Copyright Principles in Action

APPENDIX B

Frequently Asked Questions

Copyright Oregon State Board of Higher Education 1999

For quick access to a particular FAQ of interest, you can click on any underlined topic descriptor below and go directly to the question-answer that could help you. If you just want to scan through all the questions, simply scroll past this topical index and start reading.

Attribution to author and fair use

Book reviewer’s rights to copy

Consulting jobs and IP rights

Copyright term

Course packets, AAP Guidelines

Course packets, court decision

Course packets, spontaneity

Deceased authors

Digital copies of text made by library

Digitized images, theory and court decisions

Electronic reserves

Faculty contracts directly with publishers

Faculty web pages

Fair Use ("teaching, scholarship, and research")

Government publications, use of

Images, digital manipulation of

Journal articles, permission to copy

Lectures, recording of

Library reserves

Library, scholar’s exemption

News, copying

"Off-air" taping

Out-of-print sources, copying from

"Public display" of image

Publishing contracts, directly with faculty

"Safe harbors", AAP Guidelines

Scanning photos; are photos creative works?

Student work, faculty IP rights in

Telecasts, taping of

Telecourses, faculty IP rights

Textbooks written by faculty

Videos, rented

Web pages, faculty sites

World Wide Web sources

1. Can I copy works produced by the federal government?

Yes. Works created by federal government employees in the scope of their employment are not entitled to copyright (Act, sec. 105). However, the government may purchase or receive assignments by gift or bequest of other’s copyrights and, in those cases, the usual rules apply to copying the work. Also if a contractor created the work for the government and did not assign the copyright to the government, it can enforce its copyright in the usual manner.

2. If I give full attribution to the author, can I safely copy a large work for my students?

No. This would avoid any charges of plagiarism and would be the appropriate professional courtesy, but it would not make an infringing act non-infringing.

3. If the journal I intend to copy an article from has a generic permission in the front of the journal or at the beginning or ending of the article, am I safe to copy the entire article?

Generally, yes. You will have to read the permission carefully to see how, if at all, it is limited or qualified. Assuming your copying and use falls within the permission, you may safely proceed. Quite a few scholarly journals are adopting this practice (at least for college course readings) these days. But others, particularly those produced by for-profit publishers, do not grant blanket, a priori permission and require you – if your use will be beyond fair use – to go through the publisher or the Copyright Center for permission.

4. How about copying an article from a news magazine?

Material which is strictly descriptive of an event or development may not have sufficient creative content to be copyrighted. But if the story has an editorial or analytic component, it can be copyrighted as can any accompanying graphics or photos. Also, there may be very little market impact once the currency of "hot news" has passed and this may largely neutralize the "impact" fair use factor.

5. Since the Association of American Publishers (AAP) Guidelines for Course Packets contain a "spontaneity" requirement, how long a time can I have between the inspiration to use the material and the copying of it?

While fair use may well be broader than these "safe harbor" guidelines, the UO Copyright Clearance Office does adhere to many aspects of these Guidelines. The idea behind spontaneity is that it would be unreasonable to expect to obtain permission from the copyright holder given a short time before the material is needed, but, conversely, if time allows, the publishers feel it is reasonable to seek permission. This timing issue is compounded somewhat by the practice of printing all the material for the course early enough to be ready for the students to pick it up at the beginning of the term. If material sought to be copied is published just before the packet needs to be produced, or if the instructor is assigned the course or discovers the material just shortly before that time, the "spontaneity" element should be satisfied. Bear in mind, however, that "spontaneity" is but one of several Guideline requirements that must be met. Obviously, "spontaneity": would not apply were the material to be re-used the next time the instructor offered the course. While permissions can sometimes be obtained very quickly from some sources, others take two weeks and a few take even longer. Given the volume it handles, the U.O. Copyright Clearance Office asks for copying requests to be sent to it six weeks ahead of the press deadline. To see a further discussion of the Guidelines in main text, click on AAP Guidelines.

6. If I have designed a class assignment or project wherein the students write an essay or report on a specified topic or create software for a given purpose and I give them inspiration, constructive suggestions, and possibly do some editing or critique a draft, should not I be the author and entitled to the copyright?

No. The student(s) will be the author(s) under federal copyright law. However, if the students were to assign the copyright to the University, it is possible that you would be allowed a share of the net royalties (along with the student authors) under the O.S.B.H.E. Internal Management Directives. For a more detailed discussion of this point in the main text, click on software IP ownership.

7. I’ve heard the "fair use" statute lets academics copy without infringing because it’s for "teaching, scholarship, or research". Is that so?

Not quite. While those are some of the favored uses that underlie the concept of fair use, the statute requires an analysis of four specific factors. Your educational purpose will positively effect one of those factors, but it is not, by itself, a "get-home-free" card. Click on fair use for a more detailed discussion of fair use in the main text.

8. The book I want to copy from is out of print. Does that mean I can copy with impunity?

No. It may favorably effect the fourth fair use factor, market impact, but all four fair use factors must be considered. Also, the leading court decision on the subject of course packets has held that there is a market for permissions even for books no longer in print so even the fourth factor may turn out to be unfavorable to you. For a further discussion of this issue in the main text, click on out-of-print.

9. I’m doing a book review for a scholarly journal and want to quote at some length from the book. Will this be fair use?

This is a favored use (i.e. comment or criticism for the first factor) but all four fair-use factors must be considered. Chances are even your "lengthy" quotations will not be over 3% to 5% of the entire book so the third factor (amount copied) should be in your favor. And, your review (even if not thoroughly ecstatic) should help publicize the book and thus won’t hurt the publisher’s market (the fourth fair use factor). To see a more detailed discussion of the four fair-use factors in the main text, click on fair use.

10. I wrote a textbook over the summer when I was off salary. Does the University (State Board) own the copyright?

Possibly not. It will depend on whether the book is considered educational or professional material and on whether you used significant University resources in writing it. Thus, even though you weren’t on salary, did you use student research assistants? Or spend University money (or grant money received through the University) to travel to do necessary field research or to promote the finished book? Did you use University copying machines, long-distance telephones, or fax equipment more than a de minimus amount? If it was a science text or social science text, did you use University labs (in more than just an abstract, background sort of way) in developing the proofs or the exercises or the demonstrations detailed in the book? This is not an exhaustive list of questions, but it gives a suggestion of the analysis necessary to confidently answer the question. For a more detailed discussion of this and related issues in the main text, click on copyright ownership.

11. Can a student tape record my lecture without my permission and then make copies of the tape and give them away or sell them?

You have the right to prevent anyone, including students, from recording (fixing) your lecture without your prior approval. You can condition that approval by saying the recording can only be for the personal use of the student (or of all students presently enrolled in the class) and that no copies of the original recording may be made. If someone were to clandestinely record the lecture, you might be able to enjoin his use of the tape, particularly if you announced (preferably in the syllabus) that no taping was allowed without your prior, explicit permission. The theory supporting the injunction could be an unfair trade practice or an appropriational invasion of privacy but would probably not be copyright unless you read your lecture verbatim from a script (which probably no one does).

12. I want to incorporate an article I found on the World Wide Web into my class’s reading materials. That’s OK isn’t it?

Probably not. If the copyright holder posted the material without indication of copyright, she may have intended to place it in the public domain in which case you would be safe. However there is a great deal of unauthorized copied material ("bootleg" text or software and "pirated" music) available on the Web so you might be making a copy of an infringing copy and thus, would yourself be infringing. And passing it out to the class (distribution) would be a further infringement. For a discussion of illegal sites on the web, click on bootleg material.

13. I happen to know the author of this piece died two years ago. That means I’m safe in copying it doesn’t it?

No, if the piece was written in or after 1978 (and in many cases, even if It was written a little earlier) the copyright will still be in force for seventy years after the author’s death. So, if your use went beyond fair use, you would have to deal with the current copyright holder. If the author kept the copyright (which is somewhat unusual) you must deal with his heirs. If the author assigned it to a publisher (quite typical) that person holds the copyright. If the author wrote it as a work for hire, his then-employer probably still has the copyright. To see the main text on this question, click copyright term.

14. I simply want to scan-digitize-print a copy of a photograph of a work of art to provide it to the students in my "Intellectual Development of Europe" class. That’s OK isn’t it?

The photographer (or her publisher) putatively has the copyright. It can be argued that there is nothing all that creative about photographing an original work of art. The U. S. Supreme Court has long ago held that photographs are sufficiently creative to merit copyright protection. See Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884)(posed, studio photo); Cf. Alfred Bell & Co. v. Catalda Fine Arts, 191 F.2d 99 (2d Cir. 19651)(mezzotint reproductions of original works of art). But more recent cases are beginning to distinguish between the photographer’s creativity in posing a subject, selecting a view, and choosing lighting/film speed/exposure and the type of "slavish copying’ more typical of copystand photography of two-dimensional original works of art with the former being protected and the latter not protected. See e.g. The Bridgeman Art Library, Ltd. v. Corel Corp., 36 F.Supp.2d 191 (S.D.N.Y. 1999); L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486 (2d Cir. 1976)(en banc) cert. den. 429 U.S. 857; Hearn v. Meyer, 664 F.Supp. 832 (S.D.N.Y. 1987).

Assuming the photograph you want to copy does enjoy copyright protection, it seems somewhat problematic that your use will be a fair use. For a further discussion in the main text, click on digitized images.

15. I’ve heard that the faculty in the Michigan case was upheld on appeal as to their copying material for course packets. Is that true?

Well, you heard correctly in the first instance because a three-judge panel did hold the copying to be a fair use. However, the publishers petitioned for and got a rehearing. On the rehearing en banc the larger panel of judges reversed the three-judge panel and held the copying was not a fair use. The University of Michigan is in a different judicial circuit than we are (and thus that opinion is not binding upon us), but – considering it is the newest opinion and the only one from a Court of Appeals on the narrow issue of course packets – that decision will be very influential on other courts and the University considers it "the law" on this question. To see a more detailed discussion of this point in the main text, click on course packets.

16. I’ve heard the Supreme Court has ruled that using VCRs to tape television broadcasts does not constitute infringement. So can I tape network programs for my class to view?

Yes, if you stay within "fair use". But, copying the entire program (or the entire program less commercials) may well not be a fair use. The court decision you’re thinking of applies to time-shifting for the personal use and convenience of the VCR owner. It seems doubtful that precedent would be extended to exempt the situation you describe. For a more detailed discussion this point in the main text, click on "off-air" taping.

17. I used to ask the Library to place five copies of particular books on course reserve for students in my large classes. Now days, the Library seems to only have one copy of most books. Can I ask them to make digital copies so more students can access the books through an "electronic reserve"?

This could be risky. While there are some "guidelines" that many libraries support that would permit this to a degree (e.g. with limitations on access to students taking the course), these are not yet widely accepted and do not have the force of law. The publishers/copyright holders, of course, would like libraries to continue buying multiple copies. For a further discussion of this in the main text, click on library reserves.

18. How is it that a corporation can "display" a print of an Erskine Wood photograph or a professor can show a slide of a work of art in a class but I can’t use a digital camera to make a picture of an illustration in an art book to show to my class?

Assuming the corporation and the professor lawfully acquired (i.e. by gift or purchase) the print or the slide, they have an exemption under the Copyright Act to publicly display the lawfully acquired copy where it is located. Your proposed use of the digital camera would create a copy but it would not be a "lawfully acquired" so your later "displaying" (even to your class in face-to-face instruction) would be infringing unless you could qualify it as a fair use. Also, your use might flunk the "where it is located" requirement unless the image was only on your own laptop’s hard-drive and you used that same computer in a Power Point (or equivalent presentation software)-enhanced lecture to your class. To see a more detailed discussion of this point in the main text, click on digitized images.

19. I rented a video from a local video store. Can I show it to my class without violating copyright?

Probably you’re safe. Section 110(1) of the Copyright Act allows the display of an audio-visual or motion picture work to the class in the course of face-to-face instruction at a non-profit educational institution provided the copy was lawfully made. The rental agreement with almost all retail video stores limits the use to private use (i.e. being shown only to the renter or her immediate family or a few friends) and many studios (the copyright holders) insist that this excludes more public showings such as in residence halls or classrooms. There are almost always other distribution pathways by which "educational copies" can be licensed. On the other hand, the copy you want to show is not a "bootleg" copy and was "lawfully made" (by the studio!) so the statute would seem, literally, to confer an exemption for the classroom. The residence hall is another matter entirely.

20. I purchased a print of an artistic photograph. Now I’d like to crop it for incorporation into a poster or digitize it and manipulate it somewhat to insert it in my personal web page. Is this OK?

No. Incorporating it into a poster will be reproducing (and subsequently perhaps distributing it?) it without authorization. By cropping it, you might argue – for fair use purposes – that the quantity you used was less than 100%, but this seems like a weak argument. The good news is that there probably will be little market impact (unless you commercially market the posters). A further problem may arise under the Visual Artists’ Rights Act if the photographer thinks your cropping or manipulating distorted, mutilated, or prejudicially (to his honor and reputation) modified his photograph. You should either seek permission or choose some art that is in the public domain (or take your own photo).

21. Can I ask the Library to digitally copy a lengthy article in a journal it possesses to a computer diskette (so that I can load it onto my own computer) for my research purposes?

Yes. Technically, you will make a further copy when you add it to your hard-drive. To be safest, you could only access the article text from your "diskette drive" and never load it onto your hard drive. Another fairly safe alternative would be to load it, but then erase the diskette. In terms of fair use, you will not have any worse market impact on the journal publisher’s market than if you asked the Library for a hard copy. The Library will be acting within its Section 108 exemption so long as it doesn’t know you intend to make a further copy. To see a more detailed discussion of library copying in the main text, click on library exemption.

22. If my live interactive television course is videotaped, do I have the right not to allow its reuse? Can the University use the tape if and when I am no longer working at this University?

The Board is the "owner" of this material since the development of courses is part of a faculty member’s employment and University studios, technicians and equipment were used in the transmission/recording. Consequently, you will not be able to veto or refuse its reuse. Further, because the Board owns the copyright, the University may use it even if you no longer work here. However, the University is willing to develop understandings with you about future uses of such materials including updates and keeping the overall content current. These understandings could also include a process to consult and protect each party’s interests in the event you should leave while there is still an ongoing use for the materials. For a more detailed discussion on this subject, click on videotaped lectures and visit the main text.

23. Does copyright protect works I created and then "published’ or posted on the World Wide Web? Can such material be used for commercial purposes by a third party without my permission?

Yes, copyright law will cover such material (in fact they will almost certainly do so even before you install them on your web page. However, it is very difficult to enforce copyrights in works presented over this medium. Use of the material by a user other than copyright holder requires permission. The Board (OSBHE) will take actions to protect the Board’s intellectual property based on the circumstances of the infringement. The Board will not protect intellectual property in which it does not have an ownership interest. Many scholars place information (including coyrightable material) on the WWW expecting that it will be used and copied. From both an academic and economic perspective, given the University’s mission to disseminate knowledge, the expense of prohibiting infringement, and the small royalty potential, implied consent to wide-open use may, in many instances, be the best decision. Even then, however, there should be notice that permission is granted to use or copy without charge and an indication that the Board owns the copyright. And, faculty, students and staff should understand that although they (and the Board) may feel that way in certain instances, other copyright holders may not. Therefore one must make no assumptions (of free, unpermitted use) when downloading or otherwise copying creative works from the WWW. For a more detailed discussion of infringement and fair use of material used in such ways, click on the web site to visit that portion of the main text.

24. Can I contract directly with a publisher for the production of educational materials and not involve the University?

Generally, no. You are required to disclose both the development of any intellectual property and to receive approval for the receipt of any compensation from outside sources. There are University procedures to follow about both disclosure and outside income. The Board’s (OSBHE’s) Internal Management Directives establish whether an OUS institution has rights in educational materials that have been developed. For a detailed discussion of these IMDs in the main text, click on copyright ownership. If the Board does not claim rights or waive rights and the University approves the receipt of the outside compensation, the faculty member may negotiate directly with the publisher of the materials. University approval (specific or generic) of the receipt of compensation from outside sources protects you from having to be concerned with the regulations and restrictions of the Oregon Governmental Standards and Practices Commission which would otherwise apply.

25. Can I, by using "consulting days", provide a creative work to a company which – through its contract with me – would take an assignment to the copyright?

You would (unless this work fell within a generic approval category) have to disclose this outside employment arrangement to the University. This would be the time to discuss the possibility that the consulting work could lead to the creation of intellectual property. If there was truly no overlap of effort or uncompensated equipment usage into University-paid time or University-provided resources, you would probably own the IP rights and could assign them as you saw fit. However, the University should approve this outside work only after this potential is fully explored and after University officials are satisfied the activity will not create a real or a potential conflict of interest for you and that your proposed job is consistent with the University’s best interests.