Copyright & Fair Use

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Fundamentals and Definitions

Watch the video "Copyright on Campus" for a brief, engaging introduction to academic fair use and copyright issues.

U.S. copyright laws protect "original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced or otherwise communicated, either directly or with the aid of a machine or device."

There are three main elements of this definition:

(1) the work must be "original", (2) the work must be "fixed", and (3) the work must be an "expression", rather than an idea.

(1) "Original works of authorship"

  • Include: books, photographs, music, drama, video, sculpture, software, multimedia, and databases.
  • Mere alphabetical arrangement of facts alone do not warrant copyright protection.

(2) "Fixed medium"

  • A work is fixed when "its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is 'fixed' for purposes of this title if a fixation of the work is being made simultaneously with its transmission".
  • Works that have not been fixed in a tangible form of expression, (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded) are not eligible for Federal copyright protection.

(3) "Expression"

  • Section 102(b) of the Copyright Act provides: "[i]n no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."
  • In the landmark case of Baker v. Selden, the Court reasoned that protection extended to the expression of the idea, not to the idea itself.

Internet and Copyright

E-mail, Web sites, listserv and usenet postings are copyrighted unless explicitly in the public domain.

  • Copyrighted works are protected regardless of the medium in which they are created or reproduced; thus, copyright extends to digital works and works transformed into a digital format.
  • Works are not in the public domain unless the author explicitly puts them there.
  • Works published on the Internet must be cited and treated as other copyrighted works are.

Copyright Statements

A copyright statement is not required for information to be copyrighted.

  • Copyrighted works are not limited to those that bear a copyright notice.
  • The use of a copyright notice is no longer required under U.S. law, although it is often beneficial. Because prior law did contain such a requirement, however, the use of notice is still relevant to the copyright status of older works.
  • A copyright exists from the moment an author fixes an original idea in a tangible medium. An author does not need to take any action to secure a copyright; however, there are benefits to registering a copyright at the U.S. Copyright Office.
  • Use of the notice may be important because it informs the public that the work is protected by copyright, identifies the copyright owner, and shows the year of first publication. Furthermore, in the event that a work is infringed, if a proper notice of copyright appears on the published copy or copies to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant’s claim of a defense based on innocent infringement in mitigation of actual or statutory damages, except as provided in section 504(c)(2) of the copyright code. Innocent infringement occurs when the infringer did not realize that the work was protected.

Copyright Notice

  • The use of the copyright notice is the responsibility of the copyright owner and does not require advance permission from, or registration with, the Copyright Office.
  • The copyright notice should contain the following three elements:
    1. The symbol © (the letter in a circle), or the word "Copyright" or the abbreviation "Copr."; and
    2. The year of first publication of the work. In the case of compilations or derivative works incorporating previously published material, the year date of first publication of the compilation or derivative work is sufficient. The year date may be omitted where a pictorial, graphic, or sculptural work, with accompanying textual matter, if any, is reproduced in or on greeting cards, postcards, stationery, jewelry, dolls, toys, or any useful article; and
    3. The name of the owner of copyright. The name of the owner of copyright in the work, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner.
  • Example: © 1998 John Doe
  • The copyright notice should be affixed to copies in such a way as to “give reasonable notice of the claim of copyright.” The three elements of the notice should ordinarily appear together.

Employment Issues: Copyright at Work

Copyright for work performed in the course of your employment may belong to your employer.

  • In the case of works made "for hire", the employer and not the employee is considered to be the author. Section 101 of the copyright statute defines a "work made for hire" as:
    1. a work prepared by an employee within the scope of his or her employment; or
    2. a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.... For the purpose of the foregoing sentence, ... an "instructional text" is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.
  • Many universities allow professors to maintain copyright ownership of scholarly publications, such as books and journal articles.

Fair Use

  • There are four fair use factors:
    1. Purpose and character of the use;
    2. Nature of the copyrighted work;
    3. Amount and substantiality of the portion used; and
    4. Effect of the use upon the potential market for or value of the work.
  • All 4 factors are considered, but the last factor is the most important in determining whether a particular use is "fair."
  • Include copyright statements and appropriate citations in your photocopy.
  • Limit access to students in your class only.
  • Terminate access at semester's end.
  • Obtain permission for materials used repeatedly semester to semester.

Applying Fair Use

Public Domain

To determine if a work is in public domain the following charts are extremely useful.

For an explanation of the complex issues surrounding Public Domain go to The University of California Copyright site.

Copyright Law and Legislation

SHSU Use of Copyrighted Material Policies

The Copyright Policy for The Texas State University System (Chapter III, section 10.1)

The Policy on the Use of Copyrighted Works Placed on Reserve and the Use of Audio/Visual Material in Distance Learning at SHSU - Revised Oct 2019

SHSU Copyright Infringement Policy and Tutorial

The Copyright Infringement Policy for Sam Houston State University.

Per this policy, if you have been notified of copyright infringement, complete this tutorial and print your score certificate, then make an appointment with the University's Copyright Officer, Erin Owens, 936-294-4567.

Penalties for Violating Federal Copyright Law

A summary of the penalties for violating Federal Copyright Law can be found in a letter from the Department of Education (GEN-10-08) and in a statement from the EDUCAUSE website.

Copyright Web Sites

Copyright Overviews

Fair Use

Internet Material