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II.  Tutorial: Using Copyrighted Works

Copyright is not a set of bright line rules and your solution may benefit most from an in-person consultation with the Director, Digital Scholarship and Publishing, NCSU Libraries (Shelby Shanks) or the Office of General Counsel (Judy Curry). In fact, copyright issues, guidelines, and interpretations are, in effect, a moving target, as case law, litigation, and copyright infringement challenges increase in frequency

Let's assume that the work you wish to use is copyrighted and not covered by any sort of license or conditions of use that you agreed to.  You have basically four legal options:

Link to the work

Fit within a specific copyright exception, like the Performance and Display exceptions [Section 110];

Fair Use (Section 107); or

Door No. 4:  Seek permission


Link when possible

Having read the preceding Copyright Basics Tutorial, you now know that you cannot copyright facts and ideas.  It follows then that an address is simply a fact; in "fact", there was actually a famous case about addresses and whether the phone company held a copyright in the white pages.   A url is like an address, just a fact.  Sp placing a url (link) on your page violates none of the copyrights of the page being linked to and is often the simplest solution.

Practice Pointer: This is not to say that there have not been lawsuits over linking but they usually arise from deep linking (skipping the ads) or framing the linked page in a misleading fashion.  However, the average link should not be problematic and does not require permission.

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Analyze whether your proposed use "fits" within a specific exception in the copyright act

The copyright act, in order to further the Constitutional mandate of promoting the progress of science and the useful arts, gives a limited monopoly to authors/creators, but puts constraints on that monopoly.  The goal is to balance the rights of the authors with the need of the public to access and build upon prior works. This balance is never an easy one and is always at risk depending on various bills sitting in Congress. One of those constraints is time - copyright does not last forever.  There are other constraints on the rights of the copyright holders, primarily in favor of educational uses, news reporting, comment, and parody but here we will discuss those most applicable to higher education.

The "specific" exceptions for teaching purposes are the performance and display exceptions found in Section 110 of the copyright act.  Section 110(1) speaks to face-to-face classroom performances and displays while Section 110(2) addresses transmissions of performances and display, such as occur in online classes or distance education.

Practice Pointer: Specific exceptions are the preferred route (to me) because if you can fit within one, you are able to avoid the uncertainties inherent in a fair use analysis.  Remember, however, that they do coexist with fair use (see below) and you can always use fair use; that is, they are not mutually exclusive.

Section 110(1) Face to Face Classroom Teaching

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 (not just for entertainment) 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.

Practice Pointer: This is a wonderful exception and educators have been using it for years, probably without knowing it.  It's important to understand, however, the difference between "perform" and "display".   "Perform" applies to showing audiovisual works, movies, music, etc.   "Display" applies to works like images, text, graphics, charts, etc. 

Additionally, Section 110(1) only authorizes the performance or display, not any accompanying reproduction of the work that might be necessary in order to perform or display it.  For that, one might need to turn to fair use.  For works found on the Web, consider accessing the work from a “live” projection of the site during class.

Section 110(2) Transmissions of Performances and Displays

Section 110(2) was amended by the TEACH Act in 2002 to account for digital distance education.  It is simply the current version of Section 110(2) and it is actually now misleading to refer to it as though it were a separate law, instead of part of copyright law. It applies when you wish to transmit a performance and/or display.  Cable TV and online courses are good examples of transmissions of copyrighted works.  It would seem logical that you should be able to transmit the same performances and displays that you were lawfully able to use in your face to face classroom.  But you can't, at least not without satisfying a list of requirements.  Even then, entire movies cannot be shown via your online class or cable TV.  These requirements are not insurmountable and NC State is one of the few institutions that has successfully figured out the most challenging requirement (the downstream controls). 

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Copyright 2008 Peggy E. Hoon