Copyright & Fair Use Guidelines
Copyright at ACPHS
The Albany College of Pharmacy and Health Sciences community recognizes and respects intellectual property rights set forth in the Copyright Law of the United States, while striving to use published materials responsibly and fairly for teaching, learning, and research.
This guideline was created to assist the ACPHS community in using copyrighted materials responsibly and fairly. It provides education and access to appropriate decision-making tools. The Lewis Library, its staff, and the College cannot give legal advice regarding copyright law. Is it up to each individual in each instance of use to determine whether intended use of materials adheres to the Copyright Law of the United States.
Individuals who disregard the law are liable for infringement.
What is copyright?
Copyright is a constitutionally conceived property right that is designed to promote the progress of science and the useful arts by securing for an author the benefits of his or her original work of authorship for a limited time.
The U.S. Constitution states:
“The Congress shall have Power…to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors exclusive Right to their respective Writings and Discoveries.”
The Copyright Law (U.S. Code Title 17 and its amendments) implements this policy by balancing the author’s exclusive rights against the public interest.
Copyrights set up a monopoly, granting the copyright holder the exclusive right to reproduce, distribute, perform, display, or license the work. However, this is a limited monopoly. Exemptions [link] are built in to the law to benefit the public.
“Copying” includes photocopying, printing, scanning, posting, recording, duping, or any other means of reproducing a work either in part or entirety. Linking to copy of an electronic work is not copying.
Works protected by copyright
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Literary works |
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Musical works, including any accompanying words |
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Dramatic works, including any accompanying music |
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Pantomimes and choreographed works |
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Pictorial, graphic, and sculptural works |
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Motion pictures and other audiovisual works |
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Sound recordings |
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Architectural works |
Facts and ideas are not covered by copyright protection; the unique expression of them is. “Original works of authorship” that are “fixed in a tangible medium” are automatically copyrighted upon their creation. Do not assume that if the copyright symbol (©) does not appear on a work, that it does not fall under copyright protection.
Works not protected by copyright
Works in the public domain do not have copyright protection. This means that their creators do not have the exclusive rights outlined above. Public domain works are either those whose copyright term has expired or U.S. Government publications. Determining public domain status can often be complicated. A reliable public domain guideline created by Cornell University is available.
Copyright exemptions
While the law establishes a limited monopoly for the exclusive use of copyrighted works, it balances these rights with the public good. Copyrights are limited under particular conditions. These rights and conditions include:
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Limitation on the right of reproduction: Non-profit educational libraries can make limited copies. (USC, Title 17, §108) |
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Limitation on the right of distribution: Once a lawful copy is obtained, one may distribute that copy through loan, rental, or sale. (USC, Title 17, §109) |
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Limitation on the right of public performance and display: Non-profit educational institutions can perform or display some works in physical face-to-face teaching and virtual classroom situations. (USC, Title 17, §110) |
Fair use
Unlike other exemptions, the law does not lay out specific conditions that must be met in order for the fair use exemption to be used. Fair use is interpretive. A user must perform an analysis of his or her intended use based on four factors outlined below.
The Fair Use Doctrine (USC, Title 17, §107) states that:
“…the fair use of a copyrighted work, including such use by production in
copies, or phonorecords or by any other means specified by that section, for purposes such as
criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or
research, is not an infringement of copyright. In determining whether
the use made of a work in any
particular case is a fair use the
factors to be considered shall
include—
(1) the
purpose and character of the use, including whether the use is of a
commercial nature or is for
nonprofit educational uses;
(2) the
nature of the copyrighted work;
(3) amount and substantiality
of the portion used in relation to
the copyrighted works as a whole;
and
(4) the effect of the use on the
market for or value of the
copyrighted work.
The fact that a work is unpublished shall not itself bar a finding or
fair use is such finding is made
upon consideration of all the above
factors.”
Determining fair use
The law is intentionally vague on this subject, and there is no definitive test for fair use. The user must make a good faith attempt to weigh and balance the four factors in order to come to a fair use conclusion.
Analyzing the four factors
(1) Purpose of use: Ask yourself, why is the copyrighted work being used? If the answer is for non-profit and educational use this generally weighs in favor of fair use. Commercial uses generally weigh against. However, not all educational uses will be fair and not all commercial uses will be unfair, so be sure to complete the entire analysis using all four factors. Transformative and reportage uses—for instance if the work is to be used to create parody or critique—usually favor fair use.
| Favoring |
Disfavoring |
• Educational (teaching, research, scholarship, criticism, comment)
• Transformative or productive use
• Non-profit use |
• Commercial, entertainment, or other
• Non-transformative/verbatim/exact copy
• Profit-generating use |
(2) Nature of the publication: Is the work you intend to use factual or highly creative? The use of factual materials, such as newspapers, research reports, and scholarly articles of factual nature, generally weighs in favor of fair use. The use of highly creative works, such as poems or plays, is more restricted.
Remember that works are automatically copyrighted upon their creation. Publication is not a requirement for copyright protection. The use of unpublished materials is generally more restrictive than published ones.
“Consumable” materials, such as test forms, research instruments, and workbook pages, are meant to be used and repurchased.
| Favoring |
Disfavoring |
• Factual, nonfiction, news
• Published work |
• Creative (visual art, fiction, music)
•Consumable (tests, research instruments, worksheets)
• Profit-generating use
• Unpublished work |
(3) Amount and substantiality of the work: What portion of the work are you reproducing? The smaller the portion of the work being used the more likely the use will be fair. Limit reproduction only to the amount of material needed. For example, if only a few pages of a book are needed, do not reproduce the entire chapter.
What is the nature of the portion you are using? Use is more likely to be fair if the reproduced portion does not constitute the “heart” or essence of the work.
The law does not specify word counts or percentages of a work when analyzing the third factor. The Agreement on Guidelines for Classroom Copying, authored by representatives of the educational community and publishers, and made part of the Congressional Record in 1976, has been considered a “safe harbor” when interpreting and applying this third factor during fair use analysis. Here you will find specified amounts for various types of works. Keep in mind that the Agreement has no legal bearing. It is a guideline only.
| Favoring |
Disfavoring |
• Small quantity
• Portion used is not central to the entire work
• Amount is aprorpiate to educational use
|
• Large portion or entire work
• Portion used is central or the "heart" of the work
• Includes more than necessary for educational purposes |
(4) Effect on the market: Are you reproducing the work only to avoid purchasing it? If so, this goes against fair use.
Ways to purchase the work include permissions through the Copyright Clearance Center, licensing of electronic resources, and the purchase of a hard copy.
Fewer copies favor fair use.
| Favoring |
Disfavoring |
•No significant effect on the market or copyrighted work
• One of few copies made/distributed
• No longer in print;
absence of licensing mechanism
• Restricted access (limited to students in a class)• One-time use,
spontaneous use |
• Cumulative effect of copying would be a substitute for purchase of the work
•
Numerous copies made
• Reasonably available licensing
mechanism for obtaining permission
• Repeated or long-term use |
Decision making tools
It is recommended that you use a checklist like the one found above to perform your fair use analysis in each instance of use. Print and permanently retain a copy of this analysis as documentation of good faith behavior in case legal protection becomes necessary.
Getting permission
If your analysis does not favor fair use, you need to request permission from the copyright holder in order to use the material. This may be done through the Copyright Clearance Center or by asking permission directly from the owner.
If you wish to ask for permission directly, first you must identify the copyright holder. It is best to confirm by email or telephone before asking permission. Give yourself several weeks lead time. When requesting copyright permission, include the following information:
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Your name, address, telephone number, and email address |
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Your title, position, and institution’s name |
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The date of your request |
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The title of the work to be copied, with a description and citation of that work |
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A description of how the work is to be used, by whom, and for how long |
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A signature line for the copyright holder to sign, signifying that permission has been granted |
View a sample letter from the University of Maryland.
Using either method, be prepared to pay a licensing or royalty fee. If the fee is too high or you receive no response, use other materials or investigate other means of using the material legally.
Just as you would fair use checklists, keep your permissions on permanent file.
Referenced and additional sources
General
U.S. Copyright Office
Copyright Crash Course, University of Texas System
Circular 21: Reproduction of Copyrighted Works by Educators and Librarians, United States Copyright Office
Legal
U.S. Copyright Law
Code of Federal Regulations
Supreme Court Decisions
U.S. Circuit Court of Appeals Decisions
Guidelines
The Agreement on Guidelines for Classroom Copying
Copyright Term and the Public Domain in the United States, Cornell University
Decision Tools
Fair Use Evaluator, Michael Brewer & ALA Office for Information Technology Policy
Fair Use Checklist, Cornell University
Know Your Copy Rights, Association of College & Research Libraries
Stanford's Copyright Renewal Database
Stanford's Copyright & Fair Use Interactive Charts and Tools
Permissions
Locating U.S. Copyright Holders, WATCH File (Writers, Artists, and Their Copyright Holders). The Harry Ransom Humanities Research Center, University of Texas at Austin and the University of Reading
Guide to Getting Permission, Copyright Management Center, Indiana Purdue University
Sample request for permission, University of Maryland
Copyright Clearance Center
Tutorials
Crash Course in Copyright, Georgia Harper, Office of General Counsel University of Texas System
Copyright Primer : An Interactive Tutorial from Center for Intellectual Property and Copyright, University of Maryland University College
A Visit to Copyright Bay, University of St. Francis, Joliet, IL