighted work as a whole?

Fair Use: Small amount (the less you use the better) that is not the “heart” of the work
Not Fair Use: More than a small amount and/or the “heart” of the work

Factor 4: What impact will the use have on the potential market for or value of the copyrighted work?

Fair Use: No impact on market, permissions obtained
The Middle Ground: Original unavailable on the market, not possible to obtain permissions, copyright owner unidentifiable
Not Fair Use: Negative impact on market, competes with copyright holder, avoids payment for permissions
Note: This factor can trump the other three factors, since copyright is specifically oriented towards the protection of the commercial and marketing rights of the copyright holder.

As mentioned above, when a particular use does not meet the “fair use” criteria, the user must acquire the permission of the copyright holder before using the copyrighted work. Neither acknowledgement of the copyright holder nor a disclaimer dissociating your use from the copyright holder is sufficient; permission must be actively sought and obtained. And, if permission is denied, the copyrighted work must not be used until the appropriate royalties are paid to the copyright holder. (See the Fair Use Checklist to help guide you in your assessment.)

Classroom Guidelines (derived from Fair Use Doctrine)

Because Fair Use requires a case-by-case assessment for all four of the areas above, efforts have been made over the years to develop guidelines in order to reduce some of the uncertainties for institutions in making such assessments.  Publishers, authors, and education associations have developed the “Classroom Guidelines,” which were intended to provide greater clarity concerning the application of fair use to the reproduction of certain copyrighted works by teachers in nonprofit educational institutions for research or instructional purposes. (See Section III under individual media section to learn more about the Classroom Guidelines for each type of media that Centre suggests its community to follow.)  

The following points should be considered when relying upon the Classroom Guidelines:

·         The Guidelines provide a safe harbor for teachers who make single copies of works for their own scholarly research or for their use in teaching or preparing for teaching.

·         The Guidelines also define the scope of a “safe harbor” for teachers who wish to distribute multiple copies of copyrighted works to their students without seeking permission or paying royalties.

·         As a safe harbor, the Guidelines represent minimum and not maximum allowances.  By definition, therefore, there will be instances in which actions that fall outside the Guidelines are still fair use.

·         The Guidelines are not law or regulation. 

The Classroom Guidelines are regarded by many to embody a trade-off between certainty and flexibility.  They identify considerations relating to the reproduction and distribution of multiple copies for students:  brevity spontaneity, and cumulative effect.  Additionally, the students may not be charged more than the cost of making the copies, and each copy must contain a notice of copyright.

·         The brevity factor sets forth word and portion limitations.

·         Spontaneity means that the copying is done at the instigation of the individual teacher and that the decision to reproduce the work is made so close in time to the moment the faculty member wants to use the work that it would be unreasonable to expect timely reply to a request to the copyright owner for permission.

·         The cumulative effect factor limits the copying of particular material to one course and places limitations on what may be copies.  For example, safe harbor generally is limited to one article or two excerpts per author or three per periodical volume or other collective work during the class term.

The safe harbor provided by the Guidelines:

·         does not include copies of the same item made by the same teacher from term to term,

·         will not apply to the reproduction and distribution of more than nine instances of multiple copying for one course during the class term.

Performance or Display of a Copyrighted Work in Face to Face Instruction

Section 110 provides that the performance or display of a copyrighted work by instructors or students in the course of face-to-face teaching activities of a nonprofit educational institution are not infringement of copyright, notwithstanding the rights of the copyright owner.  There are certain limitations:

·         The performance or display must be in a classroom or similar place devoted to instruction.

·         A performance or display of a motion picture or other audiovisual work or an image from such a work must be from a lawfully made copy.

This exception applies to any type of copyrighted work.  For example, it is permissible to perform or show a play or a motion picture or to display a photograph or a poem within the four walls of the classroom.

TEACH Act / Distance Education

In 2002, Congress enacted the TEACH Act (Technology, Education, and Copyright Harmonization Act) which expanded the scope of the copyright exception applicable to distance education transmissions (e.g., over the air or over the Internet), as well as to the use of online materials or in the context of face-to-face teaching.

The TEACH Act allows educators to use copyrighted materials in an electronic medium, when it replaces or enhances what otherwise would be a live face-to-face teaching environment.  This exception applies to any copyrighted work other than a work produced or marketed primarily for performance or display as part of “mediated instructional activities” using digital networking (i.e., materials expressly created for use during online distance education classes), subject to certain limitations:

·         Only “limited portions” of works may be used.

·         The amount of the copyrighted work used must be comparable to that which would be used in a face-to-face classroom session.

·         The work must be lawfully obtained before use (i.e., pirated works cannot be used).

·         All instances of using copyrighted works must take place as an integral part of the course, which is taught at a nonprofit educational institution.

·         The digital transmission limits access to only those students who are enrolled in the course (e.g., by password access).

·         The instructor and/or institution must limit the ability for students to download the material and further disseminate it beyond the scope of the course.

·         Instructors and College staff must not break any technological measures put in place by the copyright holders to prevent unauthorized uses, even if the use of that material might otherwise be legal and within fair use.

·         The educational institution must have a copyright policy and actively share informational materials to faculty, staff, and students regarding U.S. copyright law.

First Sale Doctrine (Section 109)

The First Sale doctrine allows physical owners of copyrighted works (such as a book) to loan, rent, sell, or give, or donate that work.  This doctrine applies to all forms of copies of works that can be physically transferred, including copies embedded in such digital formats as CDs and DVDs.  There are a few specified rules about this doctrine:

·         The first sale doctrine does not apply to copied that are obtained by rental, lease, or loan, without acquiring ownership.

·         The doctrine prohibits the rental, lease, lending (or other similar activity) for direct or indirect commercial advantage.

Libraries and Archives (Section 108)

Libraries and archives are protected from liability for unsupervised copying by library users on library premises, however these protections do not preclude the right of fair use.  The general right of fair use may allow more or less copying and distribution of copyrighted works than the specific rights of Section 108.  Library staff at Centre College reserve the right to refuse to accept a copying order if, in its judgment, fulfillment of the order would involve violation of copyright law.  The Section 108 exceptions do not supersede contractual obligations that may be assumed by a library when it obtains a copy of a work.  There are two types of exceptions within Section 108:

1.      Copying for library users
Libraries may make a single copy of an article or copy a small part of any other copyrighted work, where the copy becomes the property of the user and the library has no notice that it will be used for a purpose other than private study, scholarship, or research.  These rights extend to the isolated and unrelated distribution of single copies, but not to “related or concerted” reproduction of multiple copies of the same material.

 

2.      Copying for the library’s collection
Libraries may make three copies of unpublished works for preservation purposes, and three copies of published works to replace deteriorated, damaged, lost, or stolen copies, or if the existing format in which the work is stored has become obsolete.  

More detailed information about the application of this exception within the Doherty Library is found in Part III: Applications, Copyright-Protected Printed Text Materials

Interlibrary Loan

U.S. copyright law does not provide a quantitative definition of how many photocopies from a journal can be received by a library for interlibrary loan. The National Commission on new Technological Uses of Copyrighted Works (CONTU) in 1978 issued guidelines to help libraries comply with copyright law. The Grace Doherty Library follows CONTU guidelines, as follows:

For any given journal or periodical title within a given year, the library is allowed, under CONTU guidelines, to obtain an institutional total of 5 photocopies of articles published within the past 5 years of the current year. The sixth time we are asked to get an article from a particular journal in this time frame, we must look at the following alternatives:

1.      Decline to fill your request (sometimes necessary).

2.      Ask you to wait for a new calendar year when the count of five will begin anew.

DMCA
The Digital Millennium Copyright Act (DMCA) was passed into law in 1998 to address issues relative to digital materials and copyright. The DMCA contains provisions forbidding circumvention of digital protections and protecting copyright management information.  These protections can come in a variety of methods: a USB dongle with an encoded license key, required Internet activation of a license, an invisible layer on a DVD or VHS tape that prevents you from copying it, a message that appears over an image that you’re trying to download, or any other unseen measure that requires you to “hack” into it to be able to create your copy or use it in a way that the seller hadn’t originally intended you to.

The anti-circumvention provisions prohibit the unauthorized circumvention of technological measures which control access to or restrict the use of a copyright-protected work. Such technological measures may involve a password or encryption; breaking the password or encryption is illegal.

Copyright management information includes the title of a work, the name of the author or copyright holder and other identifying information. Intentionally removing or altering such information also violates a provision of the DMCA.

The DMCA provides limited liability for university networks acting as Internet service providers (ISPs) for students and faculty, provided that certain requirements are met.

Requirements of the DMCA:

1. Appoint a designated agent to receive reports of copyright infringement. Register the agent with the U.S. Copyright Office.                       Current Agent: Arthur Moore, ITS
2. Develop and post a copyright policy.
3. Educate campus community about copyright.

4.      Comply with "take down" requests.

5.      Apply measures to protect against unauthorized access to content and dissemination of information.

6.      Use only lawfully acquired copies of copyrighted works