Copyright

Staying Legal: Four Steps for Reusing Materials in your Course

Step One:

Find something without copyright protection. Check to see if what you need or something comparable is in the public domain. The Merriam-Webster Dictionary (2017) defines public domain as “the realm embracing property rights that belong to the community at large, are unprotected by copyright or patent, and are subject to appropriation by anyone.” Any content published in the United States (U.S.) before 1927, documents produced by the U.S. federal government, and publications from U.S. state governments are the most common materials in the public domain. Content in the public domain can also include some oddball or uncommon creations. These creations include objects created by nature, plants, animals, machines, random selection, or any objects not created by a human. For example, a flower pressed in a book might create a unique outline on the page, but that outline will not receive copyright; it was created by the flower and the book, and, by law, only human beings can own copyrights.

How can I determine what works are in the Public Domain?

Works created in the U.S. before 1927. Works that have a CC0 License or a Public Domain Mark (PDM) can be the easiest to determine whether they are in the public domain because they are clearly marked on the content.

CC0 (CC Zero)	Public Domain Mark (PDM)

State and federal documents are sometimes produced by independent contractors; if this is the case then the work is only in the public domain if it was “work for hire.” If you are uncertain about the work’s copyright status, you may need to:

• Contact the contractor or related agency to determine if it is a “work for hire” and copyright protected or if the work is in the public domain. Works created by state and federal employees during their “official duty” will be in the public domain.
• Determine if works incorporated within state and federal documents are still protected which may prevent the work from entering the public domain. State and federal agencies should place a copyright notice with content that is still protected. Paper money, coins, and stamps have unique protections and should be further researched before being reused.  You may find the Harvard State Copyright Resource Center website of assistance to help identify the relevant laws in each state.

Determining if other types of works (e.g. works published between 1927-1989) are in the public domain may not be as simple. To aide in determining if a work is in public domain, find the answers to the following questions:​ 
Is the work copyrightable? If no, then the work is in the public domain. 
Has the work been published? If yes, also determine: 
Was it published with a copyright notice? 
Where and was it first published in the U.S.? When? 
Is the work produced by a corporate author, work for hire, anonymous, or pseudonymous? 
Is the work an original, derivative, or compilation of content?

 

Step Two:

Find something with an open or existing license. Check to see if what you need or something comparable has an existing license. Common instances in which materials have existing licenses include:

• Library-licensed content
  If you are using library-licensed materials for an online course, such as on Canvas, you should consider providing perma-links, DOIs, or citations of the specific resource rather than including them in the learning management system (LMS) for students to download directly; this is beneficial for two to three reasons: Usage statistics for that resource will increase, which will let librarians in collection development know that the resource is being used. (When resources have low usage statistics, they have a greater chance of having their subscription canceled); Some of the licenses may not allow for electronic reuse in learning management systems, like the LMS; If you provide citations (with no links), students will better learn how to search and navigate the library databases for the specified resources.
• Creative Commons Licensed content
  CC Basics By Simonne and Stephen
  If you find materials with CC licenses, you are free to use the content as long as you follow the license requirements.  You can Search the Commons to find relevant content on a number of search engines and websites.
  

Step Three:

Determine if your use falls under an exemption

• Section 110(1): Exemption for face-to-face teaching, or; Section 110(2) (also known as the TEACH Act): exemption for online distance education. Beware that both Sections 110(1) and 110(2) are specifically for making copyrighted materials available to students enrolled in the course. Placing materials publicly online would not comply with these exemptions.  Instructors often wish to use media, such as films and music, in the classroom.  Section 110(1) and 110(2)/TEACH Act are specifically for displaying or performing copyrighted works during classroom sessions. This section allows instructors to use films, music, artwork, poetry, prose, and other copyrighted materials in part or in their entirety, if the amount used is necessary to meet the educational objectives of the course. The copies used must be lawfully made and obtained.  While the law specifically refers to face-to-face classes, a secure online classroom that only officially enrolled students have access to, such as through Distance Learning, may be comparable to face-to-face teaching and use of copyrighted works in that active teaching format should be evaluated under similar standards. In online environments care should be used to limit the use of the clip to view-only and only for the duration necessary for education purposes.
• Please note that if you expect students to use the material outside the classroom (i.e. on their own time or as homework), or if you cannot rely on Sections 110(1) or 110(2), you should determine if you have a fair use (Section 107) instead. If you feel the documented evaluation of your use is fair then you are free to use the content, so long as it is a legal copy.  If you decide to make copyrighted materials available publicly online rather than only available to students officially enrolled in the course (e.g. through Canvas), then you will need to evaluate if this use is a fair use.  When the environment, such as where the materials will be made available, changes or the context of why you are sharing the materials changes (i.e. the first factor of fair use or the purpose of your use), your use must then be re-evaluated. Please note that exemptions in the law need to be determined each semester the content is used.  
  • Summaries of Fair Use Cases: Understanding previous fair use cases will help you in understanding this principle.
  • The Four Factors of Fair Use: outlines the four factors and gives examples about what is and is not in favor of fair use.

  • Code of Best Practices in Fair Use from the Association of Research Libraries

  • Copyright, Fair Use, and Public Performance from the American Library Association

  • U.S. Copyright Office Fair Use Index

  • Fair Use Evaluator This tool helps you make a fair use evaluation and provides a PDF document of your evaluation for your records.

 

 

Step Four:

If necessary, request permission or purchase a license through a collective rights agency to use the item; it's not very common for an individual faculty member to purchase a license for use of a copyrighted work in the classroom. Faculty members in music, drama, and dance may be familiar with purchasing specific public performance licenses.

Model Permission Letters can be used to ask permission before posting content, from Dr. Kenneth D. Crews (formerly of Columbia University)

 

Please Note:

Even though created works may no longer be protected by copyright or patent law, these works may still have other types of protections. These protections can include trademark, publicity, privacy, HIPAA, and FERPA. If the work is still protected through one of these areas, then the content may technically be in the public domain but be afforded other protections that do not allow it to act as if it was in the public domain. For example, you want to publish some letters that were written many years ago, and you've determined that the letters are no longer protected by copyright; however, you discover that the letters reveal private information about individuals who are still alive today, and therefore, you may have to seek permission from those individuals before you decide to publish the letters.

While U.S. law does not require attribution to the creators of public domain works, it is considered ethical and moral to provide that information about creators/artists/authors.

Content from "Staying Legal: Four Steps for Reusing Materials in your Course" by Florida Academic Library Services Cooperative (FALSC).