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*Resources for Instruction in the Social Sciences

Librarian Charlene

University System of Georgia Copyright Policy

It is incumbent on all instructors to follow the University System of Georgia Policy on the Use of Copyrighted Materials in Education and Research. The policy is focused on respecting the rights of copyright holders and on the use of copyrighted works in teaching, research, and service. It has a section on Fair Use, and explains rules for electronic reserves, which also apply to course management systems like iCollege.

Making Use of a work

You can make use of a work if:

  • It is in the Public Domain
    • U.S. government work (not copyrightable)
    • Expired copyright (mostly pre-1923 pub)
  • Georgia State has a license (quick search in the box below)
    • Always link to a Library holding if possible.
    • If you want to make a copy, check whether the license allows copying (Ask Library!)
  • An exception applies (fair use, face-to-face)
  • The terms Terms of Use allow your use (Website, Creative Commons)
  • You have explicit Permission/License

If none of these apply, don’t use the work. If you would like help locating a work you can use that will meet your instructional needs, contact your subject librarian.

Use this box to search for licensed electronic journals:

Anticircumvention

The Digital Millennium Copyright Act (DCMA) 17 U.S.C. §1201 forbids circumvention of a technological measure that effectively controls access to a work protected under copyright. 

Generally, it is a violation to go around any type of digital access controls if such access would be unauthorized.

There are limited exceptions for a few uses, including important educational uses. 

Face-to-Face Teaching Exception 17 U.S.C. §110(1)

  • "Performance or display of a work by instructors or pupils in the course of face-to-face teaching activities. . . in a classroom . . ."
  • Must use lawfully made copy.
    • You may use a library copy or a personal copy, but not a copy made by circumventing technological protection measures (DRM).
  • Must be for teaching purposes only.
  • Allows for classroom use of "For Home Use" labeled media.
  • Does not cover copying (fair use).
  • Does not cover materials in a course management system such as iCollege/D2L.

 

Distance Learning Exception TEACH Act 17 U.S.C. §110(2)

  • Transmission of non-dramatic literary or musical work or reasonable portions of other works
    • but not works marketed for online use
      • What is a reasonable portion? Never more than would be used in a typical face-to-face classroom session. And never more than needed for your pedagogical purpose.
  • By the instructor as an integral part of mediated instructional activities
  • Directly related and of material assistance to the teaching content
  • Reception limited to students officially enrolled - password access (put it in the course management system)
  • Institute has policies regarding copyright and provides informational materials to faculty, staff, and students
  • Notice to students that materials used may be subject to copyright protection
  • Technological protection measures reasonably prevent retention of the work for longer than the class session and reasonably prevent unauthorized further dissemination. (streaming can meet this requirement)
  • The copy was not made by circumventing technological protection measures (*but ask about triennial exemptions)

Think you are ready to use the TEACH Act? Check the University of Texas TEACH Act Checklist

Permission

When seeking free permission, first try to identify the copyright holder. This will probably be either the publisher or the work or the author. Then, send a request where you:

  • Ask your recipient to affirm they are the copyright holder, or indicate who does own the rights;
  • Describe the specific work, including specifically the portions (pages, timer count) that you will use;
  • Describe the use specifically, and how it will be accessed, the number of uses, dates it will be used (e.g. what semester);
  • Provide a means for assent (signature line, request for email granting permission);
  • Indicate that you will include attribution when you make use of the work, and ask if they have a preference for how you attribute;
  • Include any details that make granting permission attractive;
  • Make it easy (use email or include a self-addressed, stamped envelope).

Licensing

To license the use of a work, the easiest method is to work through a collective rights agency. Alternatively, you can contact the copyright holder directly, usually the publisher.

Scholarly Communications Librarian: Laura Burtle

For more specialized help with instructional copyright, contact Laura Burtle at lburtle@gsu.edu.

Special thanks to Laura for compiling the below information.

DISCLAIMER: Copyright is a large field, and this guide only covers a small part. The primary focus of the guide is on use of copyrighted materials by University System of Georgia instructors operating under the University System of Georgia Copyright Policy. Contact the Georgia State University Office of Legal Affairs with questions in general or about specific situations.

Copyright Myths

Copyright is complicated, and that leads to a number of myths that are not accurate. The following are NOT TRUE:

  • You can copy something if you just give attribution.
  • It is always legal to copy up to a certain percent or portion of a work.
  • Works on the internet are in the public domain and can always be copied.
  • If there is no copyright notice, the work is not copyrighted.

What can be copyrighted?

  • Literary works
  • Motion pictures & other audiovisual works
  • Musical works
  • Dramatic works
  • Sound recordings
  • Pictorial, graphic, & sculptural works
  • Pantomimes, choreographic works, architectural works
  • Compilations of above works

What cannot be copyrighted?

  • Not in fixed tangible form of expression
  • Titles, names, short phrases, slogans
  • Familiar symbols/designs; mere variations in typographic ornamentation, lettering, coloring
  • Mere listings of ingredients or contents 
  • Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, devices
  • Consisting entirely of information that is common property with no original authorship
  • Works by U.S. government employees as part of their employment

How does one get copyright?

  • Copyright conferred upon creation & fixation of new works
  • Notice - not required – but recommended
    • © Year Author (e.g.© Bob Smith 2020)
    • Registration is not required, but it has advantages
      • Required for suit
      • Statutory Damages

 

Exclusive Rights Conferred by Copyright

 

No Exceptions

If your use does not fall under any of the listed exceptions, you need permission. In some cases you can see free permission, others require you to pay a license fee. 

Statutory Exceptions to Exclusive Rights

The exclusive rights of copyright holders are limited by a number of statutory exceptions. Particularly relevant to instruction are exceptions for:

Fair Use Basics

As an instructor at GSU, whenever you request that the E-Reserve or iCollege/D2L systems include a copy of a portion of a copyrighted work without permission from the rightsholder, you will be expected to do a thoughtful fair use analysis, and affirm that you found the use you are requesting to be a fair use. 

By applying some basics of doing a rigorous fair use analysis, you not only will be showing respect for the interests of other authors, but you will also be helping comply with the law and preserve our ability to offer reserve services and provide copyrighted instructional content online.  Moreover, you will also be helping the university community maintain a responsible standard of fair use that can support our teaching.

Copyright law provides the creators of original works of authorship with a set of limited exclusive rights, including the right to copy, distribute, and perform their works. The law balances the private interests of copyright owners with the public interest and is intended, in the words of the Constitution, “to promote the Progress of Science and useful Arts, by securing for a limited Time to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Thus, the law provides limited exceptions to the copyright owner’s exclusive rights to the original work. One such exception is the right to make a “fair use” of a copyrighted work.

The fair use analysis is a means to determine whether reliance on the fair use exception is justified, or in other words, whether an unlicensed use of a copyrighted work is legally permissible.

Fair use is an important aspect of the copyright law of the United States, and it allows you to make limited uses of copyrighted works without permission from the owner or other rightsholder.  When you scan and share readings in a course, for example, you are often exercising fair use.  However, not all such educational uses are within fair use.

A determination of whether your use is a fair use depends on whether the four factors in the statute weigh in favor of or against fair use.  The four fair use factors are:

Factor 1:  The purpose and character of the use.
Factor 2:  The nature of the copyrighted work.
Factor 3:  The amount and substantiality of the portion used.
Factor 4:  The effect of the use on the potential market for or value of the original.

A critical ruling was handed down by the Eleventh Circuit Court of Appeals in Cambridge University Press v. Albert, 906 F.3d 1290 (11th Cir. 2018) and the District Court in Cambridge University Press v. Becker, No. 08-CV-1425-ODE (N.D. Ga. Sept. 30, 2020). These cases provide specific guidance regarding the nature and amounts of excerpts from books and other works that are likely to be fair use in the non-profit educational context.

The Georgia State Office of Legal Affairs provides a checklist to help you do a fair use analysis.

Factor 1: Purpose and Character of the Use

Factor 1 considers both the nonprofit educational purpose of the use and whether the use is transformative (e.g., you adapted the work to a new purpose) or non-transformative (e.g., mirror-image copying). The court uniformly weighed this factor in favor of fair use, because all uses were strictly of a nonprofit educational character or for the sole purpose of teaching students in classes at a nonprofit educational institution, even though the uses were not transformative.

Factor 2: Nature of the Copyrighted Work

Factor 2 generally favors fair use for non-fiction and fact-based works. Many of the works we use in teaching fit that description. However, the court also ruled that this factor can weigh against fair use if the book or other work principally comprises evaluative, analytical, or subjectively descriptive material that surpasses the bare facts necessary to communicate information, or derives from the author’s experiences or opinions. Other conditions that tend to favor fair use with regard to this factor include whether the work is published (e.g., not a manuscript or personal letter), whether it is a non-consumable work (e.g., not a workbook or exam form).

Factor 3: Amount and Substantiality of the Portion Used

Factor 3 generally looks to the amount of the original work used. The court rejected any bright-line rule, such as exact counts of words, pages, or chapters. This factor can weigh in favor of fair use if the excerpts are decidedly small and generally fill a legitimate purpose in the course curriculum and are narrowly tailored to accomplish that purpose. The lengthier the excerpt, the more the use could potentially harm the market for the work. Generally, use of a single chapter or less of a work is more likely to be a fair use than a use of multiple chapters of that work. However, the outcome of Factor 3 will vary based on the effect of the favored nonprofit educational purpose of the use under Factor 1, plus the impact of the unfavored market substitution as recognized under Factor 4.

Factor 4: Effect on the Market for the Original

In evaluating current or potential market harm, Factor 4 considers the effect of the use on the entire market for the work, if the specific use were to become widespread. In this case, the court identified the entire market to include any market for sales of the full books and any market for licensing excerpts of the work for electronic reserves. The court reached different conclusions about different works, depending on whether the excerpts were available for sale or licensing. For example, where the court found no indication that a specific work was available for licensing for electronic reserves, Factor 4 tended to weigh in favor of fair use. When there is a high demand for excerpts of the work, use of even a very small amount of the work may not be a fair use as exemplified by the below summaries of the District Court’s reasoning in finding no fair use under Factor 4:

  • Use of 2.8% of Sage Handbook of Qualitative Research 2nd Ed. was not a fair use. Factor 3 was in favor of fair use and adjusted further to favor fair use. However, Factor 4 was in favor of no fair use and weighed more heavily because the court found there was a “strong demand” for excerpts of the book.
  • Use of 1.58% of Sage Handbook of Qualitative Research 2nd Ed. was not a fair use. Factor 3 was in favor of fair use and adjusted further to favor fair use. However, Factor 4 was in favor of no fair use and weighed more heavily because the court found there was a “strong demand” for excerpts of the book.
  • Use of 8.14% of The Slave Community, Plantation Life in the Antebellum South was not a fair use. Factor 3 was in favor of fair use, but was mitigated in favor of no fair use because 8.14%/35 pages bordered on being excessive. Factor 4 was in favor of no fair use, and weighed more heavily following a review of the permissions income of the publisher for this work. The court found that there was a “market of substance for permissions.”

Fair Use Checklist

The checklist is a tool that allows you to perform a rigorous fair use analysis, and each portion of the checklist below should be completed. Not all of the factors will be present in any given situation. Check only those factors that apply to your use.  Where there are counter factors, usually one or the other applies. No single item or factor is determinative of fair use, but several factors carry different weights as indicated below. The final determination is based on a weighing or balancing of the four factors. You do not need to have all factors or all details pointing in favor of or against fair use. 

Complete and retain a copy of the checklist for each “fair use” of a copyrighted work in order to establish a “reasonable and good faith” attempt at applying fair use should any dispute regarding such use arise.

Click here for the Fair Use Checklist (via the Georgia State University Office of Legal Affairs)

Balancing the Factors

The four factors are weighed and balanced together to determine whether the use is within fair use or is an infringement. However, the four factors do not carry equal weight. Factor four carries the most weight but not so much weight that it is outcome determinative. Further, when the works are published, non-consumable and non-fictional works, factor two carries little weight.

Course Management System (iCollege/D2L)

 

Electronic Reserves

  • Instructors know details of the work and its intended use, so the instructor must evaluate whether permissions or a license are needed or whether the use of the work is a fair use. Instructors must fill out Fair Use Checklist for each work relying on fair use, and must KEEP A COPY that can be produced upon request.
  • Instructors must provide a citation for the work. It will not be posted without attribution.
  • If the library does not have a copy, the instructor must provide a lawful copy. Photocopies are not acceptable.
  • The library will password restrict access to the work.
  • The library will terminate access at the end of the semester, and remove the materials.
  • There is no charge for use of e-reserves.
  • Where the work is already licensed by the library, a link to the work will be used instead of a copy.
  • Instructors can submit requests for items to be placed on e-reserve online.
  • Students can access e-reserves online.