A Guide to the Use of Copyrighted Materials on Instructional Web Sites
by Jonathan Henke
What Works Are Copyrighted?
What is Fair Use?
Appendices & Links
The development of instructional web sites often involves the use of text, images, or other materials which are protected by copyright law. Improper use may violate the law and subject the instructor, designer, and/or school to legal action. Copyright law does provide both general and specific exemptions for educational purposes, to allow for uses which might otherwise be illegal. These exemptions are not unlimited, however. The Fair Use exemption is the most generally applicable, but its boundaries are notoriously vague.
The development of guidelines can assist insructors and web designers in understanding and following the law. The following guidelines are provided specifically for the use of copyrighted materials on instructional web sites.
What Works Are Copyrighted?
Copyright protects "original works of authorship" that are fixed in a tangible form; it includes:
- 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
Copyright gives the owner the following exclusive rights:
- Creation of Derivative Works
- Public Performance
- Public Display
Under current law, a work is protected from the moment it is created and fixed in tangible form. It is protected even if it is unpublished, and registration is not required.
Copyright is granted for a limited time period. Works created today are protected for the life of the author plus 70 years or (for anonymous, pseudonymous, or corporate-authored works) 95 years after creation. Works created in the past were subject to different limitations. Prior to 1964, copyrights could be renewed after their original term. If a copyright was not renewed, the work lapsed irrevokably into the public domain.
Any work originally published before January 1, 1923 is definitely in the public domain. Works created or published on or after that date may or may not be protected.
Note that a copyrighted work may be created from underlying material which is subject to different rights, essentially producing "layers" of copyrights. In order to use such a work, you need permission not only of its copyright owner, but also of the owners of the underlying copyrights. Also note that a copyrighted work may include underlying material which is in the public domain. In such a case, one may legally extract the underlying public domain material from the copyrighted work.
An edition of a play by Shakespeare may be copyrighted. The copyright covers the layout, formating, typesetting, etc.; the underlying text is in the public domain and may be extracted and reproduced.
The song "Happy Birthday" is under current copyright protection. Courts have ruled that both the words and the tune independently are public domain: the words lack sufficient originality, and the tune was a common, pre-existing tune. Nonetheless, the combination of the two is copyrightable.
This is why restaurants always have their own, different Happy Birthday songs. (Note that copyright only protects the right to public performance; you don't break the law by singing it in your own home.) Also note that the public domain tune or words may be extracted and used, but not in reference to each other.
What works are in the public domain (not copyrighted)?
Any work whose copyright has expired, including anything originally published before January 1, 1923.
Any work published in the U.S. before January 1, 1978 without a copyright notice. Before that date, a copyright notice was required in order to secure copyright. (Today works are automatically copyrighted.)
Any U.S. Government work, including court opinions, Congressional bills and testimony, and government reports, as well as images held by the National Archives and Records Administration, available here. Works prepared by third parties under contract to the U.S. Government may be copyrighted.
What is Fair Use?
Congress has established several exemptions to copyright protection - legal uses of otherwise protected materials - including "fair use". Valid purposes include criticism, comment, news reporting, teaching, scholarship, and research. Four factors must be considered in determining whether a specific use is "fair":
(1) the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
All four factors must be taken into account. The fact that a use is for an educational purpose does not automatically make the use legal.
The Supreme Court has made clear that there can be no hard and fast line delimiting fair use; it must be determined by the courts on a case-by-case basis. [Campbell v. Acuff-Rose Music Inc., 510 U.S. 569, 577 (1994).]
In order to be sure that a particular use qualifies as fair use, educational web site designers should:
- use copyrighted materials only for strictly educational purposes,
- work for an accredited non-profit educational institution,
- limit access to the works to students enrolled in the course,
- use only a small fraction of any copyrighted work,
- avoid uses which would affect the market for the work, and
- when possible, use technology to limit unauthorized, downstream copying of the work.
Because of the ambiguity of the Fair Use exemption, sets of guidelines have been developed to aid in interpretation and application of the the law. The Conference on Fair Use (CONFU), which was commisioned by the administration's Information Infrastructure Task Force, met from 1994 to 1998 and produced several sets of guidelines (See Appendix E). These guidelines were developed through a negotiation process between multiple interest groups, including educators, libraries, media centers, and organizations of copyright owners. The most applicable to academic web sites are the "Fair Use Guidelines for Educational Multimedia", developed jointly with the Coalition of College and University Media Centers (CCUMC).
Although lacking any legal force, these guidelines represent a consensus among interested parties about the boundaries of Fair Use. In essence, they are a negotiated truce; if users agree not to overstep these boundaries, copyright owners agree not to sue. Legally, such guidelines should be viewed as a "floor", rather than a "ceiling"; they are a safe haven, within which users can be confident of the legality of their actions. The exact boundaries of Fair Use, however, can only be determined by the courts.
These following guidelines, however, are not the result of such a process of negotiation. They are based partly on the CONFU guidelines, partly on the "University of California Policy and Guidelines on the Reproduction of Copyrighted Materials for Teaching and Research" (April 1986) (See Appendix D), and partly on my own interpretation of the Copyright Law.
Guidelines for the Fair Use of Copyrighted Materials on Instructional Web Sites
Types of Uses:
- These guidelines apply only to non-profit accredited educational institutions and to non-commercial uses.
- Works shall be copied only if they are part of the course curriculum. Copies may not be made simply for decoration or for entertainment.
- Copies shall not be made from any work designed to be "consumable" in the normal course of study or instruction, e.g., workbooks, exercises, standardized test booklets, answer sheets, or similar consumable materials.
- The use of copyrighted material shall not substitute for the purchase of books or other materials. The work shall not be used if there is a reasonable likelihood that the instructor would have assigned the work and the students purchased it, had the on-line version been unavailable.
- When possible, access to copyrighted materials shall be limited to students currently enrolled in the course, through the use of passwords, domain-name filtering, or a similar technology.
- When possible, technological means shall be used to prevent the unauthorized downstream copying of copyrighted materials, for example, the use of streaming audio or video.
- Otherwise, the site shall include a prominent warning on each page including copyrighted material or on the front page of the site, warning students that they are forbidden by law to make their own copies of the material.
- If anti-copying technology is unavailable, material shall be made available only while necessary for the course of instruction and not longer than 45 days.
- If anti-copying technology is used, material shall be available only during the course of the class and only to currently enrolled students.
- The instructor may reuse copyrighted materials for the same course taught during different terms only for two years following the initial use. For any instructional use beyond the two year period, permission must be obtained.
- After the completion of the course, the web site including the copyrighted material may be archived for the instructor's or the designer's personal portfolio.
Portions used from copyrighted materials are subject to the following length restrictions:
- Motion pictures or other motion media - 10% or 3 minutes, whichever is less.
- Music or sound recordings - for short works (eg, an individual song), 10% or 30 seconds, whichever is less. For longer works (eg, an opera), mutiple clips may be used, but no individual clip may exceed 30 seconds, and the clips in total may not exceed 10% of the work.
- Photos or images - An image may be used in its entirety, provided that no more than 5 images are used from one artist or photographer, and no more than 10% or 15 images (whichever is less) from a published anthology.
- Text - A complete article, essay, or story of not more than 1500 words may be used, or for longer works, excerpts totalling not more than 1500 words. A complete poem of not more than 250 words may be used, or for longer poems, excerpts totalling not more than 250 words; but no more than 3 poems may be used from the same poet or no more than 5 poems from the same copyrighted anthology.
- Alterations may be made to copyrighted works only to support specific instructional objectives.
- Any alterations must be self-evident (for example, text superimposed over a photograph) or must be noted on the web site.
- Copyright information must be provided for each copyrighted work. The copyright notice shall be of the form: © (or the word"Copyright") + the copyright year + the name of the copyright owner (e.g., © 1999 Jonathan Henke). There is no legal precedent for the use of "(c)" as a substitute for "©".
- In the case of textual materials, the copyright notice shall be included in the same document as the copyrighted text.
- In the case of images, sounds, film clips, or other non-textual materials, when possible, the copyright notice should be embedded in the item itself, either visibly or invisibly.
- In the case of non-textual materials, when the copyright notice cannot be embedded in the item itself, or when such notice is invisible to the user, the copyright notice shall be included on the HTML page in which the object is embedded or from which the object may be selected.
- Alternatively, the copyright notices from the entire site may be combined into a single page, provided that a link to that page is available from each page that includes copyrighted content.
- Copies for use on educational web sites may be made only from lawfully acquired materials and must not violate any licensing agreements made to obtain the material.
- When practical, rather than duplicating a copyrighted work, a web site should provide a link to an existing, legal, on-line resource. However, a web site must not link to materials which the instructor or designer has reason to believe infringe copyrights.
- Use caution when downloading materials from the Internet. Instructors and designers should assume that any material found on the Internet is subject to copyright protection.
Appendices & Links:
Appendix A: Relevant Portions of US Copyright Law
Appendix B: All of the US Copyright Law (PDF format)
Appendix C: Duration of Copyright (US Copyright Office Circular 15a) (PDF format) - helpful in determining when and if a work has entered the public domain.
Appendix D: The University of California's Copyright Policy (including its interpretation of "fair use")
Appendix E: CCUMC Report from the Conference on Fair Use (CONFU). Includes guidelines for: Digital Images, Distance Learning, Educational Multimedia, Electronic Reserve Systems, Interlibrary Loan and Document Delivery, and Use of Computer Software in Libraries
Link: The United States Copyright OfficeLink: Consortium of College and University Media Centers - Copyright Initiatives
by Jonathan Henke
from the Web Site Development project
last modified: December 17, 1999