Questions and Answers: Copyright and Fair Use
How do I use the Restriction Statements that accompany
the American Memory collections?
The Library of Congress assesses materials for legal considerations
prior to placing items online (see legal
assessment). The Restriction Statement that accompanies
each American Memory collection provides known information
regarding ownership of materials in the collection. If known,
we include contacts for permission. In some cases the Restriction
Statement will indicate that material in a particular collection
may be used freely; in other cases the Restriction Statement
may only be a starting point for your inquiry.
What is copyright?
Copyright refers to the author's (creators of all sorts such as writers,
photographers, artists, film producers, composers, and programmers)
exclusive right to reproduce, prepare derivative works, distribute
copies, and publicly perform and display their works. These rights
may be transferred or assigned in whole or in part in writing by the
author. Unless otherwise agreed in writing, work created by an employee
is usually owned by the employer. The U.S. Copyright Act gets its authority
from Article 1, Section
8, cl. 8 of the U.S. Constitution.
If there is no copyright notice, does that mean there is
no copyright?
The absence of a copyright notice does not mean that there is no copyright.
Copyright protection exists automatically from the moment of creation
in a tangible fixed form, which is generally considered to include electronic
form. A notice is not required to protect copyright.
When can I assume that there is no copyright protection
for a work?
Work created by employees of the federal government as a part of their
job is in the public domain, i.e., not protected by copyright. This is
why you may use American Life Histories: Manuscripts from the Federal
Writers' Project, 1936-1940, materials in American Memory without
being concerned with infringing on someone's copyright (other legal concerns
may be raised in the Restriction Statements). Remember to credit your
sources, even for government materials.
Does copyright give the owner an absolute monopoly?
Although copyright is an exclusive right - a sort of restricted monopoly
- it is limited in various respects. Authors control only rights specified
under the copyright law and may not control other uses. Copyright is
also limited by duration and, under American law, by fair use. As to duration,
copyrights do eventually expire. Where possible, the Restriction Statement
accompanying each collection notes that copyright protection has expired.
In general, copyrights last for the life of the author, plus
70 years. In some works, however, the rules for calculating
duration are complex. You should explore some of the U.S. Copyright
Office's suggested
Internet sites to learn more about calculating duration
of copyright in general. As to Fair Use, see the following
section.
Where can I go for more information on copyright?
Start with the U.S.
Copyright Office in the Library of Congress. They maintain
a list of Copyright
Information Circulars and Form Letters. Scroll to find "Fair Use." In
addition, the U.S. Copyright Office maintains a list of Internet
Resources.
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What is "fair use"?
Fair use is an exception to the exclusive protection
of copyright under American law. It permits certain limited
uses without permission from the author or owner. Depending
on the circumstances, copying may be considered "fair" for
the purpose of criticism, comment, news reporting, teaching
(including multiple copies for classroom use), scholarship
or research.
To determine whether a specific use under one of these categories
is "fair," courts are required to consider the following factors:
- 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 (is it long or short in
length, that is, are you copying the entire work, as you
might with an image, or just part as you might with a long
novel); and
- the effect of the use upon the potential market for or
value of the copyrighted work.
Keep in mind that even in an educational setting, it is not
fair use to copy for a "commercial motive" or to copy "systematically," that
is, "where the aim is to substitute for subscription or purchase." No
factor by itself will determine whether a particular use is "fair." All
four factors must be weighed together in light of the circumstances.
See the U.S. Copyright Office's Copyright
Information Circulars and Form Letters for "Circular 21-Reproductions
of Copyrighted Works by Educators and Librarians."
For classroom use, how does "fair use" apply?
The Internet magnifies the possibility for making an infinite
number of perfect copies, which changes what it means to
be "fair." Be careful when using material from the Internet;
keep in mind the four factors of the fair use test, or get
permission from the owner. The National Digital Library Program
goes to great effort to identify possible copyright owners
for items in American Memory, though we are often unable
to ascertain possible rights holders because of the age of
the materials. When known to us, we will provide that information
in the Restriction Statements accompanying the collections.
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Can you describe a few examples based on questions from
teachers who use the Learning Page?
Sure...here are a few. The general concepts discussed here
apply to student and teacher uses.
- Is there a difference in fair use guidelines for public,
non-profit, or private schools?
What's fair use in a public school is probably fair
use in a non-profit private school. However, the more
commercial a particular use is, the less likely it is
to be fair, even if it is educational. Thus, if a commercial
motive is present, say, for a private, commercial test-preparation
service, then copying is less likely to be fair despite
the underlying educational purpose.
- A teacher selects a set of 15 photos or other materials
from the American Life Histories: Manuscripts from the
Federal Writers' Project, 1936-1940, and makes 5 printed
copies of this set for small groups to use in a lesson.
Is there a limit on the number of items in a set, or the
number of copies that can be made for the lesson?
American Life Histories: Manuscripts from the Federal
Writers' Project, 1936-1940, was a government-sponsored
project. It is generally considered to be in the public
domain as work by government employees. This is also
the case for material from the Color Photographs
from the Farm Security Administration and the Office
of War Information, 1938-1944. This means that
there is no copyright protection or restriction, thus
you may copy and freely distribute any number of these
items.
Because there may be publicity or privacy rights in
such material, however, you need to make an independent
assessment of possible legal rights with the assistance
of the Restriction Statement in the collection. In this
case there is no limit on the number of permissible items
in a "set" or the number of permissible copies. Remember,
this answer is specific to the American Life Histories:
Manuscripts from the Federal Writers' Project, 1936-1940,
and Color Photographs from the Farm Security Administration
and the Office of War Information, 1938-1944. If
you think the materials might be protected by copyright,
see the Restriction Statement in each American Memory
collection.
- This lesson will be used in other sections
of the same class in the same semester. This
is still a one-time use with different students.
Is this fair?
As long as the material to be copied is
in the public domain, you can copy for one
class or many and for one or more semesters.
If you wish to use material that is NOT in
the public domain, and for which copyright
protection exists, then your copying is more
likely to be considered fair if it is spontaneous
("Gee, I saw this last night at home on my
computer and it would be great for tomorrow's
class!"). The more sections and the more
semesters you plan to copy particular materials
for, the less likely your use is to be considered
fair. If you want to use copyrighted material
repeatedly, you should obtain permission
from the copyright owner.
- The lesson will be used by different teachers
teaching the same class. Fair?
Again, the more copying that occurs, the
less likely the use is to be fair. The less
spontaneous the copying is, the less fair.
If you are making digital copies or copies
that will be available online, it will be
less likely to be fair than if you made paper
copies, given the potential impact on the
copyright owner's market.
- This lesson will be used year after year
by the same teacher at the same point in the
plan of studies for the course.
Lesson planning indicates a systematic planning
that is not terribly spontaneous and thus
less likely to be fair. If you plan to use
the same items year in, year out, think seriously
about seeking permission. Document your efforts.
You need to make an independent assessment
- the Library of Congress makes the American
Memory digitized historical collections available
for the limited purposes noted in the Restriction
Statements. We cannot and do not "warrant" that
subsequent uses are fair. Incidentally, copyright
owners may be willing to give permission
for your use without charge. Once you find
an owner, let them know what your specific
intention is (who will use it, for what,
where, when, how, why - the basics). Always
credit sources.
- This lesson will be copied for each student
in the section of the class.
If the material is in the public domain,
copy the materials for each student in the
class with no worries. If the work is copyrighted,
it is probably fair if you make paper copies
for each student in a section of a single
class for a single semester. For more on
electronic copies, see the next few situations.
- A teacher prepares a lesson for a World
Wide Web presentation using photographs and
documents from the Library of Congress (not
linking to them in American Memory).
Because the teacher is placing material
on a site where anyone can copy or download
the material, the use is less likely to be
fair than if the teacher prepares the same
lesson for a local area network, or
on a stand-alone machine. If material
is protected by copyright, it would be wise
to get permission for the World Wide Web
presentation. Always keep in mind all four
of the fair use factors in the Fair
Use section of this page.
- Students in a project-based curriculum prepare
presentations with multiple examples of their
topic. How many is too many? How much of a
text is too much?
As you know from the above examples, the
medium in which the student presents the
examples contributes to the fairness of the
use. If the examples are placed on a local
network for a short period or printed only
for class members, it may be fair, depending
on a balancing of all Fair
Use factors. It is probably not fair
to display the same material on a World Wide
Web site.
The question of how much is too much is
also hard to define. A page or two of a two
hundred page novel may be acceptable, though
if you copy a particularly significant portion,
such as the two pages that make the book
marketable (the end of a mystery, for example),
you may diminish the market value - which
would weigh heavily against one of the fair
use factors). A mere two lines from a short
poem might also be unfair for the same reason.
- A student prepares a multimedia presentation
using American Memory resources. How does a
student credit sources? Is permission to reproduce
materials needed?
Everyone who uses materials from American
Memory should credit the American Memory
collections of the Library of Congress. See Citing
Electronic Sources for suggestions. Further,
users should credit particular items and
collections which are described in Restriction
Statements within the collections. The Library
of Congress does not grant or withhold permission
to use the materials that are made available
online. You must contact the owner for any
uses that exceed the limits of fair use.
Proper credit is always an indication of
good research.
- May I link to American Memory? Do I need
permission?
If you wish to link to our site, you may
do so even without permission as long as
your link makes it clear that there is a
transition to another site, and that you
do not present the link in a way that implies
that the Library of Congress or the National
Digital Library Program is endorsing a particular
product, service, or organization. However,
the Library of Congress does like to hear
how its site is being used, so please send
an email message to the National
Digital Library Program mailbox as a
courtesy.
Copyright Guidelines
Many copyright guides are available on the Web. Several authoritative sites are linked above.
Other sites include:
Copyright with Cyberbee by Linda Joseph
http://www.cyberbee.com/copyrt.html
The site offers an overview of basic copyright information for teachers and students and includes a lesson plan, an interactive activity for students and links to additional sites.
Copyright and FairUse Guidelines for Teachers by Hall Davidson
http://www.halldavidson.net/copyright_chart.pdf
These concise guidelines are offered in an easily downloaded PDF chart.
Copyright and Fair Use in the Classroom, on the Internet, and the World Wide Web – from the University of Maryland
http://www.umuc.edu/library/copy.shtml
The site offers an excellent set of guidelines for all media types and includes practical information about seeking permissions for using the published work of others.
Permission Request Template by David Warlick, Landmark Schools Project
http://www.landmark-project.com/permission1.php
The site provides online tools for both teachers and students to generate e-mail requests to cite other’s work. |
