Fair Use

Informational Sections

Why Should You Care About Copyright? (back to top)

As a new college student, you will soon realize that you are entering a phase of your educational life that will be vastly different from high school. Some of the major distinctions are that college professors will be different from high school teachers, students are provided with a less-structured atmosphere, and the work assigned will be harder, there will be more of it, it will have to be completed in a shorter period of time, and most of it will have to be done outside of the classroom. Because of these differences, students must prepare themselves to be challenged and to become capable of mastering large amounts of difficult material in a short period of time. Since the assigned work will have to be completed in a responsible and independent manner, many students may have to change their educational work ethic in order to take responsibility for their own learning and be academically successful.

Due to these added responsibilities, many students may feel pressure in completing their work well and quickly. With the Internet providing an expansive source of information and the accessibility of a wide range of other sources for materials, it would be quite easy to just copy from these various sources and use them in an assignment. However, copying from these sources, seemingly convenient and unnoticeable, is very likely to be considered stealing, since you are taking someone else’s property without permission and could be depriving the creators of income or control to which they are entitled through copyright protection. Without regard to or knowledge of copyright restrictions, you may copy materials illegally or load software without licenses. Students need to abide by United States copyright laws, so it is important to understand the basic guidelines about copyright so that you can be informed about how to choose and use materials. It is very possible to commit a copyright infringement and not even realize you have done so. By understanding the basics, you will be able to ask the right questions and benefit from your right to fair use of copyrighted materials and protect yourself and the university from legal actions.

What Is Copyright Protection? (back to top)

The United States Constitution establishes the basis for current copyright laws, saying that its purpose is to promote science and the useful arts. The government believes that those who create an original expression in any medium need protection for their work so they can receive appropriate compensation for their intellectual effort. Copyright laws are based on the belief that anyone who creates an original, tangible work deserves to be compensated for that work, that compensation encourages more creative works, and that society as a whole benefits from the creative efforts of its members. Simply stated, it is believed that if people can make money from their copyrighted work, it is likely that more work will be created.

What exactly is a copyright? It is a form of protection provided by the laws of the United States to any creator, such as an author, a composer, a playwright, a publisher, or a distributor, of original, published or unpublished, works to protect their right to be compensated and granting them certain exclusive rights to control how the work is used. This protection grants creators a fairly substantial amount of control over their work. The owner of the copyright has the exclusive rights to reproduce, publish, sell, distribute, produce, alter, or adapt his or her work, perform or display his or her work publicly or prepare derivative works. Copyright owners also have the ability to grant these rights to others if they so choose. In order for a work to qualify for copyright protection, it must (a) be an original idea that is put to use, (b) show minimal creativity, and (c) be in a fixed or tangible form, which can be just about anything. A work will be considered in a fixed form if it is set on paper, recorded on audio or video tape, saved to a computer disk, saved to a hard drive, in a database, posted to a bulletin board, or even on the Internet. Yes, the majority of works found on the Internet are also protected by copyright. Basically, if you can see it, hear it, and/or touch it, it is most likely protected. Works that qualify for copyright assume protection from the moment the works take tangible form, whether or not a copyright notice is attached or has been registered with the United States Copyright Office.

What Is Protected By Copyright? (back to top)

Copyright protection covers several broad categories: Literary works, such as books, novels, stories, and manuscripts (both fiction and nonfiction), periodicals, magazines, and newspapers, press writings, articles, sermons, pleas, speeches, manuals, postcards, computer programs, HTML code, JavaScripts, cascading style sheets and other printed material; Musical works, such as songs, operas, and musical plays (along with the accompanying words); Dramatic works, such as plays and dramatic readings (along with the accompanying music); Scientific works, such as notes from conferences, studies, university courses, school manuals, scientific documentation, and projects (both oral and written); Pantomimed and Choreographed works; Pictorial, Graphic, and Sculptural works, such as paintings, sculptures, graphics, web graphics, stock photos, logos, digital art, engraving, lithography, monumental art, stagecraft, tapestry, ceramics, metal, glass, and plastic art, fine and applied arts, photographs, prints and art reproductions, maps, globes, charts, technical drawings, diagrams, models, illustrations, cartoons, and games; Motion Pictures and Audiovisual works, such as movies, multimedia presentations, cinematography, slides, filmstrips, films, videos, and television shows; Sound Recordings, such as music, lyrics, sound files, records, audiotapes, cassettes, compact disks, and computer disks; and, Architectural works, such as sketches, lay models, and graphics that are part of architecture projects.

All computer software, like all other tangible, original work, is covered by copyright protection immediately upon creation. The three types of software covered by copyright are commercial software, which represents the majority of software purchased, shareware, and freeware. Commercial software and shareware licenses state that any modification of the software is not allowed, decompiling of the program code or developing a derivative work based on the software is not allowed without the permission of the copyright holder, and only one backup copy can be made, but cannot be used unless the original software fails or is destroyed. Freeware licenses state that any modification of the software is allowed and encouraged so long as credit is given to the original creator, decompiling of the program code is allowed without the explicit permission of the copyright holder, developing derivative works based on the software is allowed and encouraged with the condition that any derivative works must also be designated as freeware, meaning that you cannot modify or extend freeware and then sell it as commercial software or shareware, and copies can be made for both backup and distribution purposes but that distribution cannot be for profit. The only software currently available that is not protected by copyright is software that the owner has given to the public domain, which is clearly labeled.

What Is Not Protected By Copyright? (back to top)

Material not protected by copyright (or otherwise protected by trademark or patent) is available for use by anyone without consent through what is known as public domain. Works in the public domain belong to the public as a whole and do not require permission. Most of the works in the public domain are works that are not fixed in a tangible form of expression and works that the creator has freely granted to the public domain. Although the Internet encourages a sense of shared information, it is not public domain. The Internet contains both copyrighted and public domain materials. You should always assume a work is copyrighted. Many public domain items announce on their front page that they are in the public domain. However, graphic images provided by “free” and “linkware” sites and stock photography are not public domain. You should always ask someone affiliated with these sites if the items they offer are public domain. If you are not absolutely sure that the material is in the public domain, the safest course is to assume the material is copyrighted and ask permission to use it.

Materials available in the public domain and not protected by copyright include: Ideas, procedures, and methods (although these three can be protected by a patent), facts, systems, underlying concepts or truths, processes, concepts, principles, discoveries, and devices; Titles, names, short phrases (these can be protected by a trademark if it is associated with a business), slogans (can be protected by a trademark), familiar symbols or designs, variations of typographic ornamentation, lettering, or coloring, listings of ingredients or contents, words, blank forms, shapes both ordinary and unusual, useful designs (can be protected by a design patent), names of products or services, names of pseudonyms of individuals (including a pen name or stage name), names of businesses, organizations, or groups (including groups of performers), recipes, labels, or formulas (although text descriptions may be protected); Government works, such as judicial opinions, public ordinances, administrative rulings, and works created by government employees as part of their official responsibility; Works consisting entirely of information that is common property and contains no original authorship such as standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources; and, Works for which copyright has expired (although this is extremely rare).

What Is Fair Use? (back to top)

Copyright protection is subject to certain limitations found in Sections 107 through 118 of the copyright law. The most significant limitation on the copyright owner’s exclusive rights is the doctrine of fair use. The fair use exemption was created to allow use of material, with certain restrictions, for educational purposes such as criticism, commentary, news reporting, parody, teaching, scholarship, research, and education about copyrighted works without permission of the author. This exemption is vital so that copyright law does not inhibit your freedom to express your own works – only the ability to pilfer someone else’s. Since fair use is not an exact doctrine, the distinction between fair use and copyright infringement may be unclear and not easily defined. There are no specific, predefined, legal restrictions of how much and when one can copy without permission, but there are four factors of fair use that must be evaluated.

Rather than listing exact limits of fair use, copyright law provides four standards for determination of the fair use exemption. Any individual who wants to use a copyrighted work must consider these four factors in determining whether or not a particular use is fair: (1) The purpose and nature of the use, (2) The nature of the copyrighted work, (3) The amount and substantiality of the portion used, and (4) The effect of use on the potential market for or value of the work (this is the most important of the four factors). Purpose: Your use will likely be considered fair if it is for educational or nonprofit purposes by a student acting individually, it was made spontaneously, for temporary use, not as part of an anthology, not as an institutional requirement or suggestion, and is distributed without charge. Your use will likely not be considered fair if it is for commercial purpose, you are profiting from the use, you use it for entertainment, you simply made a copy of the original, or you deny credit to the original author. Nature: Your use will likely be considered fair if you use a published work that is factual or nonfictional or out of print, and your use is important to favored educational objectives. Your use will likely not be considered fair if it is an unpublished work or a work that is highly artistic, creative or fictional. Amount: Your use will likely be considered fair if you copy excerpts that are short in relation to the entire work, use segments that do not reflect the essence of the work, and use a small quantity that is appropriate for favored educational purposes. Your use will likely not be considered fair if you use a large portion or the entire work, use a portion that is central to the work, and your use exceeds a reasonable amount. Effect: Your use will likely be considered fair if your use causes no damage to the commercial value or if you made only one or a small number of copies. Your use will likely not be considered fair if your use adversely affects the author’s economic gain, you make numerous copies, it significantly impairs the market or potential market of the work, you make it accessible on the Internet in another public forum, or your use is repeated or long-term.

As a student, you have certain legal rights to use copyrighted works for educational purposes, such as classroom assignments, without obtaining permission as long as fair use guidelines are followed. Students may incorporate portions of copyrighted materials when producing a project for a specific course and may perform and display their own projects and use them in their portfolio or use the project for job interviews or as supporting materials for application to graduate schools. When creating an educational project using copyrighted materials, be conservative. Use only small amounts of others’ works. Do not make any unnecessary copies of the project and limit your research copies to single chapters, single articles from a journal issue, several charts, graphs, or illustrations, and other similarly small parts of a work. Students creating educational materials must follow the fair use guidelines and remember to cite the authors of any materials they use. Whenever you quote, paraphrase, summarize, or otherwise refer to the work of another, you are required to cite its source, either by way of parenthetical citation or by means of a footnote. Another way of crediting the source is displaying the copyright notice and providing copyright ownership information. State on the opening screen of a multimedia project and on any accompanying print material a notice that certain materials are included under the fair use exemption of the United States copyright law and have been prepared according to the educational guidelines and are restricted from further use. All images, graphics, and video should be credited to the owners just the same as written material. Even if you believe that you do not need permission because it falls under the definition of fair use, you still must credit the author’s hard work by naming your source as a reference. This is a requirement under copyright legislation. If you failed to do so, you would be committing plagiarism. Even if your particular use is legal, because you have obtained permission or you are using material from the public domain, it is always appropriate and ethical to give the original creator credit for their work. Most style manuals require you to assemble a list of the works that you have cited in your project. This list, typically included at the end of the project, may be termed “Works Cited,” a “Reference List,” or a “Bibliography.” If your intention is to use a work for something other than a specific course-related assignment or activity, then such use will most likely not be protected by fair use. You will be required to get permission if you intend to use your project for commercial purposes, want to use a work in its entirety, or intend to duplicate or distribute the project repeatedly.

Fair use of computer software is another issue. At the present time, fair use applies only to software that has been purchased. Most software is licensed to users, rather than owned by them, and its use is governed by the licensing agreement rather than by the fair use exemption. Most licensing agreements do not allow users to copy and distribute commercial or shareware software, although some may permit copying a small section of code to illustrate a programming technique.

What About Materials On The Internet? (back to top)

The best way to determine the applicability of fair use exemptions to Web-based technology is to relate the Internet resource as closely as possible to a print resource. If you determine that you could use the works if you had found them in a comparable print publication, your use will likely be considered fair. Regardless of whether or not your use of the material is considered fair, always credit the source of your information. When visiting a web site, it is so easy to click and save when you see a graphic image or photo that you like, or to view the source code and copy part or all of the HTML coding. The general (and incorrect) notion is that anything that is on the Internet is public domain and may be taken without permission. Material found on the Web may be copied freely only if the information is created by the federal government, the copyright has been abandoned by the owner, or the copyright has expired. Since the Internet is not in the public domain, any work published on the Internet is not automatically placed in the public domain, unless the material in question complies with one or more of the characteristics of material not protected by copyright. You should also keep in mind that works posted on some web sites might not have been posted by the copyright owner or with the copyright owner’s permission. Just because a copyrighted work is already posted on the Web does not mean it is there legally. Even sites that have obtained the required permission may not have the right to transfer that permission to you. If necessary, always get permission to use a copyrighted online work from the owner of that work, not from a secondary source. If you plan to use the work online, be sure to get permission to use the work electronically. Print rights and electronic rights are not the same thing.

Contrary to what many students believe, federal law treats the unauthorized uploading, downloading, or sharing of copyrighted material as a serious offense that carries serious consequences. You are responsible for all activity that occurs through your computing account and the devices that are registered to you. If you use the university’s network to access, download, upload, share, or retain substantial portions of copyrighted materials, especially with regard to peer-to-peer (P2P) networks, without permission, without making a fair use, or without falling under another exception under copyright law, you are very likely infringing copyright laws. Any university computer account holder who violates copyright laws risks a lawsuit by the copyright holder, loss of access to the university computer system, and disciplinary action by the university, which shall be governed by the applicable provisions of the student handbook and other policies and procedures of the university. Since users are responsible for the use of their computer resources, you should take precaution against others obtaining access, including managing and controlling the use of individual passwords and always logging out of the system when you are finished using it. This will prevent someone else from using your account to do something illegal and having it traced back to you.

What Are The Penalties For Copyright Infringement? (back to top)

Copyright owners take infringement very seriously and may pursue infringement actions against not only the individual, but the university as well. Not only does wrongful use of copyrighted material give the copyright owner the right to seek and recover compensation in a court of law, but these actions could also expose you to the risk of serious criminal penalties. The penalties for infringement, both civil and criminal, are severe, and ignorance of the law is no excuse. Civil penalties may include the copyright owner’s actual damages and any profits you may have made from the infringement, or statutory damages, as well as reasonable attorney’s fees and costs. In the case of willful or deliberate infringement, any damages can be increased by the court. Actual damages must be proven with evidence, so statutory damages may be elected by the copyright holder. Statutory damages can be as much as $30,000 per infringement. Judgments can be increased up to $150,000 for each act of deliberate or willful infringement. Criminal penalties can include fines up to $250,000 and imprisonment of up to five years. You may also be subject to disciplinary action by the university. If the university is notified by a copyright owner, publisher, distributor, or law enforcement agency of possible infringement, they will conduct an investigation, and, if a violation is found, the violator will be required to correct any infringement and may face disciplinary action. Regardless of whether a copyright holder pursues legal action, the university reserves the right to block access to the university computing system and network for any member of the university community who repeatedly participates in behavior that is prohibited by the university’s policies.

Students are expected to be mindful of the restrictions imposed on them by copyright law as well as the rights conferred on them by the fair use exemption to the copyright laws. Students have a moral obligation to practice integrity and trustworthiness, so you should honor the law when it comes to fair use and copyright and model honesty and truthfulness by knowing when and what may be copied for educational use. Ultimately, it is your responsibility to abide by current copyright law and to refrain from using works and materials in ways that are not legally permissible. If you are unsure about whether or not something is legal, ask.

This information is, to the best of our knowledge, correct and up-to-date. Copyright laws and the circumstances surrounding the use of copyrighted materials can be difficult to understand. This information should not be construed as legal advice. The information in this document was compiled by Timothy Richardson.

Apply Now