Frequently Asked Questions about Copyright
- Is it in the public domain if it doesn't have a copyright notice?
- Is it in the public domain if it's unpublished?
- Is it in the public domain if the creator is dead?
- Is it in the public domain if it's very old?
- Is it in the public domain if it's out of print?
- Is it as good as in the public domain if the copyright owners don't seem to mind?
- What about unpublished works created before 1964 and foreign works published between 1923 and 1964?
- If I own a copy legally, can I copy and distribute it without restriction?
- Do I have to include a copyright notice in materials that I distribute?
- Do I have to restrict access to copyrighted materials online?
- Do I have to restrict access to copyrighted materials in face-to-face instruction?
- Can I use material I get from the library's databases any way I please?
- Can I disable or get around the technological measures that prevent me from using something the way I want to?
- Are Web pages, emails, blog posts, forum or bulletin board system (BBS) messages and files that are streamed or downloaded from the Web copyright protected?
- If I didn't make the illegal copy, can I get in trouble for using it?
- Can I link to text, images, audio files, video files and other content on the Web?
- Can I embed text, images, video files or other content found on the Web so that they display, play, or can be downloaded from my page/course?
- Is it fair use if I'm using it for a noncommercial, educational, or nonprofit purpose?
- Is it fair use if I'm only using a small part of the work?
- Is it fair use if I'm using it creatively or artistically?
- Is it fair use if it's a tribute or homage?
- Is it fair use if it's a parody?
- Is it fair use if I'm only using an idea?
- Is it fair use if I give credit and cite properly?
- If I can't find the copyright owner to get permission, can I just use it anyway?
- If I can't find a legal copy, can I use an illegal copy?
- What about the TEACH Act?
- Do I own the copyright to a work that was created for me by someone else?
- Why should I put a permalink to a library article in my course, instead of uploading the PDF?
Is it in the public domain if it doesn't have a copyright notice?
Not necessarily. If it was created before 1978, it may or may not be copyrighted. You should Ask a Librarian. If it was created in 1978 or later, you should assume that it is copyrighted, whether or not it has a copyright notice.
Is it in the public domain if it's unpublished?
Not necessarily. Unpublished works are automatically copyrighted. For works created after 1978, the copyright will expire 70 years after the death of the author, or 120 years after the work's creation (if the author is anonymous or unidentifiable). Many unpublished works created before 1978 are now in the public domain. You should Ask a Librarian. If the work was created in the United States before 1923 and never subsequently published, it is now in the public domain.
Is it in the public domain if the creator is dead?
No. In the United States, works are protected for the duration of the creator's life plus 70 years.
Is it in the public domain if it's very old?
Works published in the United States before 1923 are automatically in the public domain. Works published outside the United States are subject to different and, usually, stricter rules. You should Ask a Librarian.
Is in the public domain if it's out of print?
Not necessarily. Copyright will expire 70 years after the death of the author. (For anonymously or corporate-authored works, copyright will expire 120 years after the publication date.)
Is it as good as in the public domain if the copyright owners don't seem to mind?
No. You need explicit, written permission for your specific use.
What about unpublished works created before 1964 and foreign works published between 1890 and 1964?
If I own a copy legally, can I copy and distribute it without restriction?
No. You have the right of first sale, which is limited to selling, lending, or giving away your copy, and displaying your copy in a private setting (for instance, to guests in your home). Under the doctrine of fair use, you are also entitled to make a single copy for personal use (for instance, ripping your CD so you can listen to the songs on your MP3 player).
Do I have to include a copyright notice in materials that I distribute?
Yes. When you make copyrighted material available to your students, you must include the copyright notice. For books, you should copy the copyright information on the back of the title page and attach it. Articles usually have it in the header and/or footer; if they don't, attach it. For multimedia or images, just put the copyright information (for example © ContentCorp 2011) in a caption. What's important, above all, is that you make it obvious and unmistakable that the content is copyrighted, and not to you.
Sometimes you can't find the copyright date or content owner's name in the original work. Don't guess. © Unknown 2011, or © Milla Steinmetz (date unknown) is better than misinforming your audience, and it shows a good-faith effort.
Do I have to restrict access to copyrighted materials online?
Yes. If you are using content from the Empire State College Online Library, you should link to it, so that users have to log in with their college login and password. In some cases, you may be able to embed that content, but you should only do so within the learning management system, so that users have to log in. If you have gotten permission from the copyright owner to put the content online, follow the terms set out in the license.
Do I have to restrict access to copyrighted materials in face-to-face instruction?
Yes. Only students currently enrolled in your course may have access to the copyrighted materials you are using for your course.
Can I use material I get from the library's databases any way I please?
No. If you can, it is best to link to the content. Database content is subject to copyright law and to license restrictions specified in the contract between the college and the database provider. If your use of database content is not permitted by the license with the database provider, you should simply link to the content. If you wish to embed some content from one of the databases, Ask a Librarian.
Can I disable or get around the technological measures that prevent me from using something the way I want to?
No, with very few exceptions. If you are trying to make a piece of media accessible to someone with disabilities, or if you are a faculty member who wants to create DVD clips for face-to-face classroom use, Ask a Librarian.
Are Web pages, emails, blog posts, forum or bulletin board system (BBS) messages and files that are streamed or downloaded from the Web copyright protected?
Yes. These all count as tangible media of expression.
If I didn't make the illegal copy, can I get in trouble for using it?
If you are just linking to it, you're unlikely to be prosecuted or sued, but it is a bad idea because:
- it sets a bad example
- the infringing content is very likely to disappear and then you will have broken links.
If you are showing the material in a face-to-face classroom, that is infringing and you can get in trouble.
Can I link to text, images, audio files, video files and other content on the Web?
Yes. It is legal to link to something. Make sure you are linking to a legal copy; otherwise it is likely to disappear and leave you with broken links.
Can I embed text, images, video files and other content found on the Web, so that they display, play, or can be downloaded from my page/course?
If you are talking about "embed codes" provided by YouTube, Films On Demand, or the like, that's fine. That kind of "embedding" is actually a special kind of linking.
But if you are talking about uploading the content to your webpage or course, you will need to have permission or be sure that it's fair use, public domain, etc.
If you're not sure, Ask a Librarian.
Is it fair use if I'm using it for a noncommercial, educational, or nonprofit purpose?
Not necessarily. Noncommercial, socially useful purposes such as education and commentary are favorable, but that is only one of the four factors considered in determining fair use. You also have to take into account the nature of the original work, how much of it you used and the effect your work will have on the market for the original work.
Is it fair use if I'm only using a small part of the work?
Not necessarily. "Amount and substantiality" is only one of the four factors considered in determining fair use. There is no exact amount specified by law. A few sentences or 20 seconds of content might be acceptable but, on the other hand, it might be considered infringement if it's the "core" of the work from which you are taking it.
The "De Minimis" defense says that if you take a tiny, practically unidentifiable fragment of a work accidentally or incidentally, it's fair use.
Is it fair use if I'm using it creatively or artistically?
Probably not. Fair use is more favorable toward academic, scientific and journalistic uses than toward artistic or creative ones. Artistic and creative reuse of copyrighted materials is called a "derivative work" and the copyright holder has the exclusive right to control the creation of derivative works.
Is it fair use if it's a tribute or homage?
No. Imitation may be the sincerest form of flattery, but it's also copyright infringement.
Is it fair use if it's a parody?
Probably. Parodies are derivative works, but they are generally allowable under fair use.
It's important to consider the difference between a parody and a satire. Parody uses the copyrighted material to comment on that same material. Satire uses the copyrighted material to comment on something else.
Is it fair use if I'm only using an idea?
Copying facts or ideas does not violate copyright. It may, however, be plagiarism. Also, copying a creator's unique arrangement of facts and ideas (for example, facts arranged in a chart, or an idea phrased in a certain way) may infringe on copyright. In addition, while fictional themes and basic plots (boy meets girl, girl hates boy, boy joins circus) cannot be copyrighted, settings and characters are more than mere ideas; they are protected by copyright.
Is it fair use if I give credit and cite properly?
No. You should always cite and give credit, but that's completely irrelevant to whether you're infringing on somebody's copyright.
If I can't find the copyright owner to get permission, can I just use it anyway?
Not unless you can find a way to use the material under the doctrine of fair use.
If I can't find a legal copy, can I use an illegal copy?
Whether or not your use is fair use, you should use a legally created and legally obtained copy.
What about the TEACH Act?
Empire State College is now TEACH Act compliant.
The TEACH Act applies only to multimedia posted in the learning management system (Moodle.) It does not apply to any textual materials and it does not apply on the open Web or in face-to-face situations.
TEACH Act applies to situations that are parallel to showing something in class. They are not for research, assigned readings, supplemental readings, homework, or extracurricular activities.
You can post any amount of nonfictional, nondramatic multimedia, or brief clips of fictional or dramatic multimedia. If it's from a textbook, workbook, study guide, or anything that was made for the educational market, you cannot use the TEACH Act. You must upload a legal copy that was legally obtained -- no bootlegs. And if there is a digital copy on the market, you must use that. You can only digitize your physical materials if there is no digital copy available.
You have to include the citation and copyright information with the materials, preferably in a caption.
You must not maintain any sort of library or repository of TEACH Act materials. They must be kept only inside the course, and access to them must be as limited in duration as possible. That means that, if possible, you will put them up at the beginning of a module and take them down when that module is done with. If that would interfere with how your module is organized, you can leave them up for the duration of the course, but no longer.
Do I own the copyright to a work that was created for me by someone else?
This is a "work for hire" question. In general, works created by employees as part of their employment are the copyright of their employers, unless their contract otherwise specifies.
"Generally the members of the staff of the University shall retain all rights to copyright and publish written works produced by them. However, in cases where persons are employed or directed within the scope of their employment to produce specific works subject to copyright the University shall have the right to publish such work without copyright or to copyright it in its own name. The copyright will also be subject to any contractual arrangements by the University for work in the course of which the writing was done." - SUNY Board of Trustees Regulations Title J - Patents, Inventions, and Copyright Policy
Why should I put a permalink to a library article in my course, instead of uploading the PDF?
When you want to give your learners access to an article that is available through the library, you should always link to it using a PURL or permalink. You should not upload the PDF.
Uploading the PDF constitutes making a copy, so copyright comes into play. It is very unlikely that a court would consider uploading an entire article or book chapter a fair use. Also, the TEACH act does not apply to assigned readings or research materials in online courses. So, uploading a PDF stands a very good chance of being an infringement and subject to a DMCA takedown.
On the other hand, linking to the material doesn't even come under copyright scrutiny, because you're not making a copy, you're just linking to a copy that the college has already paid for a license to use.
We are aware that, in the past, students sometimes ran into trouble trying to access library content via permalinks. Some important improvements have been made in our single sign-on, so that a student who is already logged into a course will not have to log in a second time to get to the database. It is also a good idea, if you have newly enrolled students, to get them to test that their login works with library databases early in the course, before they actually have an assignment riding on it.
Note: You will need Adobe Reader to read PDF documents. If it is not installed on your computer, download it for free from Adobe.
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