Copyright and Fair Use
Scholars submitting content for publication online should be aware of copyright and fair use considerations. Understanding Copyright and Fair Use will help reduce your concerns.
Copyright is a protection provided to authors of originals works in the United States. Copyright arises automatically when an original work is fixed in a tangible form of expression. In general, tangible forms include literary works, musical works, including any accompanying words, dramatic works, including any accompanying music, pantomimes and choreographic works, pictorial, graphic and sculptural works, motion pictures and other audiovisual works, sound recordings, and architectural works.
Poetry, prose, computer programming, artwork, musical notation, recorded music and/or song, animations, video footage, Java applets, a Web page, architectural drawings, and photographs are all copyrightable expressions. However, facts, exact duplications of public domain works, ideas, systems, works created by employees of the Federal Government, titles and short phrases, logos and slogans, and forms that only collect information do not qualify as copyrightable.
The author generally owns copyright. However, in some cases in which an employee has done the work for the employer, the employer owns the work.
Copyright gives authors/owners of copyrighted work the exclusive right to reproduce the work, to make derivative works, to distribute copies of the work, to perform the work, to display the work, and for sound recordings to perform the work publicly.
Fair use lets you use parts of works created by others in your work. Sometimes you need to obtain permission from the authors/owners of an original work to use parts of it.
The concept of fair use is somewhat vague when discussed in the abstract. Its meaning depends critically on the particular facts of the individual situation. The law does not clearly distinguish which uses are fair and which are not.
The "fair use" doctrine allows limited reproduction of copyrighted works for educational and research purposes. The relevant portion of the copyright statute says that the "fair use" of a copyrighted work, including reproduction "for purposes such as criticism, news reporting, teaching (including multiple copies for classroom use), scholarship, or research" is not an infringement of copyright. The law lists the following factors as the ones to be evaluated in determining whether a particular use of a copyrighted work is a permitted "fair use" rather than an infringement of the copyright:
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
- The nature of the copyrighted work
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
- The effect of the use upon the potential market for or value of the copyrighted work.
Although all of these factors will be considered, the last factor is the most important in determining whether a particular use is "fair." Where a work is available for purchase or license from the copyright owner in the medium or format desired, copying of all or a significant portion of the work instead of purchasing or licensing a sufficient number of "authorized" copies would be unfair. Where only a small portion of a work is to be copied and the work would not be used if purchase or licensing of a sufficient number of authorized copies were required, the intended use is more likely to be found to be fair. However, there is no specific number of words, lines, or notes that may safely be taken without permission. Moreover, acknowledging the source of the copyrighted material does not substitute for obtaining permission.
You can obtain permission from an author or publisher using this sample copyright permission letter.
Visit the US Copyright Office website for the most recent information about Copyright and Fair Use.
University System of Georgia - Regents Guide to understanding copyright and educational fair use provides basic understanding of the legal background of copyright law and fair use.
U.S. Code, Title 17, Copyrights website contains detailed information about Copyright.
SHERPA investigates "issues in the future of scholarly communication". Its site documents publisher's copyright and archiving policies as well as research funders archiving mandates and guidelines
The Association of Research Libraries has produced a Code of Best Practices in Fair Use for Academic and Research Libraries (January 2012) that contains useful information for librarians and scholars alike.