There are two additional ways teachers may use copyrighted material beyond the special provisions for classroom use outlined in the copyright law. These methods apply to all persons (including our students when they make use of copyrighted materials). The Fair Use doctrine provides for a range of possible justifications for use of protected material both within and outside the academic world of teaching, scholarship, and research. Further, it is possible to obtain permission in the form of licenses and/or releases to allow for use of protected materials. While there may be a fee associated with obtaining either a license or a release, the fee is frequently minimal (certainly in comparison to the risk of facing litigation or loss of a job due to violation of the law!) Follow the links above for more information on each of these topics and return to the main copyright page to obtain information about the reference materials that were used to prepare this summary. Fair Use Outside the Classroom: Fair Use protections extended to classroom teaching situations provide far greater flexibility than is available to us in non-teaching settings. Creating personal web sites, for example, may require us to adhere to a stricter standard. The following factors may be used as justification for copying of a portion of a work:
Even if the copied excerpt can be justified under one of these six uses, there are still limitations on the amount of a work that can be copied. Unfortunately, there are not clearly established limits on the amount of a work that can be legally copied for the purposes listed above. Benedict O'Mahoney, on The Copyright Website points out that judges have considered whether "'no more was taken than was necessary' to achieve the purpose for which the materials were copied" Finally, copying portions of a work must not be viewed as likely to diminish the market for the original work. For example, posting a novel online could reasonably be construed as diminishing the likelihood that people will purchase the book. Posting a short story from an anthology could decrease its marketability, too. There are several categories of material that is free from copyright restrictions. These include:
Note that some folks copyright their works (such as some clip art sites) and then grant permission for use as long as some condition is met (such as including a citation or link to the originating web site). Also be aware that some web sites claim to offer clip art and graphics that are free from copyright but may contain works that actually have been copyrighted. A word of caution might suggest that any clearly identifiable cartoon character, for example, should not be used unless specific written permission is obtained from the holder of the copyright. Obtaining permission to use part or all of a copyrighted work can frequently be done by contacting the copyright holder. Note that this is probably not the original creator of the work. Also, be aware that obtaining this type of permission constitutes a legal contract with several standard parts. A request for permission to use copyrighted material should include these basic facts so they can become part of the contract:
It is possible that nonexclusive oral permission may be granted by phone or in person, but it is more likely with major publishers that a written agreement will be created. In either case, the agreement is considered a contract and is subject to contract law/litigation. When permission is obtained (likely after obtaining a fee), the copyright holder will likely supply an agreement to be signed that indicates the fee, reiterates the conditions listed above, and elaborates on other restrictions the copyright holder wishes to apply. The book Getting Permission (cited earlier) provides proposed contracts that you could supply to the copyright owner supplying all the needed information to them (as described above). Chances are good that major publishers will have their own agreements that they will supply to you, also containing the information about use with possible modifications. It is possible that the copyright holder may place additional restrictions or not allow for exactly what was described in the initial request for permission. If this occurs, a decision must be made as to whether the additional restrictions (particularly balanced against the costs) is worth it to pursue the agreement or simply choose NOT to use the work. Locating the copyright owner can be one of the biggest challenges for some works. If there is a publisher indicated on the work, start there. If you are unsure, start with online bookstores (such as Amazon.com or Barnes & Noble) to track down the information. Using reference materials such as Books In Print and Books Out Of Print can be done either through the bookstores or through your local library. Note that even if a work is "out of print", that does not mean that the copyright does not apply. A last resort might be to pay the copyright office to perform a search to identify the rights holder for a work. If even this fails to turn up a copyright holder, a decision must be made and a couple of principles may guide that decision:
Again, the vast difference between preparing handouts for a workshop and publishing some content on the web becomes evident in these two questions. If the audience for the distribution of handouts is known, this may also allow us to minimize the risk. Good web sources of information:
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