By Ann Springer, Counsel
"Only one thing is impossible for God: to find any sense in any copyright law on the planet.”
Mark Twain’s Notebook, 1902-1903
I. Ownership and Use of Scholarly Work: An Ongoing Legal and Employment Issue
A. The distance education craze of the 1990’s pushed the question of copyright laws into the forefront of higher education legal debate. The creation of classes where the entire course is taught on-line, where reading material, syllabus, teaching notes, commentary and all other aspects of a class are conducted remotely, and most influentially, the possibility of significant profit from that class, forced colleges and universities to start thinking about who owned that material, and how to handle its future distribution, revision and maintenance. Questions arose regarding when and what permissions were required to use the material, how it differed from traditional classes, and how to deal with ownership when every electronic transmission requires mailing a “copy” of the protected work. Teaching and scholarship were increasingly broken down into component parts, and we all continue to attempt to put that round peg of academic work into the square hole of copyright law.
B. While the headlong rush toward computerized distance education has slowed down considerably, it has permanently changed our way of thinking about copyright ownership in academe. The concept of academic work as individual tasks, each with separate, discrete owners, continues to resurface. This itemized approach is difficult to harmonize with common practices in academia. For example,
How can one define what part of a syllabus and class plan is the part the faculty member was hired to create and what part is shaped by the faculty member’s individual, independent thought and research?
Is the content of a class governed by strict departmental rules for “Intro 101” the creation of the department or the individual teacher?
Is the method of the class, governed by grading policies and departmental standards, controlled by the rules of the institution, or the scholarly thinking of the individual faculty member?
II. What is Copyright?
A. The basic law on copyright is fairly straightforward: Copyright law protects original works of authorship fixed in any tangible medium See 17 U.S.C. §102.
Thus copyright belongs, most simply, to the author as soon as the author “fixes” it in writing.
This standard is a fairly easy one to meet; it is much less stringent than that for getting a patent.
Copyright owners don’t have to record their copyright. Copyright can simply be asserted once the work is fixed in a tangible medium. While copyright can be registered (and, if a lawsuit is filed to enforce a copyright, must be registered at that time), such registration is not necessary to create the copyright protection. 1
Covered Works are anything fixed in a tangible medium.
a) This includes books, private letters, paintings, computer programs, motion pictures and other audiovisual work. It also includes anything else fixed, no matter how it is fixed. Thus it includes documents “written” on a computer disk, web pages, notes on scraps of paper, even your grocery list. Anything fixed qualifies for protection.
Copyright does not protect ideas, nor does it protect the labor that goes into creating a written work.
a) No matter how much work goes into compiling data, for example, the data itself is not protected. If a work shows some originality or creativity in the way it is put together, that creative presentation might itself be copyrighted, but the data is not. 2
Copyright only lasts for a limited time.
a) Copyright now lasts for the life of author plus 70 additional years. For commercial products (commercial authors), it lasts 95 years from the date of publication.
b) Note, however, that the legal authority for any time limit on copyright comes from Article I, Section 8, Clause 8 of the U.S. Constitution, which promotes “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.” (Emphasis added). This leaves the specific time to be set by Congress, which keeps expanding the time. It was most recently expanded by the Sony Bono Copyright Term Extension Act (CTEA) of 1998. Legal challenges to the most recent expansion were unsuccessful. See Eldred v. Ashcroft, 537 U.S. 186 (2003).
B. The Bundle of Rights: What exactly does a copyright holder “own”?
Copyright law gives creators the exclusive right and authority to a “bundle of rights.” Thus the author owns not only the specific work, but the right to control its use. See 17 U.S.C. §106.
This bundle of rights includes the right of:
a) Reproduction (the right to control all forms of copying of the work);
b) Translation, abridgment, revision (the right to control derivative works);
c) Public distribution; and
d) Public performance and display.
Therefore ownership includes not only immediate but also future rights. It includes control over future revisions of syllabi, online courses, textbooks, etc., and rights and uses at one’s home institution versus those faculty take with them when they leave.
C. Copyright Ownership Defined:
Ownership of a copyright is different from ownership of a tangible object. See 17 U.S.C. §202.
Ownership of copyright has to do with the right to control future use of the work, separate and apart from the treatment of the physical item on which that work is fixed.
a) For example, if an author writes a book, s/he owns the copyright. S/he has rights over what happens to the content of the book. But if you buy that book in the bookstore, the author does not own your copy. S/he has no right over what you do with that particular copy of the book. You can resell it at a used bookstore, give it to a friend, etc. But the author does have control over how you use the content of the book, and thus can control your reproduction of the book, translation of it, marketing of it, etc.
Transferring a copy of a book does not affect copyright, and transferring copyright does not give a copyright holder property rights to any particular material object.
D. Transfer of Ownership of Copyright (See 17 U.S.C. §204).
Copyright must be deliberately transferred.
Any transfer of ownership must be both in writing and signed.3
a) Thus a blanket institutional policy that is designed to change or transfer copyright ownership in some way may not be legally valid.
b) However, a signed employment contract giving ownership of copyright to another could be construed as a contract and might constitute a valid transfer of rights.
c) Thus policies or collective bargaining contracts defining which categories of work belong to faculty and which to the university, while leaving more grey areas open to resolution by future individual contracts, both set a standard expectation and leave room to accommodate the need for an individual signed writing when necessary.
III. Work For Hire: When the Owner is an Entity or Employer
The “work-for-hire” doctrine is a statutory exception to the general ownership provisions of the copyright law. It is a way of allocating whether an employee or an employer is the author, and thus copyright holder, of work performed in the course of employment. The work-for-hire provision entitles an employer to assert ownership over materials prepared by its employees acting within the “scope of their employment.” See 17 U.S.C. §101 and §201.
Example: If a marketing director for an auto manufacturer writes an advertising brochure, the copyright to that document belongs to the company. The brochure was prepared by an "employee" in the "scope of employment." Thus, copyright is owned by the employer, and the employer has the right to revise, edit and translate the brochure, release it to the public, discard it, etc., whatever the employer chooses.
IV. What is Academic Work and Where Does it Fall?
A. Academic work covers a wide range, from books and articles and student papers to syllabi, class notes and course descriptions, from on-line courses and computer programs to grant proposals and university governance materials. Ownership of these different items depends upon a number of factors, and may vary not only between categories but within them.
B. Quantifying individual aspects of academic work is extremely difficult, because of its vast variety and scope. The majority of traditional faculty work doesn’t fit as work-for-hire, and belongs to the faculty author. However, there are also faculty projects that are highly integrated and dependent upon the administration or outside entities. These are likely to be subject to joint or some other form of shared ownership, or be considered work-for-hire. All but the most clearly “commissioned” works, however, and everything else in between, fall into the gray middle area where individual decisions must be made on a case-by-case basis. 4
C. Faculty Scholarly Work:
Generally, scholarly work is not considered work-for-hire. “[I]t has been the prevailing academic practice to treat the faculty member as the copyright owner of works that are created independently and at the faculty member’s own initiative for traditional academic purposes.” Statement on Copyright (This statement is available upon request by e-mail.), AAUP Policy Documents & Reports 182 (9th ed. 2001).
Despite this general practice and legal understanding, some have argued that even traditional academic works are “works made for hire,” and that the institution is the initial owner of copyright. “The most common standard employed by universities for claiming ownership of faculty works is the ‘use of university resources’ or ‘significant or substantial use of university resources.’ … However, since there is no tradition of applying this standard, the process of defining it will be one of uncertainty for both parties….” Laura Lape, “Ownership of Copyrightable Works of University Professors: The Interplay Between the Copyright Act and University Copyright Policies,” 37 VILL. L. Rev. 223 (1992).
Academic scholarship as work-for-hire raises difficult legal and policy questions.
a) Academic freedom requires that faculty be free to produce work reflecting their own views and theories--not those of administration or trustees. If all work belonged to the administration, then its content would also have to be controlled or at least accepted by the administration.
(1) Courts have generally looked to employer control over the work as a deciding factor in determining work-for-hire ownership. While debate exists as to whether that control must be actual or simply be the right to exercise control, the focus on the employer’s ability to direct the outcome remains.
b) Not only is faculty control of its scholarly work required for academic freedom reasons, but administrations are usually happy to distance themselves from some of the scholarly work of faculty.
(1) If the administration owned all the work of faculty, then it would be responsible for the content. Few administrations want to claim responsibility for every conclusion reached by faculty.
(a) For example, does the University of Colorado want the copyright ownership, and responsibility, for Ward Churchill’s “little Eichmanns” essay? It appears not. As the Chancellor himself stated, “Professor Churchill's views are his own and do not represent the views of University of Colorado faculty, staff, students, the administration or the regents.”
(b) In another example, a professor at Brandeis wrote a book about the composer, Rebecca Clarke, and it was published by the University of Indiana Press. After publication, the owner of unpublished papers by Clarke contacted the press, claiming the book made unauthorized use of the papers. The press withdrew the book, but the owner of the papers also wrote to the professor’s home institution, Brandeis University, asking questions about the “relationship” of the faculty member to the institution. The administration responded that the work was done by the faculty member as an “independent scholar,” and that work of such scholars belongs to the scholar, and not to institution.
(2) If the institution owned the scholarly work of faculty, it would also be responsible for items like negotiating book contracts, publishing agreements, handling revisions and updates, etc. Few institutions have the desire or resources to assume these tasks.
Few court decisions deal directly with work-for-hire in higher education. However, the few that do address the unique position of academic scholarship.
a) Weinstein v. University of Illinois, 811 F.2d 1091, 1094 (7th Cir. 1987): This case involved multiple authors competing over control of an article. An assistant professor sued his college and the university regarding an article he co-wrote on "Teaching Problem Solving in a Post-Graduate Clinical Pharmacy Clerkship." (His co-authors had made changes he didn’t agree with). The district court concluded that the article was the university’s property because the university funded the clinical program which was the focus of the article. The court reasoned that because Weinstein was a clinical professor, he was required to conduct clinical programs and write about them as part of his appointment, and thus the article was a work-for-hire.
The federal appellate court, in an opinion written by Judge Easterbrook, reversed the decision, finding that faculty scholarly work was not work-for-hire. The court noted:
When the Dean told [the professor] to publish or perish, he was not simultaneously claiming for the University a copyright on the ground that the work had become a "requirement or duty.”. . . . When Saul Bellow, a professor at the University of Chicago, writes a novel, he may keep the royalties
b) Hays v. Sony Corp, 847 F2d 412 (7th Cir. 1988): This opinion, written by Chief Judge Posner found that an exception for academic work from the work-for-hire doctrine might be read into the copyright act. “[T]he universal assumption and practice was that, in absence of an explicit agreement as to who had the right to copyright[,] such writing belonged to the teacher rather than to the college or university.” The court also noted that although college faculty write as part of their employment responsibilities and use employer facilities and resources to do so, “[a] college or university does not supervise its faculty in the preparation of academic books or articles, and is poorly equipped to exploit their writings, whether through publication or otherwise.”
The traditional definition of work-for-hire - - whether faculty are “employees,” and whether their work is “within the scope of employment” - - does not provide much clarity.
a) Employees: While the tradition in the academy may be to view faculty as scholars affiliated with an academic institution, under the law there is little debate that professors employed on a salaried basis, with benefits, tax withholding and other symbols of employment, are employees.
b) The Scope of Employment:
(1) The distinction between work and personal development is a harder line to draw for faculty than other employees.
(a) Professors have the unusual responsibility, as part of their employment, to be creative and independent outside of class in their intellectual scholarly life. Thus the position of a professor requires an “employee” who researches and writes not to promote a particular viewpoint of the employer, but one who engages in an independent search for truth and knowledge. This model does not fit into the work-for-hire framework.
(2) As one commentator has noted, “insofar as custom plays a role in determining the intent of the parties to an employment contract, it defines, at least in part, what professors are hired to do. Thus, the longstanding assumption that professors own the copyrights to their works is evidence that the parties do not consider the creation of copyrightable works of authorship to be within the scope of employment.” Laura Lape, “Ownership of Copyrightable Works of University Professors: The Interplay Between the Copyright Act and University Copyright Policies,” 37 VILL. L. Rev. 223 (1992).
(3) Another legal scholar has opined: “Because of the tradition of independence and judgment that are commonly associated with professional activities, the fact that the individual who prepared the work is a professional, such as an architect or university professor, will weigh heavily toward a finding that he, rather than his employer, is the author of ay works that he creates while in the other’s employ.” Paul Goldstein, Esq. Copyright, 2nd ed. §4.3.2 (Aspen Publishers 2005).
D. Meshing Work-for-Hire with Academic Practices
Those instances where academic work is considered work-for-hire are those where the administration provides the specific authorization or supervision for the preparation of the work. Id. 5
a) Some examples of work-for-hire where works are institution-directed, or assigned as an institutional responsibility, are a recruitment brochure written by an admissions director, an affirmative action report written by a department chair, a catalog for the university art museum’s most recent exhibit written by an art professor (which would presumably be outside the art professor’s normal scope of employment).
E. Specific Areas Within Scholarly Work.
Classrooms: Classrooms are generally considered to be an area controlled primarily by faculty.
a) Williams v. Weisser, 78 Cal. Rptr. 542 (Cal. App. 1969): In a professor’s suit to enjoin a publishing organization (known as “Class Notes”) from selling notes of his lectures, Class Notes claimed in its defense that the professor did not own the copyright to his lectures, and thus could not bring the suit. The court concluded that it was “convinced that … the teacher, rather than the university, owns the common law copyright to his lectures.” The court noted that “[no] custom known to us suggests that the university can prescribe [the professor’s] way of expressing the ideas he puts before his students” and university ownership of faculty lectures would create such “undesirable consequences . . . as to compel a holding that it does not.”
b) AAUP policy provides that faculty must hold the copyright to “traditional academic works . . . [where] the faculty member . . . determines the subject matter, the intellectual approach and direction, and the conclusions . . . [T]traditional academic work that is copyrightable—such as lecture notes, courseware, books and articles—cannot normally be treated as work-for-hire.” Statement on Copyright, AAUP Policy Documents & Reports 183 (9th ed. 2001).
c) To the extent that a classroom is controlled by the administration, however, the work-for-hire analysis would change. Thus departmentally designed courses were there is a prescribed syllabus or course content may not belong to the teacher. The extent that a course would be considered work-for-hire is tied directly to the amount of independence given the faculty member.
(1) In Hays v. Sony Corp, 847 F2d 412 (7th Cir. 1988), for example, even when the federal appellate court concluded that “[t]he universal assumption and practice was that, in absence of an explicit agreement as to who had the right to copyright[,] such writing belonged to the teacher rather than to the college or university,” it noted that “we may set to one side cases where a school directs a teacher to prepare teaching materials and then directs its other teachers to use the materials too.”
d) Note, too, the conflict of commitment issues here. Even if classroom lectures are generally considered the property of the faculty, and faculty are presumed to have the right to take them when they leave the institution, the advent of distance education has led to questions of exactly when concurrent teaching, for example, would violate understandings of faculty time commitment.
Arthur Miller, a well-know professor at Harvard Law School, became involved in a controversy with Harvard University after he provided videotaped lectures for the Concord University School of Law, an on-line law school, without Harvard's permission. The controversy clearly raised intellectual property concerns. As Miller posed the query, "How much of Arthur Miller does Harvard own?" It also raised the issue of how conflicts-of-commitment policies apply to online education or "electronic moonlighting." As one commentator noted: "[A]pplication of these general [conflicts of commitment] policies in the Internet era is not . . . straightforward. Why, for example, would the videotaping of a series of lectures for an online institution interfere with one's teaching and research responsibilities, if giving a series of off-campus lectures would not?" Jonathan R. Alger, "A. Miller's Tale: Free-Agent Faculty," Academe: Bulletin of the American Association of University Professors (May/June 2000). 6
Syllabi: Ownership of syllabi depends on control of the outcome. Generally faculty have control of the substance of their syllabi, and are presumed to have ownership of that syllabi. However, some institutions argue that institutions exercise more control over the content of syllabi than they do over books or articles--the courses to be taught, topics that must be covered, and the overall offerings of the department. Institutions often require, for example, that certain provisions or disclaimers be included in syllabi, that syllabi be posted on the web, etc. Thus, some argue that faculty are hired to teach, that teaching and the by products thereof are thus within the scope of employment, and this additional control by the employer institution could transform syllabi into work-for-hire.
a) Williams v. Weisser, 78 Cal. Rptr. 542 (Cal. App. 1969) (professor has ownership of lectures) (discussed above). Such ownership would presumably have extended to the syllabus for that class under the Weisser reasoning.
b) But see Vanderhurst v. Colorado Mountain College District, 16 F. Supp.2d 1297 (D.Colo. 1998). A professor and clinician in Veterinary Technology worked for Colorado Mountain College (CMC) on a series of annually renewable employment contracts for 22 years before being dismissed for misconduct. As part of a lawsuit regarding the dismissal, he claimed that CMC infringed his copyright to a “Veterinary Technology Outline” which was created “in the course of teaching at CMC.” The court, noting that CMC’s policies state that a faculty member’s duties include “program and curriculum development [and] course preparations,” concluded that the outline belonged to CMC as a work-for-hire. It reached this conclusion despite recognizing that “it is undisputed that Vanderhurst prepared the Outline on his own time with his own materials. However, there is no genuine dispute that Vanderhurst’s creation of the Outline was connected directly with the work for which he was employed to do.” Note however, that Vanderhurst was not a tenured or tenure track professor. Moreover, he eventually won his lawsuit against the university regarding his dismissal. The copyright issue was not raised or discussed in the appeal, but the appellate court upheld Vanderhurst’s victory on the dismissal claim. Vanderhurst, 208 F.3d 908 (10th Cir. 2000).
Course descriptions: Course descriptions are another grey area. While they represent an area where a faculty scholarly approach to a subject, they might also be subject to control, and thus ownership, by the university. More than syllabi and lectures, course descriptions prepared for the course catalog, for example, must follow certain strictures. Often institutions control the length, style and even content of such postings. Moreover, faculty are required to create descriptions of their courses in order for students to be able to enroll, arguably supporting the argument that such descriptions belong to the institution as works-for-hire. Again, however, even in such a situation, while the institution may own the description of a course created for that particular catalog, that does not mean it owns the course itself, or the course content.
F. Special issues: Students
Works by students as students are entitled to copyright protection, and belong to the students.
a) Faculty need to get permission from students to copy and distribute their works just as they would any other copyrighted work. Some faculty address this issue by having students sign a waiver at the beginning of the class.
Works by students as employees< are works-for-hire.
a) To the extent students are being paid for work they do, their work is work-for-hire. This payment could take forms other than strict salary, like tuition reimbursement, etc. Again, however, the only work covered would be that directed by the employer and related to the employment. If a paid graduate assistant also does scholarly work during the time as a graduate student, that scholarly work would still belong to the student.
G. Practical considerations:
The copyright rules are vague, so don’t just assume ownership.
Be aware of your institutional polices. Are they clear? Are they realistic? Are they drafted in ways that work practically with the goals of the institution and activities of scholars?
Contract around the rules if they don’t work for your situation.
a) In any project that seems unusual, consider whether a separate contract might be useful. Work up front at setting ownership and expectations, especially on lucrative projects, joint works, grants, special university driven projects, etc., before the project is completed. It is much harder to do it after the fact.
V. Using the Works of Others
A. General Issues to Consider:
Scholars are both creators and users of copyrightable material. As you use your colleagues’ work, so too are they using yours. Would you be comfortable with your work being used in the way you are using the work of others?
Infringement of copyright is not to be taken lightly. Legal responsibility for copyright violations can be both direct and indirect. Thus, not only are individuals responsible for the direct copying they do, but they may be legally responsible even if only contributing to someone else’s copying (infringement), if they act knowingly and make a material contribution to the infringement.
The copyright laws also contain significant penalties for copyright infringement, even if there are no real damages suffered by the “victim.”
Attribution, while an important part of use and citation of others’ work, and important for avoiding plagiarism concerns, is not a protection against copyright infringement claims.
Remember, use of any copyrighted material is a violation of copyright UNLESS it falls into one of the enumerated exceptions discussed below.
B. Fair Use
Fair use is a statutory exception to the general rule of copyright ownership. It affects or limits not who is considered the author and copyright holder, but rather the rights of that copyright holder. The doctrine provides that no matter who owns the copyright, certain uses are not considered a violation of that copyright.
a) The fair use exemption was initially judge created law; it evolved from case law. It was eventually codified in 17 U.S.C. §107, during the 1976 revision of the Copyright Act, and is now a statutory exception.
Notwithstanding its now-codified status, the fair use exemption is still vague and unclear, depending on the specific facts and circumstances.
Because of this lack of precision, fair use analysis can be extremely frustrating. As one court put it, the doctrine is “so flexible as virtually to defy definition.” Time Inc. v. Bernard Geis Assoc., 293 F. Supp. 130, 144 (S.D.N.Y. 1968).
The fair use analysis is based on two basic concepts: the purpose of the use and the fairness of how that the work is used.
a) Purposes: The fair use doctrine says that copying for certain purposes will not be considered a violation of copyright because there are certain purposes where copying betters society.
(1) The statute sets out a non-exclusive list of purposes that are assumed to be of benefit to society and thus eligible for fair use protection. While this list does not include all possible fair use purposes, it can be viewed as setting out a premier set of uses that deserve preferred status in the application of fair use. See Robert A. Gorman, Copyright Law (Federal Judicial Center 1991).
(2) This “preferred” list includes uses crucial to faculty, such as criticism, comment, teaching, scholarship, and research, which form the basis for most of the classroom and research copying faculty do.
(a) This list, however, is clearly illustrative, not exhaustive. Note, for example, that the two Supreme Court cases addressing this issue, Harper & Row Publishers v. Nation Enterprises and Sony Corp. of America v. Universal Studios, Inc., do not seem to follow this list. Harper dealt with news reporting, one of the enumerated factors, but was found not to be fair use, and Sony dealt with private videotaping of television programs, a use clearly beyond the “preferred” list, yet was found to be fair use. (see further discussion of cases in IV.B.6 below.) It is this particular provision that makes fair use the legal basis for much of classroom use of copyrighted materials.
(3) The list of purposes includes use not only by citation or reference, but also by reproduction in copies, including multiple copies for classroom use. It is this particular provision that makes fair use the legal basis for much of classroom use of copyrighted materials.
b) Fairness Factors: The fair use analysis does not stop at the list of enumerated purposes, however. Courts also look at the way the materials are used for that purpose. The use must be fair. The statute sets out four factors for courts to consider in determining whether a use is fair use.
(1) The “purpose and character” of the use, which includes whether it is a commercial use or an educational and/or non-profit use.
(a) The general rule is that commercial use is presumed not to be fair use. See, e.g. Sony Corp. of America v. Universal City Studios, 464 U.S. 417 (1984) (“[I]f the intended use is for commercial gain, [the] likelihood [of future harm] may be presumed.”)
(1) The idea is that if someone is profiting from use of a copyrighted material, the copyright holder should be benefiting from that use.
(2) The Nature of the Work:
(a) This second factor is designed around the idea that there should be greater access to works of fact or information. The point of the copyright law is to increase public knowledge by encouraging creation of information, and thus factual, informative materials are more likely to be subject to fair use than purely entertainment based materials.
(b) This factor also can implicate the availability of the work. If the work is somehow unavailable (out of print, never reproduced, etc.) then this aspect of its nature would make it more likely to fall under fair use.
(c) Unpublished works would also receive special consideration under this factor. The rights of the author to control the distribution of the work and its presentation would weigh more heavily against a claim of fair use if the work had never been published, than if it had already been made available. See Harper & Row, 471 U.S. 539 (1985).
(1) Note however, that the drafters of the copyright law added the last sentence of the statute, “[t]he fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.” The sentence makes clear that while the unpublished nature of a work is a consideration, it is not the only consideration nor a complete bar to a finding of fair use.
(3) How Much is Too Much? (“The amount and substantiality of the portion used in relation to the copyrighted work as a whole”).
(a) The third factor is directed at whether the amount of work used is more than necessary to achieve the protected purpose. There is no magic amount of pages or particular number of words that makes copying fair use.
(b) Courts will look to whether the user took only what was necessary to effectuate the purpose of his or her use, or whether the copying exceeded that which was necessary to make the point.
(1) Example: In a case involving parody, a certain amount of use is necessary to evoke the work being parodied. But replaying a whole movie as part of creating a parody of that movie would be excessive copying. See, e.g., Metro–Goldwyn-Mayer, Inc. v. Showcase Atlanta Cooperative Productions, Inc., 479 F. Supp. 351 (N.D. Ga. 1979)(court found that “Scarlet Fever,” a musical based on Gone with the Wind, had so many similarities of character theme, dialogue, etc. that it was neither a parody nor a satire, but instead an unauthorized adaptation of the novel).
(c) Note, too, that work that was initially fair use under this factor may move outside of fair use protection with repeated use. Material distributed to one class with a limited number of students might be analyzed differently if that same material continues to be used class after class, or is distributed more widely through distance education or other means.
(d) This third factor also has a qualitative element, as well as quantitative. For example, in Harper & Row, the copied amount was a small portion of the total book, but because it was the heart of the work (and the most commercially important part (see 4 below)), the court considered its copying not to be fair use.
(4) The Market Effect (“the effect of the use upon the potential market for or value of the copyrighted work”)
(a) Courts use this fourth factor to look at who is profiting from the work, both now and in the future.
(b) Courts consider not just actual harm, but potential harm. See, e.g., Harper & Row 471 U.S. at 568 (To negate a fair use claim, a copyright holder must only show “that if the challenged use ‘should become widespread’ it would adversely affect the potential markets for the copyrighted work.”).
(c) This factor has been key in some of the coursepack cases, where the courts have found copy shop production of coursepacks not to be fair use. See, e.g., Princeton University Press v. Michigan Document Services,” 99 F.3d 1381 (6th Cir. 1996) (court concluded that the market effect was “the most important factor,” and ruled that the publishers established a “diminution in potential market value.”)
Some Fair Use Cases
a) Sony Corp. v. Universal City Studios, Inc. , 464 U.S. 417 (1984): Owners of the copyrights of publicly broadcasted television programs brought suit against Sony for manufacturing what were then known as VTRs (video tape recorders, now VCRs). The copyright holders alleged that consumers had been using the VTRs to record copyrighted works, and that Sony was liable for such copyright infringement because of its marketing of the VTRs.
The Supreme Court concluded that the primary use of the machine for most owners was "time-shifting," the practice of recording a program to view it at a later time and later erasing it. It then went on to conclude that the evidence showed a significant likelihood that a large number of copyright holders who license their works for broadcast on free television would not object to having their broadcast time-shifted, and that no likelihood existed that time-shifting would cause significant harm to the potential market for, or the value of, the TV programmers’ copyrighted works. Accordingly, the Supreme Court determined that the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses.
b) Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985): In this case involving the memoirs of former President Gerald Ford, Harper & Row publishers had a contract to publish the memoirs, and an agreement with Time Magazine to allow Time to publish certain portions of the manuscript ahead of time. Before Time’s article came out, however, the Nation magazine obtained a copy of the manuscript and published an article on it. The Nation’s article used excerpts from Ford’s manuscript, including portions discussing Ford’s pardon of former president Nixon.
Harper & Row sued the Nation, arguing copyright infringement. court agreed. The appellate court, however, found the Nation’s use of the material to be fair use. The court determined that the portion of the material that was historical facts, quotations and information from public documents could not be considered copyrightable, and noted that once that material was removed, there were only about 300 copyrightable words remaining. The court, heavily influenced by the "politically significant" nature of the subject matter, and noting that the purpose of the copyright act is not to "chill the activities of the press by forbidding a circumscribed use of copyrighted words," determined that the purpose of the article was newsreporting and therefore fair use.
The Supreme Court found that the rights conferred by copyright are designed to assure contributors to the store of knowledge a fair return for their labors. The Court noted particularly the unpublished nature of the work, and that the use, while fairly small, took the most marketable, “heart” of the work. It also concluded that an author should have control of the first release of a work and that "[u]nder ordinary circumstances, the author's right to control the first public appearance of his undisseminated expression will outweigh a claim of fair use." Finally the Court noted that “[t]he obvious benefit to author and public alike of assuring authors the leisure to develop their ideas free from fear of expropriation outweighs any short-term ‘news value’ to be gained from premature publication of the author's expression,” and that “[t]he fact that the words the author has chosen to clothe his narrative may of themselves be ‘newsworthy’ is not an independent justification for unauthorized copying of the author's expression prior to publication.”
c) Coursepack Cases:
(1) Princeton University Press v. Michigan Document Services, 99 F.3d 1381 (6th Cir. 1996): An academic publisher sued a copy shop that bound segments of scholarship into “course packs” for copyright infringement. The court found that the fair use doctrine did not obviate the need to obtain permission to reproduce the works. The court explained that the fair use doctrine “permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” At the same time however, the court decided that the fair use doctrine allowance of multiple copies of classroom use does not provide “blanket immunity.” The court reasoned that the factor regarding “the effect of the use upon the potential market for or value of the copyrighted work” was “the most important factor” in the fair use exemption, and ruled that the publishers established a “diminution in potential market value.” The court also noted that the professors assigned as much as 30 percent of one copyrighted work, and found that amount not “insubstantial.”
(a) Publishers continue to file cases against copyshops selling coursepacks. See Elsevier Science v. Custom Copies and Elsevier Science v. Westwood Copies, Inc.: These cases were brought by various presses against copyshops selling coursepacks to students at the University of Florida at Gainesville and at UCLA. In both cases the copyshops settled with the publishers for an undisclosed amount in 2003.
Guidelines for Classroom Copying: There have been attempts between publishers and educators to set forth some common ground of accepted fair use in the classroom. The result is a list of at least some activities that are accepted as fair use. Fair use almost certainly goes beyond these accepted terms, and the agreement has little binding force legally. However, it does establish a safe harbor of sorts, in that it sets out some parameters that all sides can agree on. So, for example, it is agreed that faculty in general may create copies for use in teaching or research of a book chapter, an article from a newspaper, a short story or essay, or a chart or cartoon or picture from a book. Even such copies, however, are subject to restrictions as to amount, time, number of classes, etc. For greater details, see “Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with respect to Books and Periodicals” www.copyright.gov/circs/circ21.pdf
Practical Considerations for Fair Use:
a) Consider whether, if others used your work as you are contemplating using theirs, would you lose money? Would you consider it a sufficiently limited and justifiable reference? Would you have wanted them to ask permission? Pay a fee? Would you have been willing to give permission if you had been asked?
b) Would you be upset? The Supreme Court has referred to this approach as the "equitable rule of reason;" "[Perhaps] no more precise guide can be stated than Joseph McDonald's clever paraphrase of the Golden Rule: 'Take not from others to such an extent and in such a manner that you would be resentful if they so took from you.'" Harper & Row, 471 U.S. 539, 550 n. 3 (citing 3 Nimmer § 13.05[A], at 13-66, quoting McDonald, Non-infringing Uses, 9 Bull. Copyright Soc. 466, 467 (1962)).
c) Remember that acknowledging the source is important in research, but does not substitute for permission in using the work.
d) Keep in mind that the users’ inconvenience is not a factor in the fair use analysis. Therefore, the fact that the piece is really needed for class tomorrow, or that the faculty member doesn’t have the phone number of the author or the money to pay for use are not valid excuses.
e) In making coursepacks:
(1) Making copies in a university in-house copy shop, rather than a commercial one may be helpful. (The closer tie to the university and the removal of the profit receiving middle man, provide better support for a fair use, “multiple copies for classroom use” argument.)
(2) Consider whether the copyshop gets permissions for you, or whether you need to follow up yourself.
(3) Be brief and sparing in excerpts.
(4) Attribute excerpts.
(5) Get permission.
(a) If use of a work is truly spontaneous, you might be able to argue fair use, but if you have time to get permission, do so. Note too that even if the first use is spontaneous, you will still need to get permission for future uses, as the spontaneity argument will not be available with repeated use.
Pointers to Consideration of Fair Use in the Electronic World:
a) Many of the same considerations for fair use exist in the electronic classroom as exist in the traditional classroom. However, the electronic classroom amplifies all the risks of the traditional classroom.
(1) Every time you download a web page, you are copying someone's work. The web is essentially one big photocopier; every time a webpage is viewed, or forwarded in an email, copies are made of it. That consideration becomes increasingly important when such uses move beyond downloading one’s own research to distributing that webpage to students around the country or globally.
(2) Similarly, posting something on your own webpage can be a violation of the author’s copyright, even if you got it from another webpage, and even if you attribute it.
(a) Example: A lawsuit was filed by an author against colleges and universities for allegedly allowing people to use their webservers to post copies of his self published book on income tax laws. While the institutions may be protected because they are only involved as owners of the servers, not controllers of the individual websites, (and the courts dismissed the case against the webserver operators), the faculty or other members of the university community who may have posted the book could be liable for copyright infringement. “Colleges Are Unconcerned by Online Author’s $2.6 Billion Copyright Lawsuit,” Chronicle of Higher Education (March 7, 2002); Mitchell v. AOL Time Warner Inc., et al., 2002 U.S. App. LEXIS 26313 (December 2, 2002).
b) The greatest risk of technology is that it means more people see what is being done. Posting something on the web puts it “on the radar screen” much more than when in a traditional classroom.
c) Greater publication also means greater harm to the copyright holder. The more you cover the market by your use of the copyrighted work the more potential financial harm to the person whose copyright is violated.
d) Materials presented on the web have a much longer lifespan than hard copies in traditional classrooms. They tend to have a life of their own, staying up and accessible for years, increasing the risk of infringement and liability.
C. Teacher Exemption §110 and the Teach Act
Section 110 is another statutory exemption to the bundle of rights belonging to the copyright holder. It sets out certain uses that will not be considered violations of copyright.
a) Originally passed in 1976, it was designed to deal with the then looming onset of televised education. Thus it covered face-to-face classroom performances of copyrighted works, including dramatic works, for teaching purposes in nonprofit educational institutions.
b) The statutory provision was made obsolete by the advent of web-based distance education, however, and the statute was in need of amendment for many years.
Congress finally passed the Technology, Education, and Copyright Harmonization (TEACH) Act in 2002. It amends Section 110 so that while the section continues to deal with the performance of nondramatic literary and musical works, it also addresses issues of asynchronous, web-based distance education. It is a balancing act between educators and copyright holders. It benefits educators by making it possible to use displays and performances of copyrighted material for educational use. But it also includes a long list of safeguards to prevent works from being used outside of the educational context.
Section 110 is different from Section 107 (fair use) because Section 110 doesn't require the use to be fair. There is no balancing of factors or analysis of motive. Rather, it sets out specific limited uses that are automatically protected. The flip side is that the teacher exemption is also more limited than fair use; it sets out very specific uses and very specific criteria, and is thus much narrower than fair use.
Section 110(1) is the old law, and still protects the type of in-person displays that it has always protected. Section 110(2) is the new part of the law. The law now provides that the following activities are not infringements of copyright:
a) § 110(1): Exempts from copyright violation the performance or display of any work done in:
(1) the course of face-to-face teaching activities of a nonprofit educational institution, (including performances or displays by students and/or professors),
(2) which are presented in a classroom or similar place devoted to instruction.
b) §110(2): Extends this coverage to performance via digital transmission of:
(1) an entire non-dramatic literary or musical work,
(2) a limited and reasonable portion of all other works, including videos, films, and dramatic musical work,
(3) a display of still images in amounts typical of face-to-face displays in classroom.
c) The new part of Section 110 contains significant restrictions, however, that educators must be aware of. There are responsibilities both to the instructors, and to the institution.
(1) all displays or performances must be made to students officially enrolled in the course, wherever the students themselves are located (dorm, work, home, class, library, etc.),
(a) thus there must be protections to ensure, “to the extent technologically feasible,” that web postings, for example, are not accessible to those other than the enrolled students.
(2) all displays or performances must be part of “mediated instructional activities” of an accredited institution
(a) Use of the work should be an integral part of the class session
(b) Use of the work should be directly related and of material assistance to the teaching of the course
(3) institutions must have technological measures in place that reasonably prevent students from retaining or redistributing material
(4) the institution can’t interfere with technical protection measures of the copyright holder, i.e. it can’t circumvent or otherwise go around copying protections the copyright holder has put in place, and
(5) The institution must adopt and maintain institutional policies on copyright and give notice that materials might be copyrighted, which means that the institution must not only have a copyright policy, but must provide copyright notices, and inform faculty, students and relevant staff about copyright law.
(6) The Section 110 exemption doesn’t cover:
(a) any copy that is “not lawfully made and acquired,”
(b) any materials that are “produced or marketed primarily as part of mediated instruction activities transmitted via digital networks”. (In other words, it doesn’t cover anything designed and marketed to the distance education market, on the theory that such materials are designed to be purchased, and copyright holders should benefit from that purchase.)
(c) products typically purchased by students, like textbooks or coursepacks, again on the theory that copyright holders should benefit from that purchase.
General Points on The Teacher Exemption
a) The statutory exemption is broadly titled but is limited to specific situations. It should not be seen as a catch all, but as a limited protection for specific types of instruction.
b) It is not a replacement for fair use.
c) It provides some more options than fair use, but be careful of all the caveats.
d) Institutions are now putting in place the protections and policies necessary to make use of this new law. It provides a good opportunity for faculty and administration to work together toward the common goal of providing grater copyright protection for classroom use of materials while at the same time protecting the institution and faculty from legal liability.
Following are some resources for further legal and general information on copyright:
AAUP compiles articles (from Academe and elsewhere), commentary, institutional policy development, legislative information, and AAUP policies on the Intellectual Property section of its website.
The Yale Library has a website with an extensive list of copyright links and resources, from links to the law itself to tutorials discussing particular issues. http://www.library.yale.edu/~okerson/copyproj.html.
The American Library Association (ALA) and the Association of Research Libraries (ARL) recently released a statement on “Applying Fair Use in the Development of Electronic Reserves Systems.” That statement, along with other sample institutional policies, is available at
Stanford University Libraries also have an extensive Copyright and Fair Use website, including links, informational materials and tutorials: http://fairuse.stanford.edu/.
Georgia Harper in the University of Texas System Office of General Counsel is Manager of the Intellectual Property Section of the institution’s website, and a renowned expert in copyright law. She has created a site with very useful resources, including a crash course in copyright and other information: http://www.utsystem.edu/ogc/intellectualproperty/
The United States Copyright Office has a website with many resources, including links to the entire copyright law and regulations: http://www.copyright.gov/.
The Copyright Management Center managed by Professor Ken Crews of the Indiana University-Purdue University at Indianapolis Law School includes a number of valuable resources: http://www.copyright.iupui.edu/.
1. Note: Thus the © symbol is not a requirement to make an item protected, nor is the lack of such a symbol any indication that the work is not copyrighted. However, including the © symbol is an easy way to send a clear reminder to readers that the work is protected and that the author values that protection. Back to text
2. Feist Publications Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991). In this case the Supreme Court held that alphabetical listings in telephone directory white pages are not copyrightable. The Court allowed copyright protection for compilations or directories only for any original and creative elements of the arrangement or selection, and excluded protection of the underlying data. In doing so the Court rejected a number of decisions supporting a “sweat of the brow” doctrine (which allowed copyright protection based on the amount of work involved, rather than strictly on originality or creativity). The Court concluded that the sweat-of-the-brow doctrine went too far in that it “extended copyright protection in a compilation beyond selection and arrangement…to the facts themselves.” Back to text
3. Courts generally interpret the signed writing requirement fairly liberally, allowing, for example, a signed check to suffice. See, e.g., Franklin Mint Corp., v. National Wildlife Art Exch., Inc., 195 USPQ 31 (E.D. Pa. 1977), aff’d, 575 F.2d 62, cert. denied, 439 U.S. 880 (1978). But an agreement that is signed just by the recipient of the copyright, but not by the assignor (the copyright holder) has been held not to be a valid transfer of ownership, even though the copyright holder had accepted payments under the agreement. See Berger v. Computer Info. Publishing, Inc., 1984 U.S. Dist. LEXIS 15291 (S.D.N.Y. 1984). See generally, Paul Goldstein, Copyright, 2 ed. §4.5 (2005). Back to text
4. A Kansas court recently faced these issues in determining whether copyright ownership was a mandatory subject of bargaining. The state appellate court ruled that the Regents were not required to engage in bargaining with the union on copyright ownership issues because such a practice would conflict with federal law’s provision that an author may negotiate away his or her intellectual property rights but cannot be required to do so. The appellate judge reached this decision by assuming that the faculty members’ intellectual property was work-for-hire, and thus the property of the University. However, on appeal the Kansas Supreme Court ruled that intellectual property rights are not simply assumed to be work-for-hire belonging to the university, such reasoning was “too big a leap.” Instead, the court recognized that the question of ownership of faculty work is a complex one, depending on a careful analysis of the employment relationship and the reason for and method of creation of the work itself and “will necessarily involve not just a case-by-case evaluation, but potentially a task-by-task evaluation.” See Pittsburg State University/Kansas NEA v. Kansas Board of Regents, PSU and PERB, 280 Kan. 408 (Nov. 10, 2005).Back to text
5. AAUP policy holds that for faculty work to be work-for-hire, it requires use of extra-ordinary resources; use of traditional resources “such as office space, supplies, library facilities, ordinary access to computer and networks, and money,” are not sufficient to make faculty work into work-for-hire. See, Statement on Copyright, AAUP Policy Documents & Reports 182 (9th ed. 2001). (Note that the focus is on what is ordinarily provided, not on the amount of resources. Thus while the resources received by a physicist staffing a lab will be much higher than those given an English professor, that does not transform the physicist’s work into work-for-hire.) Back to text
6. For more information on conflicts of commitment, see AAUP Legal Information Outline, Faculty Employment Outside Of The University: Conflicts Of Commitment (Donna Euben, March 2004). Back to text