Jeanne Boyle Associate University Librarian   for Planning and Organizational Research jeboyle@rci.rutgers.edu From the RUL Report - Spring 2001

Research Resources: Subject Research Guides: Copyright:
Copyright Matters

The Congress shall have Power To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries...

The Constitution of the United States. Article I. Section 8.

Everyone owns and uses copyrighted works. Your family snapshots, the letter you wrote to your congressman, the scholarly paper you had published last month are all eligible for copyright protection. In the digital environment, images you find on the Internet, emails you send and receive, and text that you find on websites are also covered. What is copyright, anyway, and why should we learn about it?

According to the law, "copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression…" Works that are produced in paper, on audio or videotape, and that come to us electronically are fixed. Visual works, such as paintings, and the written expression of software are also fixed and come under copyright protection. There must be a modicum of originality in the work, so facts, ideas, forms, and the like are excluded.

The rights of the creator of a copyrighted work are exclusive and sweeping. They include the rights to reproduce their work; prepare derivative works using their work as a basis; distribute electronically or publish copies; publicly perform music, prose, poetry, a drama, or play a video or audio tape or a CD-ROM, etc.; and publicly display a work on a computer screen or otherwise. The term of copyright was recently extended to the life of the author plus 70 years. Creators no longer need to include a copyright notice or register their works in order for their works to be covered.

After granting these exclusive rights to the creator of a work, the law then carves out a number of exemptions that grant rights to those of us who wish to use the work. These exemptions are intended to strike the balance between creators and users that is derived from the purpose of intellectual property law specified by the U.S. Constitution. It is a common misconception among educators that there is an automatic and general exception for educational uses. There is no such broad exemption. Instead, we are able to use works in the classroom and in new scholarly works only by using specific exemptions in the law having to do with fair use, library copying, the first-sale doctrine, public displays, displays and performances in face-to-face teaching and in distance education, and computer software. It is these exemptions that allow academic and public libraries to make copies; libraries, businesses, and individuals to loan or sell books, rent movies, or give books, CDs, and videos to friends as gifts; teachers to recite poetry, read plays, show videos or slides, play music, and engage in other similar activities in the classroom or transmit them to remote locations, and users to modify a computer program so that it works on a certain computer and or make a back up copy.

Fair use is an important umbrella exemption that we can call upon when the use we want to make of a work is not allowed by any of the specific exemptions. It includes use by reproduction in copies or phonorecords or by any other means specified by section 106 of the law for such purposes as: criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research. To determine whether the use made of a published or unpublished work in any particular case is a fair use, four factors must be considered:

• Purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
• Nature of the copyrighted work
• Amount and substantiality of the portion used in relation to the copyrighted work as a whole
• Effect of the use upon the potential market for or value of the copyrighted work

Whether a use is fair or not is determined by a balancing of all the factors, although today the fourth factor is generally considered to be the most important. Individuals wishing to make a fair use of a copyrighted work are expected to make a good faith effort to think through each of the factors for each work and situation.

Just as we finally seem to be making headway in learning how to use technology to enhance the learning experience of our students and to create and distribute new scholarly works, we are finding that copyright law will not let us do all that it is technically possible to do. In the world of paper and other traditional formats, we naturally understand that works are owned and copyrighted and how they ought to be distributed and used. In the digital age, for digital projects, the issues are less clear. The questions that arise still relate to ownership and how works ought to be distributed and used, but we have not yet developed the same natural understanding we need to move with confidence and respect through the digital environment. We all need to be familiar with copyright law and its meaning so that we can make intelligent, good faith decisions about sharing our work and using the work of others. Our decisions come at a time when there is a rise in new legislation and a paucity of relevant case law and up to date policies. We are left to infer as best we can how existing laws and policies apply to OUR project.

Besides the law, there is other help available and on the way.

Fair use guidelines that serve as safe harbors for some situations are available. A Rutgers University administrative memo issued in 1986 directs all of us to follow the guidelines for classroom photocopying. There is also an interim university copyright policy. The law, the guidelines, university policy, and other helpful materials are available on the Libraries website at http://www.libraries.rutgers.edu/rul/rr_gateway/research_guides/copyright/copyright.shtml. Scroll to the bottom of any page and click on "For Further Copyright Information".

The Committee to Review University Copyright Policy is hard at work and plans to issue a draft policy for university-wide discussion and comment during the coming spring semester. Vice President Joseph Seneca appointed University Librarian Marianne Gaunt and Professor Robert Wood, FAS-Camden, to chair the Committee of 24 faculty and administration representatives. Information about this committee is also available on the Libraries' copyright Web page.

In the meantime, the following questions are a brief checklist for working through determining if the use you want to make of a copyrighted work is allowed:

• Is the work protected?
• If the work is protected, do you wish to exercise one of the owner's exclusive rights?
• Is your use exempt or excused from liability for infringement?
• Is your use covered by university policy?
• Is there a relevant guideline?
• Is your use a fair use?

For creators of new works, the following questions form a companion framework"

• What do you want to do with your work?
• Does your publisher's copyright agreement allow the uses you need?
• Do you have the resources to manage and exploit the rights you think you want to retain?
• What do your co-authors wish?
• What about future uses?

Good luck, and please stay tuned.