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Frequently Asked Questions
Does copyright law protect computer programs and other works in digital or electronic media? Can I use copyrighted material in a coursepack or on a course website? Does copyright law protect unpublished, archival works? When can I use a person's name, likeness, voice or signature? What do I need to consider when using images on websites and in other publications? Where can I find information about digitizing collections? Is "deep linking" a copyright violation? Where can I get more information about MGM v. Grokster? Where can I find out more about Google Print?
Does copyright law protect computer programs and other works in digital or electronic media? Works in digital or electronic media, such as computer software and MP3 files, are deemed to be "fixed in a tangible medium of expression" and, as a general matter, tend to contain some element of "authorship" such that they are likely protected under copyright law (and possible patent law). Top Can I use copyrighted material in a coursepack or on a course website? The use of copyrighted material in a coursepack or on a course website without authorization is not legal unless such use falls under the Fair Use exemption. Although no single “fair use” factor is determinative, the use of copyrighted material is, on balance, more likely to be a “fair use” if:
Of course, with respect to the use of any copyrighted material, you should always include the copyright notice that appears in the work as well as source citations and attributions of authorship. For further examples of “fair use” in an educational context, particularly with regard to the use of copyrighted materials in a course management system such as Blackboard, see: http://www.copyright.iupui.edu/fuscenarios.htm. lf your proposed use of copyrighted material does not qualify as a “fair use”, you should obtain permission directly from the copyright owner or distribute the material through E-Reserves or an outside vendor that is responsible for securing the necessary distribution rights. With regard to articles in academic journals, you may also check with the Library to determine whether the University already has a license with the publisher that permits the distribution of printable electronic copies to enrolled students such that including the article in a coursepack or posting it on a very secure, password-protected website for your course would be acceptable. Top Does copyright law protect unpublished, archival works? Copyright law protects both published and unpublished works. Indeed, courts have recognized what is known as an author’s right of “first publication” and have held that the unpublished state of a work weighs against a finding of a “fair use.” In general, scholarly research involving the use of quotations from letters and/or archival materials – where the letters/materials will not be reproduced in full – is not considered “publication” and would ordinarily be considered a “fair use.” Top When can I use a person's name, likeness, voice or signature? The use issue of a person’s name, likeness, voice or signature may infringe that person’s “personality rights,” which vary according to state law, even if that person is deceased. If you intend to use a person's name, likeness, voice or signature for trade or commercial purposes, you should secure permission from the person or the person’s estate or agents. If you are simply using the name or likeness of a person for academic, non-profit purposes, you do not need permission. For more information on personality rights, click here and here. Top What do I need to consider when using images on websites and in other publications? The use of copyrighted images often calls for additional considerations that reach beyond the standard “fair use” criteria: 1. Copyrighted photographs of copyrighted works (e.g., a photograph of a sculpture) contain two layers of copyrights: Those belonging to the photographer (or the publisher of the photo) and those belonging to the author (or publisher) of the work that appears in the photo. However, a photograph that is no more than a “slavish” copy of another work -- such as a copy-stand photograph taken only for purposes of copying or recording the underlying work of art -- may itself lack sufficient “authorship” or expression to qualify for copyright protection. Of course, the work of art appearing in the photograph may still be protected. 2. The size and resolution of a copyrighted digital image has a significant bearing on whether the use of that image on a website qualifies as a “fair use” . The smaller the image, the more likely the use falls under the exemption. For example, “thumbnail” images limited to 125 x 125 pixels have been deemed a fair use, per se, because they are not suitable for sale as prints or otherwise prone to commercial exploitation and misappropriation. However, using larger digital images with higher resolutions is more likely to qualify as a “fair use” if the image is displayed with technological restrictions (e.g., password protection, encryption, etc.) that protect against unauthorized downloading. 3. You should also keep in mind that the University offers a variety of resources in this area such as Almagest and ArtStore. 4. The display of an image on a course website is more likely to fall under the “fair use” exemption if the website includes educational commentary or study questions regarding the image (and the website is accessible only to students and visitors who are enrolled in the course). For links to additional collections of images and clip art that may be used (according to the terms found on the various sites) with limited risk of infringement, see: http://www.kn.sbc.com/wired/fil/pages/listclipartcl1.html Top Where can I find information about digitizing collections? For a great discussion of digitizing projects for library resources, see: http://www.utsystem.edu/ogc/intellectualproperty/l-diglib.htm For information on fair use websites (digital images made available for fair use) see: http://www.utsystem.edu/ogc/intellectualproperty/portland.htm Top What if it is nearly impossible to obtain permission because the copyright holder is currently unknown or does not respond to queries? “Orphan works” are copyrighted works whose owners are difficult or even impossible to locate. The uncertainty surrounding the ownership of such works may discourage their dissemination and incorporation in new creative efforts that, true to the Constitutional purpose of the Copyright Act, “promote the Progress of the Arts and Sciences”. In many cases, it is likely that such works were “orphaned” because they did not produce much, if any, income for their owners. While the use of an “orphan work” does not automatically qualify as a “fair use,” the fact that the owner has proven to be difficult or impossible to locate after a “good faith” inquiry on the part of the user (such that there is no market for the sale or licensing of the work) weighs in favor of a “fair use.” The U.S. Copyright Office is considering whether the concerns raised by orphan works merit a legislative, regulatory or other solution. Further information on this issue can be found at http://www.copyright.gov/orphan/index.html. Also see the Chronicle of Higher Education on the dilemma of orphan works, click here: http://chronicle.com/prm/weekly/v51/i47/47a03301.htm Top Is "deep linking" a copyright violation? “Deep links” are web links that connect directly to a webpage without first stopping at the homepage of the company or organization hosting the webpage. Such links may upset commercial website owners because the links often bypass the advertisements and other identifying material on the owner’s homepage. To protect against claims of copyright or trademark infringement, it is important to set up your deep links so that it is clear to the user that the linked webpages are clearly separate from your own webpages. You may also want to consult the linking policy, if any, on the homepage of site to which you are linking. Here’s a helpful article about deep linking. Top May I de-crypt a DVD in order to excerpt a small piece of a film for an educational or other "fair use" purpose? The Digital Millennium Copyright Act (“DMCA”) prohibits, among other things, “circumventing a technological measure that effectively controls access to a work,” and at least one court has held that this prohibition applies regardless of whether the proposed use of the protected work is a “fair use”. Legal scholars are challenging this position, but at this time the law says such de-cryption violates the anti-circumvention provision of the DMCA. Top Read this article, used by permission of Marc Friedman and Sayuri Rajapakse to learn more about Works-For-Hire. Top Where can I get more information about MGM v. Grokster? These two articles offer information about this significant Supreme Court ruling:
Where can I find out more about Google Print? This bibliography http://www.escholarlypub.com/oab/oab.htm presents selected electronic works about Google Print that are freely available on the Internet. It has a special focus on the legal issues associated with this project. Page numbers for print/electronic publications are not included unless they are mentioned in the electronic version. To search Google Print's index, go to http://www.print.google.com. NOTE: This website is for your general information and education only and does not constitute legal advice. Please feel free to contact the Office of the General Counsel with specific questions regarding copyright law as it applies to your work at the University. The contents of the OGC Copyright web pages are licensed under a Creative Commons License. |
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