United States copyright law protects the creators and owners of intellectual works while allowing for fair use of these works by the public. More specifically, this law aims “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” (Constitution of the United States, Artl.1, S.8, C.8).
The following information provides some general guidelines about U.S. copyright law and fair use, but is only an introduction. Seek legal counsel for legal interpretation of the use of intellectual property under copyright law. Contact Reese Julian (801.832.2256 or email@example.com) if you have any questions.
U.S. copyright law applies to any work fixed in a tangible medium of expression (written, recorded, etc.). Although creators can use the U.S. Copyright Office to register their work with the public, such action is unnecessary to protect it under copyright. Copyright law also grants creators and owners of intellectual works the following rights:
- To produce copies of the work
- To make derivative works of the original work
- To distribute copies of the work
- To publicly display or perform the work
If a creator feels there is an infringement against these rights, it is their right under copyright law to seek legal action against the perceived offender.
17 U.S. Code § 107 of copyright law affords fair use rights to the public who wishes to use a copyrighted work. The doctrine of fair use limits the exclusive rights of a copyright holder, allows for the legal use of a copyrighted item without the consent of a copyright holder, and can act as a defense to an accusation of copyright infringement. The 4 factors to consider whether the use of a copyrighted item is fair are:
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
- The nature of the copyrighted work
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole
- The effect of the use upon the potential market for or value of the copyrighted work.
Fair use is left intentionally vague in U.S. copyright law, and there are no quantitative measures for what is acceptable within its use (e.g., how many chapters of a book can be scanned for classroom use.) Each person should use discretion for what is acceptable within fair use of their scholarship or instruction.
For more assistance with determining fair use, consult the Fair Use Evaluator by Michael Brewer and the ALA Office for Information Technology Policy. Additionally, you can also ask a copyright holder for permission to use their work, pay a copyright fee through the Copyright Clearance Center, or seek public domain or open access resources.
Intellectual works in the public domain are not copyright protected and can be used freely without seeking the permission of a copyright holder. What is currently in the public domain, however, can be difficult to determine since this status relies on several elements, such as the publication date of the work, whether its copyright renewal status, whether the creator deliberately placed the item in the public domain, etc. To assist with this determination, visit the following resources:
Public Domain Slider (Michael Brewer and the ALA Office for Information Technology Policy)
Copyright Term and the Public Domain in the United States (Cornell University Library)
Open Access and Open Education are defined by the Scholarly Publishing and Academic Resources Coalition (SPARC) as follows:
Open Access: the free, immediate, online availability of research articles coupled with the rights to use these articles fully in the digital environment. Open Access ensures that anyone can access and use these results—to turn ideas into industries and breakthroughs into better lives.
Open Education: resources, tools, and practices that are free of legal, financial, and technical barriers and can be fully used, shared, and adapted in the digital environment. Open Education maximizes the power of the Internet to make education more affordable, accessible, and effective.
Many faculty are making an effort to adopt open access resources in their classrooms to enhance accessibility for students. Open Educational Resources are teaching, learning, and research materials and are a great way for faculty to engage with open access materials.
In 2020, Congress passed the “Copyright Alternative in Small-Claims Enforcement Act,” or “CASE Act.” The CASE Act creates a non-judiciary panel called the Copyright Claims Board (CCB) that operates out of the Copyright Office. This panel decides small copyright claims and is meant to be a faster, more user-friendly process. The panel can award damages of up to $30,000 to copyright holders.
A CCB claim notice indicates a copyright holder claims you have infringed on their copyright. This does not mean you have actually infringed. You have the option to proceed with the CCB tribunal, or to opt out of the CCB process. In the latter case, the claimant would need to refile the claim in federal court to pursue action against you. If you receive a claim notice, you should immediately consult the university’s legal counsel.