This policy provides detailed guidance on the fair use of specific kinds of copyrighted works at Bryn Mawr and Haverford Colleges.
I. Introduction: What Is Copyright
Title 17 of the U.S. Code, which defines copyright law in the United States, begins with the premise that copyright owners have exclusive rights to reproduce, distribute, make derivative works, and publicly display or perform their work. Only the owner of the copyright may grant, trade, lend, or sell these rights. The Copyright Act also defines, however, several important exceptions to the owner's rights. The best known and most important of these exceptions is the fair-use doctrine that allows others to copy a work under certain circumstances without seeking the copyright owner's permission; individual statutory provisions also make specific allowance for such other purposes as distance learning, backup copies of software, and some reproductions made by libraries.
In the last 10-20 years, copyright law has enjoyed heightened public attention and become more contentious as duplicating works, whether by analog or digital means, has become increasingly easy, as technologies have developed that allow copyright holders to assert their rights more vigorously, and as "information" of all sorts has become ever more commodified. Recent changes to copyright law have been motivated particularly by copyright holders in conglomerated, international media companies as they have sought to protect their interests and increase their revenues.
A. What is Copyrighted
Copyright protects an author's original, tangible form of expression, whether a novel or poem, manuscript letter, report, musical composition, dramatic or choreographic work, painting, photograph, speech, sculpture, video, architectural work, computer software, etc. Note that ideas and factual information are not protected by copyright (they may be protected by patents or trademarks), nor are any pre-existing materials that have been incorporated in the copyrighted work protected. Thus, one may copyright a chart, but not the FACTS in a chart; in an anthology of Goethe, one may copyright the translation, introduction, selection of stories, and layout but not the works of Goethe themselves because they are now in the public domain.
Although copyrights may be registered, any creative work appearing in the US as of 3/1/1989 is copyrighted even if it does not include a copyright notice. Items not eligible for copyright protection, U.S. federal government publications, works published before 1923, or works published before 1978 without a copyright notice, are in the public domain and, barring any other legal restrictions, may be copied freely.
B. Duration of Copyright
The copyright on a work expires after a certain amount of time, depending on when it was first presented to the public, was registered, or came into existence in "tangible form." The copyright on works published since 1978, for example, is valid for the life of the copyright owner plus 70 years. Copyright may be renewed under certain conditions; the Copyright OfficeCircular 15 discusses those conditions.
II. Limitations on the rights of copyright holders
The rights of copyright owners are not absolute, for copyright law defines exceptions under which copyrighted works may be reproduced without permission of the owner. Under certain exemptions and the "fair use" doctrine, copyrighted materials may be reproduced in some situations, especially by individuals, libraries, and educational institutions.
A. Three Statutory Exemptions
1. Classroom Use
Educational institutions and governmental agencies are authorized to publicly display and perform others' works in the course of face-to-face teaching activities, and to a limited degree, in broadcasts. Note that this exemption to copyright applies only to the use of legally acquired copies of a work. This exception allows for reading poetry and plays, for watching commercial films, or for listening to music in class.
2. Copying in a Library
The copyright statute describes a limitation to copyright that is used frequently in academic institutions. It is not an infringement of copyright when libraries (or their users) make single copies of certain copyrighted works (excluding musical works, graphic, pictorial or sculptural works, motion pictures or other audiovisual works, except audiovisuals dealing with the news) provided that: only individual articles or small portions of a larger work are copied; the copies become the property of the patron; the copies are used for private study, scholarship or research; the copying is not done for commercial advantage; and the library displays prominently a notice warning of copyright restrictions in accord with requirements published by the US Copyright Office. Libraries may make copies of entire works (or substantial pieces of a work) if the work cannot be obtained after a reasonable search and at a reasonable price. It is under this exemption and the fair-use doctrine that libraries may copy and place materials on course reserve.
3. Non-US Works
No "international copyright" automatically protects an author's works throughout the world. Protection against unauthorized use in a particular country, therefore, depends on the laws of that country. However, most countries offer protection to foreign works under conditions that have been greatly simplified by international copyright treaties and conventions. As a rule of thumb, if the work would be protected as a US domestic work, it is protected as a foreign work; in cases where foreign copyright codes are more restrictive than the US code, however, the work may still be protected even though in the US it would be in the public domain.
B. Fair Use
The law establishes four tests that a claim of fair use, that is, a use of someone else's copyrighted work without asking their permission, must meet:
- The purpose of the use
- The nature of the work
- The amount of the work used
- The market effect of use
The law provides no clear, quantitative, direct answers about the scope of fair-use and its application in specific situations. Instead, a potential user must consider the four factors in each and every case of potential use and reach responsible conclusions about the lawfulness of the use. Reasonable people will differ widely on the applicability of fair-use, but any reliable evaluation depends upon an analysis of these four factors.
In making a judgment of fair use, the four factors need not lean in one direction. If most factors lean in favor of a fair use, the activity is allowed; if most lean the opposite direction, the use will not fit the fair-use exception and may require permission from the copyright owner. Educational, non-commercial uses are generally favored over commercial uses of copyrighted works, but copying for educational purposes does not automatically make the use fair. The Copyright Management Center at Indiana University provides a web form for weighing the four factors.
A few court cases have helped to test the limits of fair use, and agreements between copyright owners and organizations representing users of copyrighted materials have published guidelines that flesh out what is "fair" about fair use. Please note, however, that such guidelines, though certainly useful, have no legal standing, and many would agree that, like the "no reproduction under any circumstances" statement on the verso of most books' title page, they are too restrictive for educational institutions.