The following guidelines and scenarios provide a starting point for anyone interested in Copyright information:
Copyright is a Framework, Not a Strict Set of Rules
The answer to every copyright question is: it depends! There is no cut-and-dry answer that we can apply to every scenario. Rather, it is decided according to a framework that is periodically tested in the courts. Copyright was designed to encourage and protect creative expression, and at the same time, to provide robust opportunities for thoughtful re-use by others.
Copyright in Higher Education
Here are some common scenarios involving copyright in higher education:
How do I know if using materials in the classroom is fair use?
Fair use is the right to re-use and contextualize copyrighted material, without paying a fee or requesting permission. Courts evaluate fair use according to four factors. There are robust protections for educational sharing, so if you want to share a copyrighted item in class, you are likely able to, according to U.S. Copyright law -- but you need a documented articulation of pedagogical need.
The four factors are:
- PURPOSE of Use (nonprofit, educational uses are generally favored over commercial uses)
- NATURE of the Copyrighted Work (creative works like movies or songs, and previously unpublished works, generally receive more protections and make for a weaker fair use case)
- AMOUNT of the Work used (a stronger fair use case occurs when you use as small an amount of the work as possible, for as short a time as possible)
- EFFECT on the Market for or value of the work (a stronger fair use case occurs when you use material that is not easily available for purchase elsewhere)
What do we mean by a well-documented articulation of pedagogical need? You might wish to document that you are:
- Sharing items only in a classroom, in person or online, only to people registered in that class
- Using items only for a specific and stated educational use
- Using items in a TRANSFORMATIONAL way. Annotation, comparison, and criticism are all considered forms of transformation, in that you are not using the work for its original purpose, but transforming it into part of a larger argument.
- Having no clear impact on the market. It is not a fair use to copy material for the sole reason of sparing students the expense of purchasing it through commercially available sources – but please contact the library so that we can explore low- or no-cost solutions together.
How can I use copyrighted material in course reserves, and support low- or no-cost course materials?
If you are linking to materials the library has already paid for, and already licensed, you have no problem. Links pointing to articles included in library-subscribed journals or ebooks can always be included in syllabi or BlackBoard sites, as just linking to items doesn’t create new copies, simply re-uses the already-posted material.
For other materials that we don’t already own or license, and that you wish to copy in their entirety for students and/or to post in the learning management system, you’ll need to focus on and document pedagogical use and the four factors. For a fair use case, you’d describe a one-time use with limited and secure access, and document that you are reproducing only as much as is necessary for the pedagogical need. It's harder to make a fair use case for unpublished material, like a poem or painting.
Please keep in mind that this is a process; finding and evaluating content for use in your class, even with library help, is time consuming. On the plus side, once you have gone through the process, your materials will be available for many semesters to come and can be revised at any time.
Library staff can search in open access repositories for related content and submit to you for your evaluation. These sites include all types of learning objects, not just texts. We can also find quizzes and tests, illustrations, video and audio.
You can also consider the use of multi-user ebooks that the library can purchase. Library staff can make suggestions, or you may have titles in mind. Staff can determine whether, for reasons of cost and availability, it will be possible to purchase these.
The library can also buy print books which can be placed on Course Reserves, so that students can access the book via short-term loans.
For more information, see the UMass Lowell University Library guide to copyright.
How does copyright and fair use affect my students’ own work?
Students, like all creators, own the copyright to their original work. They have exclusive rights pertaining to its re-use, except in the case of someone else using it via fair use or if the students have assigned their copyright to another party. Writing a paper in a class for an instructor does not transfer the student’s copyright to the instructor. As creators of original works, students are allowed to use copyrighted materials to a limited extent under the fair use provision in the law. Applying the four factors of fair use to any potential use of copyrighted material is the best way to determine if a use is fair or infringing.