Frequently Asked Questions and Answers
- I found a work I want to use. How do I determine if it is copyrighted?
- What can I do to ensure that I use a copyrighted work legally?
- Having obtained permission to use something, I can use it for anything I want, right?
- Is it all right to use anything I want as long as it is for nonprofit, educational purposes?
- What is fair use?
- What constitutes fair use of a copyrighted work?
- Do I have to ask a publisher each time I want to use a copyrighted work?
- If I obtain permission to use a work, does that agreement extend to my class, my department, or the University as a whole?
- May I copy or record a work into a different medium?
- May I store or archive copyrighted works?
- May I make copyrighted works available on the Internet?
- Is downloading sound clips and movie clips dangerous to Penn State?
- What should the University do to qualify for the liability limitations?
1. I found a work I want to use. How do I determine if it is copyrighted?
It is important to remember that every audio, visual, or textual work has copyright protection unless that protection has expired over time or its creator places it in the public domain. A work does not need to have a copyright notice or the copyright symbol to be copyright protected. It only needs to be fixed in a tangible medium of expression and contain a modicum of originality. A fixed medium includes, but is not limited to, film, audio and video tape, canvas, paper, and electronic storage. This means that even a person's snapshots, tape recordings, electronic mail, and home videos are protected by copyright.
2. What can I do to ensure that I use a copyrighted work legally?
You generally must seek permission from the copyright owner to use all or any substantial portion of a copyrighted work. In the case of most copyrighted materials, the best place to start is the publisher, who is often authorized to give permission. If not, the publisher may be able to refer you to the copyright owner. Additional permissions may be necessary, depending on the content of the work. For example, a magazine might own the copyright on a photograph of a particular celebrity, but to use the photograph, permission may have to be obtained from the celebrity or the photographer as well as the publisher. When seeking permission to use a copyrighted work, always remember to be very specific about your intended use. Describe in detail such things as your role in using the work (educator, profit seeker, etc.); the medium or media in which the copyrighted work will be used; how many times and in what way the copyrighted work will be duplicated, altered, or reproduced; how many people will see or consume the work; whether or not the intended use is for profit; and how the work is distributed (face to face or over a computer network). Giving such information to the publisher up front will likely enable you to secure permission for that specific use in a timely manner.
Permissions to use copyrighted works are usually granted for specific, one-time uses, but more complex agreements for multiple and standing permissions can be negotiated. Depending on the nature of your intended use of the product and its commercial value, the owner of the copyright may or may not charge a royalty for permission. The amount of such a royalty is established through bargaining, not by law.
3. Having obtained permission to use something, I can use it for anything I want, right?
Not necessarily. Unless a standing permission to use a particular work for any purpose is negotiated, permissions to use copyrighted works are usually granted on a one-time basis for a specific use. A permission for one specific use is restricted to that one use; further permission must be obtained to make broader or additional uses of a work.
4. Is it all right to use anything I want as long as it is for nonprofit, educational purposes?
This is one of the trickiest and least understood areas of copyright law. Using a copyrighted work for educational purposes may be permitted under a legal doctrine known as "fair use," but any use for educational purposes is not permitted automatically. If in doubt, check with the copyright holder, the Copyright Clearance Office at (814) 865-0735 or the Intellectual Property Office at 865-6277.
5. What is fair use?
Fair use is a legal doctrine developed through case law over many years and now embedded in copyright law. It permits courts to interpret the rigid terms of traditional copyright principles, so the creativity that copyright law is designed to foster won't be stifled. According to Title 17 of the U.S. Code, fair use originated "for purposes such as criticism, comment, news reporting, teaching, scholarship, or research." The doctrine of fair use recognizes that the exclusive rights inherent in a copyright are not absolute and that others are entitled to make use of a copyrighted work that technically would otherwise infringe on one or more of the exclusive rights.
6. What constitutes fair use of a copyrighted work?
There are generally four factors that courts use to determine whether a particular use of a copyrighted work is fair use. These factors are for guidance and are not necessarily exhaustive.
- The purpose and character of the use, including whether such use is commercial in nature or is for nonprofit educational purposes; educational purpose is more likely to be considered fair use.
- The nature of the copyrighted work; that is, the extent to which the work is factual or creative. The more factual and less creative a work is (for example, a news report compared to a song), the more likely a use of the work is to fall under purview of the fair use doctrineóall else being equal.
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The amount and substantiality of the portion used in relation to the copyrighted work as a whole. Usually, only short passages of a literary work that do not convey or express the "heart" of the work are permitted under fair use. For the specific case of single visual images, this criterion is often difficult to meet, in that small subsets of an image are not always useful; visual images are usually used in their entirety.
- The effect of the use on the potential market for, or value of, the copyrighted work. For a claim of fair use to hold, the owner or creator of the work should not suffer significant monetary damages from that particular use.
Each of these four points must be considered before a copyrighted work can be used under the doctrine of fair use. Fair use is a complex legal concept, and specific principles of the law governing it are still evolving. There are no simple guidelines to follow.
7. Do I have to ask a publisher each time I want to use a copyrighted work?
Not necessarily. You may be able to use the work under the fair use doctrine (see questions 5 and 6 above), and some exemptions for performance and display by universities and other nonprofit organizations are stipulated in the copyright laws. Additionally, Penn State purchases site licenses for some materials. Managers of specific collections will be able to assist you in determining whether a site license is available for a work. What is and is not permitted is specifically spelled out in each agreement. If using site-licensed material, users need to be sure they are aware of, and comply with, the conditions of the agreement.
8. If I obtain permission to use a work, does that agreement extend to my class, my department, or the University as a whole?
Only if such permission is explicitly stated. Agreements will state exactly which persons or groups within the University are entitled to use a work and for what purposes. For your department to use a product to which only you are given permission, an additional agreement would have to exist between the University and the publisher extending permission to the department as a whole.
9. May I copy or record a work into a different medium?
Regardless of whether you make an exact copy or edited version or, in some cases, create a derivative work from the original in a different medium, the copyright owner has the exclusive right to do or authorize the copying or creating of a derivative work. Making a copy in a different medium without appropriate authorization would be a violation of the owner's rights, unless the activity is excluded under other provisions of copyright law, such as fair use. The making of one copy of a work in a different medium may not be a copyright violation per se, but what you do or intend to do with that copy is important. For example, printing a posted photograph from a computer network just to look at it and then dispose of it may be legally different from printing the image and then keeping it in a file. For concerns or questions about transforming and copying copyrighted material, Intellectual Property Office at 865-6277.
10. May I store or archive copyrighted works?
Storing a copyrighted work is not always permissible under copyright law. For example, if an educator wishes to use a copyrighted work royalty-free, under the fair use provision, such use often must be spontaneous, not premeditated. If something is stored for the purpose of using it at some unspecified time in the future, the condition of spontaneity may not be met. If, however, a user obtains permission to use a copyrighted product, that user is often permitted to make one copy for backup, especially of volatile digital media such as software programs. In any case, you must always secure permission from the owner, if not previously stated, before storing any copyrighted work, unless your use would fall under an exclusion such as the fair use doctrine.
11. May I make copyrighted works available on the Internet?
Only if you own the copyright or otherwise have permission to do so. If you do not have specific permission, the posting would have to fall under an exemption such as fair use. Meeting all the fair use conditions in this instance can be difficult. Often, the condition of not harming potential market value is not met. For example, you might not think it would harm sales of a magazine if you scanned a picture from the magazine and then distributed it on the Internet. This could be true, but the magazine itself might wish to sell issues over a computer network in the near future. In this case, your distributing the image takes away potential market value and is an unauthorized reproduction and an unauthorized public display of the work.
Moreover, if a work is distributed via a computer network, you should not assume it is fair game to use for any purpose. Some products on computer networks are made available with copyright notices. Many are not. Liability for unauthorized copying and distribution can extend not only to the person who might post something but also to those who access, download, and forward the items. In the case of distributing copyrighted materials over a network for educational purposes, fair use would not necessarily cover the action because the teaching is not done in a face-to-face manner. The user would incur any liability for improper use. If you have questions, check with the administrator of the network, bulletin board, or other service where the work is available.
12. Is downloading sound clips and movie clips dangerous to Penn State?
One of the biggest problems associated with the Internet is the fact that valuable copyrighted works including sound clips from CDs and movie clips are posted at renegade sites for anyone to download without paying any kind of fee. This practice has driven many copyright owners to court because they are, in essence, being stripped of their property; however, since the source of the infringements is often an untraceable site in cyberspace, an alternative defendant has been the Internet service provider who links customers to these sites. In our case, the University is the provider.
A key provision of the Digital Millennium Copyright Act (DMCA) states limitations on the potential money damages that On-line Service Providers (OSPs), including libraries and educational institutions, may face when they function like a common carrier, allowing online users access to copyrighted material placed there by someone else. The new law, the On-line Copyright Infringement Liability Limitation, was approved by Congress on October 28, 1998, as part of the DMCA.
13. What should the University do to qualify for the liability limitations?
- Designate an agent to receive statutory notices from copyright owners about infringements and to send statutory notices to affected subscribers.
- Advise the Copyright Office of the agent's name and address and post that information on the OSP's Web site.
- Develop and post a policy for termination of repeat offenders and provide network users with information about copyright laws.
- Comply with "take down" and "put back" notice requirements.
- Ensure that the system accommodates industry-standard technical measures used by owners to protect their works from unlawful access and copyright infringement.
The limitation requires an OSP to take action when it has "actual knowledge" of an infringement (by facts brought to its attention or by notice from the copyright owner), but it does not impose the burden on the OSP to monitor or discover infringing behavior.
Please report knowledge of infringements to Penn State Security Operations and Services (SOS) or send an e-mail to security@psu.edu.