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Copyright at Kirkwood

Kirkwood Community College respects the legal right of ownership of intellectual property in all media. It is the policy of Kirkwood Community College that all members of the college community adhere to the provisions of the United States Copyright Law (Title 17, United States Code, Sect. 101, et seq.).

Faculty and staff are reminded that it is unlawful to copy, distribute or display copyrighted material without written permission from the copyright holder, unless fair use or educational exceptions apply.  Both the individual requesting such services and the individual performing the services may be liable for copyright infringement.  Please consult the Kirkwood Libraries with questions concerning copyright exceptions.

Please note: License agreements for products, software or websites may impose further legal restrictions beyond standard copyright obligations.

Copyright for educators: Can I Use This?

Legal use of copyrighted materials is common daily consideration for educators. Whether you want to share an article with your students, provide a "course pack" of assorted materials as a textbook replacement, or need quality images for a PowerPoint presentation, the question of what's acceptable use can be confusing. We hope this guide will help you make these determinations, or provide alternatives when copying isn't the best answer. 

Start by reviewing this table of options, then click on contents to the left to find out more information about each:

Fair use and other copying options

Is the work in the Public Domain?

Works in the public domain may be copied and distributed without permission of the creator/owner.

Most works older than 1923 are in the public domain, and some later works as well. See Public Domain Sherpa for help determining if a work is in the public domain.

Most works produced by the U.S. government are in the public domain. Assume a government document to be in the public domain unless it contains a copyright notice.

To search:

Public Domain Review

Is the work open licensed?

Works with a Creative Commons or other open license will be labeled with the specifics of what type of use is allowed. The most commons, "CC-BY", means that the work can be copied, edited, and distributed without permission of the creator/owner, requiring only that you attribute the original author. Guide to Creative Commons licensing.

To search: 

Creative Commons search, or

Kirkwood's Guide to Open Educational Resources

Is the work online?

If a work is online, you may link to it instead of copying it without permission of the copyright holder (unless it is a rare case where the work specifically states this isn't allowed). This applies to works on free websites (for example, a YouTube video or a blog post), as well as works already licensed to the college through Library subscription databases, such as journal articles or ebooks. For more information on creating links to Library subscription content, please see our Talon help guide

To search:

Library Services Home

Does your intended use of the work fall under "fair use"?

Fair use is a doctrine of U.S. copyright law which gives exceptions to certain uses of copyrighted materials, which would otherwise by copyright infringement. To determine if fair use applies to your use, the four fair use factors must be applied. See Kirkwood Library's guide to fair use for more information on how to apply fair use to your situation. Kirkwood's Fair Use Guide

Asking for permission

If it's not possible to link to a licensed or free copy of the work, and if fair use doesn't apply, you can contact the copyright holder for permission. The University System of Georgia has an excellent guide on requesting permissions and identifying the copyright owner of a work, with sample permission letters. Georgia's Permissions Guide

Paying copyright holder for use

If it's not possible to link to a license or free copy of the work, and if fair use doesn't apply, you can also purchase the right to copy, distribute, display, or perform a work. This is usually done through a licensing agent. The University System of Georgia has an excellent guide to identifying a licensing agent according to the format of the work you want to use (print, music, video, etc.).  Georgia's Collective Licensing Agencies guide

 

Determining Fair Use

Fair use is a doctrine of U.S. copyright law which gives exceptions to certain uses of copyrighted materials, which would otherwise be copyright infringement. To determine if fair use applies to your use, the four fair use factors must be applied. 

This checklist also available as a Word document you can download and type into.

Instructions:

  • The checklist is a tool that allows you to perform a rigorous fair use analysis, by completing each portion of the checklist below.
  • Not all of the statements under each factor will be present in any given situation. Check only those that apply to your use.
  • Where there are counter (opposing) statements, usually only one or the other applies.
  • No single item or factor is determinative of fair use, but some factors carry more weight than others, as indicated below.
  • The final determination is based on a weighing or balancing of the four factors. You do not need to have all factors or all details pointing in favor of or against fair use. (It’s not “all or nothing”.)
  • The use of this checklist is a good way to demonstrate your good faith attempt to follow the doctrine of fair use. Complete and retain a copy of this checklist for each fair use of a copyrighted work, should any dispute arise.
  • All shared materials should include a notice attributing the original source of the work.
  • Copies must be made from legally owned copies (personal or Kirkwood-owned).
  • Contact Kirkwood Library Services for help in making a fair use determination.

Factor 1: Purpose and Character of the Use

Weighs in Favor of Fair Use

Weighs Against Fair Use

☐ The use is for the purpose of teaching in a non-profit educational institution (including multiple copies for classroom use).

☐ The use is for a commercial purpose

☐ The use is for criticism, comment, news reporting, or parody; or the use is transformative.

☐ Mirror image copying without the addition of criticism, comment, parody, or transformation of presentation or use.

☐ The use is necessary to achieve an intended educational purpose.

☐ The use is not necessary to achieve an intended educational purpose.

☐ Distribution is limited by password to students within a class for the term of the course; students acknowledge copyrighted nature of the materials.

☐ Unlimited or uncontrolled distribution

 

Factor 2: Nature of the Work

Give this factor less weight when the work is published, non-consumable, and non-fictional

Weighs in Favor of Fair Use

Weighs Against Fair Use

☐ The work is non-fictional (factual) in nature.

☐ The work is fictional or highly creative

☐ The work is non-fictional in nature, and author opinion, subjective description and evaluative expression do not dominate the work.

☐ The work is non-fictional in nature and author opinion, subjective description and evaluative expression dominate the work.

☐ The work is “non-consumable”

☐ The work is “consumable”, e.g. a workbook or test

☐ The original work has been published

☐ The work has never been published.

 

Factor 3: Amount and Substantiality of Portion Used

There is no set rule regarding amount used (e.g. rules such as 10% or 1 chapter have been rejected by the courts). You should avoid using a portion that is the “heart” of the work.

Weighs in Favor of Fair Use

Weighs Against Fair Use

☐ A decidedly small amount such as one chapter or less of the work is used.

☐ Multiple chapters of the work are used.

☐ Amount used is narrowly tailored to accomplish educational objective in course curriculum.

☐ Amount used is more than is necessary to accomplish educational objective in course curriculum.

☐ A small number of chapters of the work are used, and you have concluded that both the effect on the market (factor 4) and the purpose and character of use (factor 1) favor fair use.

☐ Multiple chapters of the work are used, and you have not concluded that both the effect on the market (factor 4) and the purpose and character of use (factor 1) favor fair use.

 

Factor 4: Effect on the Market for Original

Note: you must own a lawfully acquired or purchased copy of the original work that is used: this may be a personal copy or a copy owned by the institution (e.g. a library copy) – this may NOT be a copy obtained through Interlibrary Loan or other rented or borrowed source.

This factor carries the most weight, but is not so weighty that it determines fair use analysis. Favorable use of the first 3 factors may outweigh unfavorable results here.

Weighs in Favor of Fair Use

Weighs Against Fair Use

☐ The work as a whole is currently available for purchase, and a conveniently and efficiently accessible and reasonably priced digital license is NOT available.

☐ The work as a whole is currently available for purchase, and a conveniently and efficiently accessible and reasonable priced digital license IS available.

☐ The work as a whole is not available for purchase, and a digital license is NOT available.

☐ The work as a whole is not available for purchase, and a digital license IS available.

 

Based on the University System of Georgia “Fair Use Checklist”. Used with permission.

About the TEACH Act

The Technology Education and Copyright Harmonization Act (TEACH) authorizes, for digital distance education purposes, performance and displays of copyrighted works that are analogous to the kinds of performances and displays of copyrighted works taking place in the live classroom setting.

Although this Act expands the categories of works that can be reproduced for distance education, the Act includes several additional safeguards to prevent the unauthorized use of copyrighted materials, including:

  1. requiring the performance or display of the work to be made by or at the direction of an instructor as an integral part of a class session;
     

  2. requiring reception of the performance or display of the work to be limited to students officially enrolled in the course for which it is made;

  3. requiring transient copies to be retained only as long as reasonable necessary to complete the transmission; and
      

  4. limiting performance of certain works to reasonable and limited portions.

 

TEACH Act FAQs

Q: Does the TEACH Act allow us to use materials in distance education on the same terms that we may use copyrighted works in the traditional face-to-face classroom?
A: No. Section 110(1) of the U.S. Copyright Act applies to the "performance" or "display" of copyrighted works in the traditional classroom, and it is a broad and generous provision. It is brief and sets forth few limitations. These activities are not infringements of copyright: "performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction. . . ." The law does bar uses of audiovisual works that might be unlawful copies. Keep in mind that this statute allows displays and performances. It does not apply to making copies of any works. For that issue, you generally need to turn to fair use.

Q: If I properly include a clip of a copyrighted work in one "class session" as part of my online course, can students continue to access that session repeatedly throughout the semester or other term of the course?
A: If repeated access is necessary to meet teaching objectives, yes, students can access the session repeatedly.

Q: Can I use the same clip of the copyrighted work in a later class session?
A: Yes. Consider this example. I am teaching in distance education this semester. In September I used a film clip, consistent with TEACH, and I left it on the server for some short duration of a "class session." The students can no longer access that session. Today is November, and I want to emphasize a point and show once again the same clip. The TEACH Act does not bar the reuse of the same clip in the context of a second class session, whether you are reinforcing an earlier point or making a new point from the same work.

Q: Can my distance education course include a link to copyrighted materials available on another website?
A: In general, simple linking to authorized sites (like a public website) is not a copyright violation. Some concern might arise; if you have concerns about the legitimacy of the site where you are linking, for example. But in general, links are not a copyright problem. In fact, linking straight to a work on another website or in a database is often an effective means for avoiding the copyright concerns about reproduction and the like. 

More On TEACH Act

Government & University Sites

Licensing Your Work

Blogging, Podcasting & Recording Lectures

Fair Use FAQ

Q: What about images, video clips, or other multimedia? Don't special rules apply?

A: The Fair Use doctrine makes no distinctions between different media or formats. Therefore the four fair use factors can still be applied to use of multimedia. However, some common uses listed below are typically considered fair use:

  1. Students may incorporate portions of lawfully acquired copyrighted works when producing their own educational multimedia projects for a specific course.
  2. Students may perform and display their own multimedia projects for educational uses in the course for which they were created and use in their own portfolios as examples for later personal uses (e.g. job and graduate school interviews).
  3. Educators may incorporate portions of lawfully acquired copyrighted works when producing their own educational multimedia projects for their own teaching tools in support of curriculum-based instructional activities at educational institutions
  4. Educators may perform and display their own multimedia projects in face-to-face instruction or posted online in a secure location, such as Talon.

Q: The rules keep repeating to use a "lawfully acquired copy". What exactly is a "lawfully acquired copy"? 

A: In the case of educational use, it means copying the portion of the work you use from a personal copy or a college-owned copy (often a Library copy). Specifically, copying a portion from a rented or interlibrary loaned copy is *NOT* using a lawfully acquired copy, because it was only borrowed, not owned by the instructor or the institution.

 

 

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