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Copyright and Fair Use: Copyright vs. Fair Use

Overview of fair use, DMCA, TEACH Act, and recent court decisions

Understanding the Winthrop Copyright Policy

Understanding the Winthrop Copyright Policy

To help members of the University community understand current copyright law and its implications for our use of copyrighted material, we provide the following discussion and guidelines. This is an interpretation and should not be construed as legally-binding; it represents the collective interpretation of many people who are learned in the area but who are not lawyers. If you have specific legal questions about the policy, please consult the Dean of Library Services.

What is protected by copyright?

Copyright protection of any work, be it print, visual, or digital, begins as soon as an original work is created in a tangible medium of expression. Publication and/or registration of the work are not required to trigger copyright protection. Drafts, assignments, sketches, home movies, family pictures, letters, etc., as well as more formal works, are fully protected by copyright as soon as they are fixed in a physical form. The level of originality required is minimal. A work does not need to display the © symbol or a statement that the material is copyrighted to be protected.

When creators speak of "copyrighting" their work, they are probably referring to registering their work formally with the United States Copyright Office. Registering the work, while not necessary to obtain full copyright protection, is relatively straight-forward, inexpensive, and recommended.

How long does copyright last?

In an effort to end what amounts to perpetual protection, Congress has devised a scheme to allow unpublished works to begin entering the public domain in a gradual fashion. Unpublished works began to enter the public domain on December 31, 2002, as long as the creator had been dead for at least 70 years. At the end of each subsequent year, additional works meeting these criteria will enter the public domain. The following chart shows the time constraints under the current copyright law.

  1. Term of joint works is measured by life of the longest-lived author.
  2. Works for hire, anonymous and pseudonymous works also have this term.
  3. Under the 1909 Act, works published without notice went into the public domain upon publication. Works published without notice between 1-1-78 and 3-1-89, effective date of the Berne Convention Implementation Act, retained copyright only if efforts to correct the accidental omission of notice were made within five years, such as by placing notice on unsold copies. (Notes courtesy of Professor Tom Field, Franklin Pierce Law Center, and Lolly Gasaway) Chart used by permission. Source:
  4. See Also:

Who owns the copyright to a work?

A copy of the work is not the same as copyright. Ownership of the physical item, such as a book or a CD, is not the same as owning the copyright to use that work however you wish. Under the first sale doctrine, ownership of a physical copy of a copyrighted work like a book permits lending the item, reselling the item, disposing of the item, destroying the item, and so forth, but it does not permit copying the item in its entirety because the transfer of the physical copy does not include transfer of the copyright to the work. Therefore, just because you own a copy of a book, DVD, CD, etc., does not necessarily mean you hold the copyright to redistribute material from that copy.

Why should you care about copyright?

Aside from the fact that the work of a university must always include respect for intellectual property and its creators, there are significant legal implications to consider. The University of Texas’ “Crash Course in Copyright” points out:

Before you throw up your hands and say, "What's the use," consider your own liability for copyright infringement. Individuals are liable for their own actions. Copyright owners have sued and probably will continue to sue individuals. They will probably sue the University too, but that may not insulate the individual who took the allegedly infringing action from the full force of a lawsuit. 

The penalties for infringement are very harsh: the court can award up to $150,000 for each separate act of willful infringement. Willful infringement means that you knew you were infringing and you did it anyway. Ignorance of the law, though, is no excuse. If you don't know that you are infringing, you still will be liable for damages - only the amount of the award will be affected. Then there are attorneys' fees....

There is one special provision of the law that allows a court to refuse to award any damages at all if it so chooses, even if the copying at issue was not a fair use. It is called the good faith fair use defense [17 USC 504(c)(2)]. It only applies if the person who copied material reasonably believed that what he or she did was a fair use - as would likely be the case if you followed this Policy! If you qualify for this defense, it makes you a very poor prospect for a lawsuit. On the other hand, if you disregard sound advice about fair use, a court would be free to award the highest level of damages available. This makes someone who ignores policies a handsome target for a lawsuit (

How Do You Determine “Fair Use”?

No term in copyright is more contested than “fair use,” and not even Congress seems to understand what is meant by it in all circumstances. It is not a license to do whatever you like with copyrighted material for instructional purposes. George Mason University’s Copyright Office usefully defines “fair use” as “what you are allowed by law to photocopy -- at the moment of inspiration, when there's not enough time to seek permission -- commonly referred to as ‘spontaneous fair use’ “ ( Again: Just because a work is being used in a classroom does not guarantee that it is “fair use.”

To determine if the material is being used fairly, four questions must be answered. It's important to remember that it is the collective answer to all four questions, not just the answer to any individual question, upon which the determination of fair use is based.

  • What is the purpose and character of the use?
  • What is the nature of the work to be used?
  • How much of the work will you use?
  • What effect would this use have on the market for the original or for permissions if the use were widespread?

The purpose and character of the use is usually defined as being either commercial (for profit) or non-profit; educational use can fall into either category, so “educational use” alone is not enough to satisfy the fair use test. If the material is being used in a “transformative” way—that is, not as a verbatim copy but in a reworking or adaptation, the transformation may help determine fair use, but legally it alone cannot determine it.

The nature of the work also contributes to a fair use determination. If the copyrighted material is factual (technical, scholarly, scientific) rather than interpretative (e.g. literary or artistic), it may pass this test more easily since there are fewer alternate ways to express factual materials.

The amount of the work used in relation to the whole work also must be factored in. Generally, the larger amount of the original work you use, the less likely it is to be fair use; however, the courts have also held that use of even a small amount of the work, called “the heart of the matter,” may violate fair use in certain circumstances.

The effect on the market for the original use must also be determined. If your use would negatively affect the market for the original, it is not likely to be considered “fair use.”  (For instance, if you distributed a photocopy of one chapter of a book so that students didn’t have to buy the entire book, it would probably not be fair use because you are undermining the market for the book.)

There is no clear agreement among copyright specialists over what absolutely is or is not fair use. To comply with copyright laws, it’s best always to take a conservative approach. For a clear and intelligent description of these factors, see NC State’s Copyright Tutorial ( ) and the University of Texas’ Crash Course in Copyright (

Are there generally agreed-upon fair uses for education?

It is generally considered fair use to make a single copy of a journal article from an issue or a chapter or other small portion from an entire work such as a book for personal teaching or research uses. Furthermore, a library may make copies of materials for its patrons under fair use as well as under the conditions set forth in Section 108 of the copyright act . And libraries that qualify for Section 108 protection will not be liable for unsupervised use of reproducing equipment used on the premises if the reproducing equipment displays a notice that the making of a copy is subject to the copyright law.

Section 110(1) of the copyright act allows educators and students to perform or display works in the course of face-to-face teaching activities at a nonprofit educational institution, in a classroom or similar place devoted to instruction. There is no limitation on the types or amounts of a work that can be performed or displayed except that an audiovisual work that is not lawfully made cannot be shown. This section authorizes, for example, displaying a picture, drawing, or photograph; showing an entire movie; acting out or performing a play or opera; and performing musical compositions as well as sound recordings in the classroom.

What if the copyright material is used repeatedly?

If you use copyrighted material repeatedly in your courses, you fail the “spontaneity” test for fair use, so you need to request permission to use the material in your classroom. You can find a template for a request letter at You must always have written permission to use a copyrighted work if you are copying an entire work (or more than 2500 words of the original) or using it repeatedly.  This use includes placing it on library reserve (but see below).

Alternatively, if the material is accessible in a database to which the library subscribes, you can repeatedly give out the URL to the material rather than the material itself, and let the students download the material. Securing written permission is becoming increasingly hard.  While the Copyright Clearinghouse Center ( will take all the guesswork out of using a source (it finds copyright holders, permissions, etc. on all media), it can be very expensive and time-consuming.

What about student work?

The typical student, who has no employment relationship with the university, is the copyright holder to any original works he/she creates. This would generally include papers, tests, emails, theses, dissertations, etc. Keep this in mind before re-using a student's material; such uses are protected by the Winthrop University Intellectual Property Policy.

Generally, you can use a student’s work in the class where it was created in any way you and the student wish to—but if you wish to use it in later semesters, you should get a copyright release from the student. You can find a sample form to do so at You should print it out, fill it out, get it signed, and make sure that you give a copy of the completed form to the student.

Students can also use selections from copyrighted materials in class assignments, so long as they do not further make copies of them or otherwise infringe on copyright. That is, a student can use a copyrighted painting or poem or movie clip in a class assignment but isn’t permitted to “rip” illegal copies to watch for his or her own pleasure or to share with friends.