What Is Copyright?

As defined by the United States Government, copyright is a form of protection provided by the laws of the United States (title 17, U. S. Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works. Section 106 of the 1976 Copyright Act generally gives the owner of a copyright the exclusive right to do and to authorize others to do the following:

Reproduce the work in copies or phonorecords (i.e. The media on which sound can be recorded, such as a compact disc) 

Prepare derivative works based upon the work

Distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending

Perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works

Display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work

Perform the work publicly (in the case of sound recordings*) by means of a digital audio transmission

What is protected by Copyright Law?

Copyright law requires that in order for a work to be protected, it must be "in a fixed medium of tangible expression." This means that the work must be written down or recorded in some way.

Examples of works protected by copyright are as follows:

books

journal articles

films/videos

poetry

art

music

musical performances

software

photographs

Exceptions and Limitations

As with many statutes, there are exceptions and limitations provided for those circumstances that do not fit the situation.  The following exceptions apply to the copyright act:

Fair use in section 107;

Performances and displays in face-to-face teaching in section 110(1);

Distance learning in sections 110(1) and 112(f);

First sale in section 109;

Reproduction by libraries and archives in section 108;

Limitations on liability for digital network service providers in section 512.

The two exceptions that are most important to Lindenwood are the fair use exception and the distance learning exception.  They will be detailed relative to their scope and use.

What is not protected by Copyright Law?

Copyright law does not protect works that are not “fixed in a medium of tangible expression.”   For example, ideas or concepts that are not “fixed in a medium of tangible expression” will not be protected.  Another instance where a work will not be protected is those works that are considered public domain. Examples of works in the public domain include:

Works no longer covered by copyright

Government documents

Copyright law does not protect works that are not “fixed in a medium of tangible expression.”   For example, ideas or concepts that are not “fixed in a medium of tangible expression” will not be protected.  Another instance where a work will not be protected is those works that are considered public domain. Examples of works in the public domain include:

Works no longer covered by copyright

Government documents

The Fair Use exception

Fair use is specified in section 107 of Title 17 of the U.S. Code. It states:

Notwithstanding the provisions of sections 106 and 106a, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. The effect of the use upon the potential market for or value of the copyrighted work

The 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.

Fair Use Determination

Fair use is an ambiguous concept and the law does not state exactly what uses of a copyrighted work will be considered fair uses under the law and may therefore be used without obtaining permission. As such, individuals who are not lawyers may often need to be interpreters of the law in everyday circumstances, and answers as to how much reproduction may be considered fair use often remain unclear. The bottom line is that fair use requires a very circumstance-specific analysis as to whether a particular use or reuse of a work may indeed be considered fair use.

To avoid confusion and minimize the risk of copyright infringement, Lindenwood University interprets the following situations as fair use:

• Quotation of short passages in a scholarly or technical work for illustration or clarification of the author's observations.
• Reproduction of material for classroom use where the reproduction is unexpected and spontaneous – for example, where an article in the morning's paper is directly relevant to that day's class topic. This would generally cover one time use in only one semester.
• Use in a parody of short portions of the work itself.
• A summary of an address or article, which may include quotations of short passages of the copyright-protected work.

If your use does not meet the above criteria and the work is protected by copyright, you probably need to obtain permission to use the work from the copyright holder or its agent.

The TEACH Act exception

The “Technology, Education, and Copyright Harmonization Act” (Teach Act) was enacted in 2002.  The law was passed as amendment to section 110 (2) of the Copyright Act in an effort to address copyright protections in a distance learning environment.  The revisions made by the TEACH Act allow for the digital transmission of materials for use in an online course provided they meet certain requirements.  While certain institutional requirements need to be met to fall under the TEACH Act requirements, it is the responsibility of the instructor to ensure criteria are met.

The Lindenwood University policy relative to the TEACH ACT requires all materials used in online courses be embedded in a course shell, thus limiting access to the materials to just those students enrolled in the class.  The limited access is controlled via passwords.  Course work cannot be placed on McGraw Hill’s Connect function, on any other publisher’s platform, or on an individual web page.

If an instructor wishes to present works through digital transmission for instructional purposes, he or she must adhere to the following requirements pursuant to the TEACH Act:

1. Avoid use of commercial works that are sold or licensed for purposes of digital distance education.
2. Avoid use of pirated works, or works where you otherwise have reason to know the copy was not lawfully made.
3. Generally limit use of works to an amount and duration comparable to what would be displayed or performed in a live physical classroom setting. The TEACH Act does not authorize the digital transmission of textbooks or course packs to students.
4. Supervise the digital performance or display, make it an integral part of a class session, and make it part of a systematic mediated instructional activity. In other words, the faculty should interactively use the copyrighted work as part of a class assignment in the distance education course. It should not be an entertainment add-on or passive background or optional reading.
5. Use software tools and ensure password protection to limit access to the works to students enrolled in the course, to prevent downstream copying by those students, and to prevent the students from retaining the works for longer than a "class session."
6. Notify the students that the works may be subject to copyright protection and that they may not violate the legal rights of the copyright holder.

Any time limitations imposed by the TEACH Act are imposed upon student retention.  Lindenwood University is allowed to make archive copies to be stored on its own servers.

TEACH Act Determination

Since the TEACH Act has its basis in distance education programs, e.g. online learning, the instructor preparing the material for use in the course must adhere to the following guidelines:

1. The performance or display must be under the supervision of the instructor
2. The materials in the course are transmitted as part of a mediated instructional activity
3. The copyrighted materials are directly related to the content of the course being taught.

Copyright Permission:

• Is not necessary if the material being used is in the public domain (see Appendix 1),
• May be available through a licensing agency,
• May be available by contacting the owner of the materials.

Permission to use copyright-protected materials, when required, should be obtained prior to using those materials. It is best to obtain permission in writing (including e-mail) and to ensure that the Dean of University Library Services has a copy of each permission form or letter.

Permission is required to use copyrighted materials contained in a textbook when used in a Power Point presentation, in any online usage or other manner.  Start with the sales representative for the publishing company to get that permission.  That person has access to the Rights and Permissions Departments within the publishing company.  A determination can be made if copyright permission is necessary.  Typically if the publisher obtained graphics through a subscription, no permission is required.  If the publisher obtained graphics through a license, then permissions are required specific to that textbook.

All costs associated with obtaining copyright permissions will be borne by the person requesting the permissions.  The University bears no responsibility in this matter and is not liable for any infringements.

The time to obtain permission may vary. It is recommended to start the process at least six months prior to the time the materials are needed. If permission needs to be expedited, contact the Copyright Clearance Center. It is a direct, one-stop resource for obtaining copyright permission.

Fact Finding Questions

Once you have identified the materials you want to use and determined that copyright permission is required, you must locate the copyright holder. If the copyright holder is not listed on the work, locating the appropriate person or entity to grant permission may take some investigative and creative work.

The Copyright Office of the Library of Congress (www.loc.gov) may be of assistance in locating a copyright owner if the work is registered. Note, however, that copyright is automatically granted to all works upon their being written down and that registration with the Copyright Office is not required.

There are two primary options for obtaining permission to use the work:

The copyright holder directly

Contact the Copyright Clearance Center and create an account.

Information in your Permission Request

The copyright holder or its agent will require the following information in order to provide you with permission:

• Title of the material
• Creator/author of the material
• Publisher of the material
• Description of material
• ISBN or ISSN, if applicable
• Date of publication, if applicable
• Purpose for which you wish to reproduce the item (research, commercial, educational, etc.)    
• How the material is to be reproduced (e.g., photocopied, digitized)
• Where the reproduced material will be used or will appear and for how long

Permission dead-end

There may be cases where faculty members are unable to obtain permission to use copyrighted materials for a variety of reasons.  Options to deal with this situation include the following:

• Reconsider the fair use,
• Use alternative materials,
• Alter planned use

Infringement of copyright law is a federal offense. Violation of copyright law can result in fines that range from $200 to $150,000 per infringement and/or prison.

Lindenwood University faculty are responsible for complying with copyright law, and for making a good faith determination of whether an intended use falls within the fair use exemption.  Lindenwood University will not assume legal responsibility for faculty members who fail to make a good faith determination or otherwise do not comply with Lindenwood University copyright policy or copyright law.

Faculty are responsible for reviewing and vetting their course content for copyright compliance; if asking other staff to process the content, faculty should be able to provide evidence of either copyright compliance or a good faith determination.

Single Copying for Teachers

A single copy may be made of any of the following by or for a teacher at his or her individual request for his or her scholarly research or use in teaching or preparation to teach a class:

• A chapter from a book
• An article from a periodical or newspaper
• A short story, short essay or short poem, whether or not from a collective work
• A chart, graph, diagram, drawing, cartoon or picture from a book, periodical, or newspaper

Multiple Copies for Classroom Use

Multiple copies (not to exceed in any event more than one copy per student in a course) may be made by or for the teacher giving the course for classroom use or discussion; provided that:

• The copying meets the tests of brevity and spontaneity as defined below;
• meets the cumulative effect test as defined below; and
• each copy includes a notice of copyright

Course Reserves

The Library supports a course reserves collection made up of materials chosen by faculty to support the instructional requirements of specific courses.

The Library’s policy for providing access to copyright-protected materials through course reserves is based on the fair use provisions of United States Copyright Act of 1976 (Title 17 of the United States Code). Section 107 of the Copyright Act allows the fair use of copyrighted materials for teaching, scholarship, and research. Reproduction of these materials does not require the payment of a royalty or the permission of the copyright owners, provided that the circumstances of the use are fair use as determined by a consideration the four factors specified in section 107, which include:

1. The purpose and character of the use, whether such use is of a commercial nature or is for nonprofit educational purposes
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. The effect and use upon the potential market for, or value of, the copyrighted work

The library expects that faculty be diligent in their assessment of whether or not use of a reproduction is considered fair use. If the materials are not determined to be fair use, faculty must get permission of the copyright holder before asking the library to place it on reserve.

Coursepacks

All articles, chapters and other individual works in any print or electronic coursepack require copyright permission. Copyright permission for coursepacks is usually granted for the academic period. To reuse a coursepack in subsequent academic periods, permission must be granted for each use.  Many copyright holders provide time-sensitive permission because their own rights may be time-sensitive and could be transferred to different copyright holders at any time.

1. Copyright Law

   As defined by the United States Government, copyright is a form of protection provided by the laws of the United States (title 17, U. S. Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works. Section 106 of the 1976 Copyright Act generally gives the owner of a copyright the exclusive right to do and to authorize others to do the following:

   • Reproduce the work in copies or phono records (i.e. the media on which sound can be recorded, such as a compact disc, mp3 file) 
   • Prepare derivative works based upon the work
   • Distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending
   • Perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works
   • Display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work
   • Perform the work publicly (in the case of sound recordings*) by means of a digital audio transmission

2. What is protected by Copyright Law?

   Copyright law requires that in order for a work to be protected, it must be "in a fixed medium of tangible expression." This means that the work must be written down or recorded in some way.

   Examples of works protected by copyright are as follows:

   1. books
   2. journal articles
   3. films/videos
   4. poetry
   5. art
   6. music
   7. musical performances
   8. software
   9. photographs

3. Fair Use

   Fair use is specified in section 107 of Title 17 of the U.S. Code. It states the following:

   Notwithstanding the provisions of sections 106 and 106a, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors
   to be considered shall include:

   1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
   2. The nature of the copyrighted work
   3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
   4. The effect of the use upon the potential market for or value of the copyrighted work

   The 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.

4. Posting Material on the Open Web

   In order to protect the University from the risk of lawsuits due to copyright infringement, material posted on the University or University-affiliated websites must either be granted copyright permission, be in the public domain, or be a good case for fair use. 

5. Posting Material on Class Websites

   Please see the Lindenwood Electronic Reserve Policy for information.

6. Who holds the copyright?

   • Student work: Students hold the copyright for all original academic work, in whatever medium.
   • Faculty work: Faculty members hold the copyright for all original academic work, unless they have assigned it to publishers in the course of publication. Work written for governance committees and other institutional service is usually considered to be under the copyright of the Lindenwood University. Work on student evaluations falls under FERPA, the Federal Educational Records Privacy Act.
   • Staff work: Work by staff and administrators written in the performance of their duties falls under the copyright of Lindenwood University. Work for hire done by consultants and photographers usually falls under the copyright of Lindenwood University, but is specified in their individual contracts.
   • Published work: Historically, published work is copyrighted by the publisher, although more recently negotiated licenses may reserve more rights to the author. Creative Commons licenses grant copyright permission in certain circumstances, typically for scholarly but not commercial use. 

7. Sources for Non-Copyrighted Material

   One strategy for putting material on the open web would be to use non-copyrighted material. Here are some ideas for these:

   • Works published in the U.S. before 1923 are no longer protected by copyright.
   • U.S. Government publications are not copyrighted.
   • Source for Music with Creative Commons licenses specifically for use when creating videos.
   • Sources for Images without copyright.

8. More information about Copyright

   • Library of Congress Copyright Office Guide and FAQs. A great site; provides all you ever wanted to know about copyright.

Brevity

• Poetry: (a) A complete poem if less than 250 words and if printed on not more than two pages or, (b) from a longer poem, an excerpt of not more than 250 words.
• Prose: (a) Either a complete article, story or essay of less than 2,500 words, or (b) an excerpt from any prose work if not more than 1,000 words or 10% of the work, whichever is less, but in any event a minimum of 500 words.
• [Each of the numerical limits stated above may be expanded to permit the completion of an unfinished line of a poem or of an unfinished prose paragraph.]
• Illustration: One chart, graph, diagram, drawing, cartoon or picture per book or per periodical issue.
• “Special” works: Certain works in poetry, prose or in “poetic prose” which often combine language with illustrations and which are intended sometimes for children and at other times for a more general audience fall short of 2,500 words in their entirety. Except as set forth above, such “special works” may not be reproduced in their entirety; however, an excerpt comprising not more than two of the published pages of such special work and containing not more than ten percent of the words found in the text thereof, may be reproduced.

Spontaneity

• The copying is at the instance and inspiration of the individual instructor
• The inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission.

Cumulative Effect

• The copying of the material is for only one course in the school in which the copies are made.
• Not more than one short poem, article, story, essay or two excerpts may be copied from the same author, nor more than three from the same collective work or periodical volume during one class term.
• There shall not be more than nine instances of such multiple copying for one course during one class term.
• [The limitations stated in above shall not apply to current news periodicals and newspapers and current news sections of other periodicals.]

Public Domain

As defined by the Merriam-Webster Dictionary, Public Domain is “the realm embracing property rights that belong to the community at large, are unprotected by copyright or patent, and are subject to appropriation by anyone.”

Prohibitions to above

Notwithstanding any of the above, the following shall be prohibited:

• Copying shall not be used to create or to replace or substitute for anthologies, compilations or collective works. Such replacement or substitution may occur when copies of various works or excerpts therefrom are accumulated or reproduced and used separately.
• There shall be no copying of, or from, works intended to be “consumable” in the course of study or of teaching. These include workbooks, exercises, standardized tests and test booklets and answer sheets and like consumable material.

Copying shall not:

• substitute for the purchase of books, publishers’ reprints or periodicals
• be directed by higher authority
• be repeated with respect to the same item by the same teacher from term to term
• be charged to the student beyond the actual cost of the photocopying

PowerPoints:  Many Lindenwood University faculty members have been provided with a DVD from the publisher of their textbook that contains PowerPoint lectures and graphics. Some of those DVDs contain copyright information, others do not.  As long as the faculty member is using the textbook from that publisher, the use of the copyrighted materials on those DVDs is acceptable within the fair use guidelines for nonprofit educational purposes.  If the faculty member changes textbooks, then permission must be obtained from the publisher for previous versions.

The PowerPoints must be available to only the students of the applicable course.  This mandates that they either be handed out to the students by the faculty member, or are posted in digital format in a location that is password protected.  Students may download PowerPoint lectures that have been posted and use them for note taking, etc.  Students may not distribute copies of the PowerPoints.

Captured Lectures:   Faculty members may make videos of their lectures that contain copyrighted materials.  Those videos must be available to only the students of the applicable course and for a time period not to exceed the semester or term.  Students may download podcasts of the lectures and use them as a study guide.  However, they may not distribute copies of the video.

1. Classroom Use:
   Streaming a video for educational purposes in a physical classroom setting, with students and faculty present, falls under fair use.
2. Limited Online Access:
   Streaming a video on a password-protected learning management system (e.g., Canvas) for enrolled students only is considered fair use. This is comparable to checking out a video from course reserves.
3. Public Streaming:
   Making a video available for unrestricted public viewing is not covered by fair use. This requires explicit permission from the copyright holder, typically in the form of a public performance license.
4. Original Content:
   Faculty members or students may freely stream their own original video content, as they hold the copyright.
5. Copyright Compliance:
   For more comprehensive information on copyright law and its application to web content, please refer to our Web Copyright Policy.