Copyright – Press Books

This chapter originally appeared in PressBooks’ K-12 Article ‘Technology Integration’ by Royce Kimmons. The article is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License (Links to an external site.), except where otherwise noted. You can find the original unedited chapter here (Links to an external site.).

Copyright and Open Licensing

Royce Kimmons

This video is Copyrighted ©BYUIndependantStudy. The video is linked (embedded) to the original YouTube channel so as not to violate copyright law or infringe on the rights of the creators. 

 

Introduction

Copyright is established in federal law and varies from country to country. In the U.S., copyright was written into the original constitution in 1787, wherein it was stated that copyright was established “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries” (Article 1.8.8). Thus, at its foundation, copyright in the U.S. exists “to promote the progress of science and useful arts,” and authors are given control of their creative works for a specified period of time so that they can profit from them, thereby encouraging them to create more.

Types of Works

Copyright applies to any tangible or electronic creative work, such as a book, movie, video, song, lyrics, poem, picture, lesson plan, web page content, etc. Any creative work is copyrighted as soon as it is created.

Intangibles, such as ideas, concepts, and mathematical equations and works that lack originality cannot be copyrighted.

Gaining Copyright

Since copyright applies as soon as a work is created, authors do not need to go through any process to copyright their works. They are copyrighted automatically.

However, proving that you hold the copyright on your creative work is another matter. For instance, say that you write a novel and lend the manuscript to your neighbor to proofread. What is to prevent your neighbor from claiming that the novel is her creative work and, therefore, claiming to hold its copyright?

To help in preventing and addressing copyright problems, the U.S. government allows copyright holders to register copyright with the U.S. copyright office (Links to an external site.). Thus, while an author does not need to do anything to copyright a work, they do need to go through a process if they would like to register the copyright of that work to safeguard against infringement.

The Copyright Symbol

The copyright symbol may be placed on a work to remind and inform users of its copyright status: ©. However, the copyright symbol is only a reminder. The absence of the symbol does not mean that the work is not copyrighted, and the presence of the symbol is not proof that the work is copyrighted (as will be discussed further in the case of public domain works).

Ownership

By default, the author of a work holds the copyright on that work. The main exception to this rule would be if the author was being paid by someone else to create the work and the author had signed a contract stating that work created while on-the-job belongs to the employer—commonly known as “work for hire”. Contracts might also stipulate that this depends upon when and where the work was created (during standard work hours vs. after work hours or in the office vs. at home).

Some educator contracts state that creative works by an educator are owned by the educator, while others state that they are owned by the school or district. So, if you would like to know who holds the copyright of works you create as part of your job, you should check your teaching contract or contact your employer.

Usage

Copyright generally means that others cannot use copyrighted material without the permission of the author and that permissions are restrictive. For instance, downloading a bootleg version of a movie is a violation of copyright, because you did not purchase the copy from the copyright holder. Further, even if you do purchase the movie from the copyright holder, you can only use the movie in the ways that the copyright holder allows (e.g., for private home use, not for public use). Thus, by purchasing a copy of a work, you do not “own” that work in the sense that you are not free to do whatever you like with it. You must still abide by any copyright restrictions placed on the work, which might determine how and where you use the work, your ability to make copies of the work, and your ability to modify the work.

Linking

You can generally provide a web link to copyrighted material from your own materials without permission from the copyright holder. This is different from copying/pasting the copyright material into your own work, because it allows the copyright holder to maintain control of their content and to generate revenue through web traffic. The primary exception to this rule would be if you provided a link to materials that should not be publicly accessible and, therefore, allowed your users to bypass restrictions placed on the content by the copyright holder.

Losing Copyright

Copyright comes with a time limit. The purpose of this is that the U.S. government recognizes that copyright can only benefit the copyright holder for so long and that at some point copyright should expire. Currently, the U.S. copyright law states that copyright ends 70 years after the death of the author. Upon expiration, copyrighted materials move into the public domain.

Copyrighted materials may also lose their copyright status under other conditions. For instance, a copyright holder may relinquish the copyright status on their work, thereby allowing it to pass into the public domain.

Copyright and Technology

Advancing technologies, ranging from the player piano to the internet, have always had unintended consequences for copyright law, and copyright law has always been slow to keep up with advancing technologies. Copyright law has changed over time, but as new technologies empower us to share and use copyrighted materials in new ways and at greater scale, copyright law gradually changes in response.

Common Questions

When is a work copyrighted?

As soon as it is created or published.

Does a work need to be published to be copyrighted?

No, though it must be in some physical form (e.g., manuscript, recording).

Does an author need to register their work in order for it to be copyrighted?

No. Authors may register their work with the US copyright office (Links to an external site.) to protect against infringement, but even unregistered works are copyrighted.

If something is labeled with a copyright symbol (i.e. ©), does that mean it is copyrighted?

Maybe. The symbol serves as a reminder, but the copyright might have expired.

If something is not labeled with a copyright symbol (i.e. ©), then is it copyrighted?

Maybe. Maybe not. The label has nothing to do with whether or not a work is copyrighted. The copyright label only serves to remind and to inform. If you see no label, you should assume that the work is copyrighted and look into the matter further.

Can I link to copyrighted materials?

In most cases, yes. Just be sure that you are linking to the resource as it is provided by the publisher (not uploaded to someone’s personal server, etc.) and that your link does not bypass a copyright holder’s login system.

Can I embed copyrighted materials into my presentation or website (e.g., YouTube videos)?

That depends on the terms of the license that the copyright holder has released the content under. Generally, if a site like YouTube gives you an embed script, then you are able to use it (provided that you do not change the script, remove attribution, etc.).

Additional Resources

Some additional resources that may be useful for exploring these issues include the following:

Copyright Crash Course (Links to an external site.)

Wikipedia: Copyright (Links to an external site.)

Fair Use

Fair use is an exception or limitation to copyright law that allows you to use some copyrighted materials in particular circumstances without the copyright holder’s permission. Specifically, if used for nonprofit educational purposes, some copyrighted materials may be used for teaching, but your use 1) should directly relate to your educational goals, 2) should only utilize a relatively small portion of the work, and 3) should not negatively impact the copyright holder’s ability to profit from the work.

Fair use means that copyright-restricted works can be used for educational purposes without permission under certain conditions. The three guiding principles that determine if use is fair are:

“Fair Use” Guiding Principles

Nature of Use

Type of Work

Amount Used

Commercial Impact

The first principle covers what you are doing with the content and whether your use aligns with the author’s intended use. Fair use only applies to uses of works that are transformative in nature. This means that your intended use must be different from the author’s intended use. Consider a novel. You can quote lines from a novel in a paper you write without permission from the novel’s author, because you are writing the paper to analyze literary elements of the novel, not to tell a story. If, however, you took those same lines and placed them in your own novel, then that would not be an example of fair use, because your intended use would be the same as the original author’s intended use.

The second principle gives greater flexibility in using informational or factual works than to artistic or creative works. Thus, copying a few pages from an encyclopedia is viewed as more conducive to fair use than doing the same with a detective novel, because the information’s benefit to society is readily apparent.

The third principle ensures that you only use as much of the copyrighted material as is necessary to achieve your goal. Thus, quoting a line from a novel would be considered fair use, but copying multiple chapters of the novel for this purpose would not. This is both a quantitative and qualitative consideration, in that you should not use more than is needed but fair use also should avoid using the “heart” of a work.

And the fourth principle considers whether copyrighted material negatively impacts the author’s ability to profit from it. If you copy an article to share with your class, this would prevent the copyright holder from selling access to the article, which would be a violation. However, if you were to copy only a paragraph of an article for this purpose, it is less feasible that the copyright holder would potentially lose money on this use. So, this use would be more defensible as fair use.

Examples

If it weren’t for fair use, you wouldn’t even be able to write a paper that quoted a famous author without permission, which would be a serious matter for scholarly progress. Consider this quote from The Fellowship of the Ring:

All that is gold does not glitter, not all those who wander are lost; the old that is strong does not wither, deep roots are not reached by the frost. – J. R. R. Tolkien

Without fair use, the inclusion of this quote in a paper on literary analysis or on this website would be a copyright violation, because I did not seek the author’s prior consent to make a copy of this text from his book or to distribute it online. However, my use, in this case, is a transformative use and is only large enough to make the educational point, so it is allowable. Would being able to read this quote on this website prevent someone from reading his book (thereby depriving the copyright owner of profits)? Certainly not.

On the contrary, however, if I were to provide several chapters of Tolkien’s book online without prior permission from the copyright holder, then this would certainly be a copyright violation that could be acted upon. Similarly, copying another teacher’s lesson plan, changing a few words, and posting it online would be a blatant copyright violation.

Fair use becomes problematic in education if you are trying to use educational works in your own creations (e.g., materials created specifically for education, such as lesson plans or textbook chapters) and/or you are using too much (such that it might prevent the owner of the copyright from profiting from the work).

Guidelines

To determine if a desired use of copyright-restricted material would fall under fair use, ask yourself four questions:

Use: Is the use transformative? (Yes = Fair Use)

Type: Is the work informational/factual in nature? (Yes = Fair Use)

Amount: Is the use minimal? (Yes = Fair Use)

Impact: Does the use negatively impact the copyright holder’s ability to profit from the work? (No = Fair Use)

Fair use is a judgement call, but the call is made based on the answers to these four questions. Thus, if your answer to all four questions aligns with fair use, then your use would likely be judged as fair. If the answer to one question does not align with fair use, then your use might still be fair, but it increases the potential for it to be judged otherwise. And so forth. In many court cases, uses that met three criteria have been deemed as fair, and in others, uses that only met one or two criteria have been deemed as fair, but there is never any guarantee. In short, only a judge can determine if use is fair, but a judge would use these four guidelines in making the determination.

Institutional Rules

To help safeguard their institutions and employees, many schools will adopt rules for interpreting fair use. For instance, some institutions will allow copyrighted materials to be used up to a certain percent of the work (e.g., a section of a book can be copied as long as it constitutes 10% or less of the entire book). These rules are not perfect reflections of the law but are rather interpretations intended to protect.

Here’s a comparison. Let’s pretend that 55 mph is the speed limit throughout the U.S. but that the government allows for people to exceed this speed limit “a reasonable amount” in particular cases of emergency. If such a law existed, it would be up to judges to determine if any case of traveling faster than 55 mph constituted a legitimate emergency case and if the actual speed was reasonable. Like copyright, this law sounds fairly fuzzy. Let’s also say that you are a bus driver and your school has a rule that this law means that you should only exceed the speed limit if a child is hurt, and in these cases, you should never go faster than 65 mph. Though this is not actually what the law says, it is your school’s interpretation of the law and is intended to keep you and the school safe.

Thus, when considering institutional rules, you should recognize that they are intended to prevent you from breaking a rather fuzzy law but that they also may not entirely reflect what the law actually states. In any case, you are safest abiding by your institutional rules for fair use, because this helps to ensure that your institution will be on your side if there is any question about your copyright-restricted material use.

 

Positive Examples

These are examples that would probably qualify as fair use (i.e. they probably do not violate copyright):

Quoting a few sentences from a book in a paper on literary criticism;

Adding text to a movie screenshot to critique/parody the movie;

Including a paragraph of text from a book in a quiz as background for asking questions;

Showing a short clip from a popular movie to analyze how it was made.

Negative Examples

These are examples that would probably NOT qualify as fair use (i.e., they probably violate copyright):

Copying pages from a workbook for students to complete;

Copying or remixing a lesson plan;

Creating a calendar of pictures that were photographed by someone else;

Including a popular song as background music on a YouTube video your students create;

Holding a public screening of a movie (e.g., classroom, auditorium) that you have purchased for personal use.

Navigating Fuzziness and Risk

Fair use can be very fuzzy, and it may be that educators violate fair use regularly in their classrooms without worrying about legal repercussions. Even if copyright is violated, the risks associated with violation tend to vary by use. For instance, if you copy a lesson plan for use in your classroom without first gaining permission, the odds are that you will not run into any legal issues. However, if you try to sell this same lesson plan online or share it on your teacher blog, then the legal risk increases. This does not mean that you should violate copyright discreetly, but merely that this decision would be based upon a moral imperative rather than legal risk.

The Bottom Line

Fair use is complicated, only provides educators with limited opportunities for use, and is typically more of a headache than it is often worth when talking about any substantive use of copyrighted materials.

Additional Resources

The U.S. Government has recently started archiving court cases related to fair use (Links to an external site.), which may be instructive if you have specific questions about what courts are classifying as fair use and not.

Fair Use, Copyright and “Open” Educational Resources

The use of Copyrighted works in OER materials is common, however, this can also lead to some trouble. If a copyrighted work is used in an openly licensed course (like this one), the material (and it’s license) needs to be clearly stated. The use of copyrighted works does not necessarily stop a resource from being available to others for free (especially if adhering to copyright law),  but there comes a point when a work is simply a compilation of other copyrighted works and that can take this too far. Copyrighted materials should only be used in OER works when an openly licensed equivalent cannot be found or created. For example, an Art History course may need to showcase works that are still under copyright, these may still be used in the course but should be linked to the original source, or permission should be obtained for the image to be uploaded into the course. When in doubt always seek permission to use a work, it never hurts to be sure. We will cover how to seek permission in a later section.