COPYRIGHT PROTECTION AND PERMISSIONS
If you intend to use someone's copyrighted work, unless the work is in the public domain or the use is considered a fair use (discussed below), you must obtain the copyright owner's written permission. Only the copyright owner or someone acting with the owner's authority, such as a publisher, can grant that permission. While not every unauthorized use of a copyrighted work is an infringement, whenever you use another person's words, illustrations, photographs, charts or graphs in coursepacks created through this Site, you must be sensitive to the risk of infringing that individual's copyright. Under federal copyright law, and court rulings interpreting copyright law, as a general rule, you will need to obtain permission before reproducing copyrighted materials for an academic coursepack.
Though not itself a copyright clearance service, this Site, through its affiliation with certain clearance services and publishers, will assist you in acquiring permission to use materials incorporated in the coursepacks created on the Site, and collecting royalties and distributing payments to the rights holders.
If you are uncertain as to whether you need to seek permission to use the work of another in a coursepack, ask yourself these three basic questions:
- Does the content I am using incorporate the expression of another party? While statements of fact and ideas are not copyrightable, the specific expression of them may well be.
- Is the other author's expression protected by copyright? Although works in the public domain are not protected by copyright, organized summaries or compilations of such works may be.
- Does my intended use fall within the scope of "fair use"? Some, but not all, educational uses fall under the principle of "fair use."
What is "Fair Use?"
Fair use is a defense to an allegation of infringement under the U.S. Copyright Law. Under the fair use doctrine, limited use may be made of portions of a copyrighted work without the copyright owner's permission, for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. Section 107 of the Copyright Act establishes the four following basic factors to be considered in deciding whether a use constitutes a fair use:
- The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit, educational purposes -- Fair use is more likely to apply if the use of the otherwise protected work is intended to advance new knowledge. It is less likely to apply if the intended use is merely for commercial gain.
- The nature of the copyrighted work -- Fair use is more likely to apply if the original work is factual (e.g., scientific or technical) than if it is creative (e.g., a novel or poem). Because a scientific principle itself is not covered by copyright, and there are a limited number of ways to express it completely and accurately, the expression of such principles may be subject to "fair use" by others.
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole -- The larger the amount, and proportion, of original expression you want to use, the less likely it is that the use will be protected by the fair use doctrine. A recent case has indicated that when a book is either not divided into chapters or it contains fewer than 10 chapters, 10% of the pages in the book is permissible; when a book has 10 or more chapters, 1 chapter is permissible. (See Cambridge University Press, et al. v. Becker, et al., Civ. Action No. 1:08-CV-1425-ODE). While this case is technically binding only in Georgia, it is likely to have national impact due to its specific analysis in this area.
- The effect of the use upon the potential market for or value of the copyrighted work -- The more that similar copying by others would further reduce the value of the author's original or derivative works, the less likely it will be that your use is covered by fair use. Similarly, the same recent case has indicated that if a publisher's chapter (or content) is readily available at a reasonable price and in a convenient format, then permission must be sought before reproduction. (See Cambridge University Press v. Becker)
Although Section 107 of the Copyright Act includes teaching, scholarship, and research, along with making multiple copies for classroom use as among the uses of copyrighted works that may qualify as fair use, none of these uses automatically qualifies as a fair use. Both Congress and the Supreme Court have rejected the notion that all educational uses or all uses by educational institutions are fair uses. There is no blanket exemption from copyright liability for educational uses or uses by educational institutions or their instructors. For a more comprehensive review of the guidelines put forth by the United States Copyright Office for the Reproduction of Copyrighted Works by Educators and Librarians, see: http://www.copyright.gov/circs/circ21.pdf.
Unless your intended use of content incorporated into any coursepack falls unequivocally within all four criteria required to establish fair use, then it is recommended that you get the copyright holder's permission before you use the protected material. If: (1) the content you wish to use is protected by copyright and not in the public domain, (2) your use is not a fair use or otherwise exempt from liability for infringement, and (3) the work has not been previously licensed for your use in the coursepack, you will need to obtain permission for use from the copyright owner or licensor.
Unless you are absolutely certain that you have the legal right to use the work of another, you should ask for permission to use it.
The preceding basic information about copyright law is designed to help you safely cope with your own legal needs. But legal information is not the same as legal advice - the application of law to an individual's specific circumstances. Although we went to great lengths to make sure our information is accurate and useful, we recommend you consult a lawyer if you want professional assurance that our information, and your interpretation of it, is appropriate to your particular situation.