These guidelines are intended to assist Wesley faculty, students and staff in determining when and how copyrighted works may properly be utilized, including under the statutory “fair use” exception in the Copyright Act. These guidelines do not constitute legal advice and are not a substitute for obtaining legal advice in circumstances where the right to use particular copyrighted material is uncertain.
The Seminary Library and its personnel are an important resource providing teaching and advice on copyright questions, including fair use issues. The Library will also assist in identifying alternative resources, when available, to resolve potential copyright concerns. The Library’s role is instructional and does not constitute legal advice.
Wesley faculty are responsible for making an informed, good faith effort to comply with the Copyright Act with respect to the preparation and distribution of course materials, whether posted to the seminary’s learning management system (e.g., Blackboard or a similar LMS) or distributed in hard copy form. This process involves the following steps:
(1) Determine whether the works you intend to use are covered by copyright. Copyright protection applies to nearly all “creative works” (including books, articles and images, among many categories of such works) first published in 1922 or later. See What Is A Copyrighted Work? below. When in doubt, you should assume that a work is covered by copyright.
(2) Determine whether you can avoid copyright issues by using internet or database links rather than posting electronic copies. Use Wesley Library’s e-resources. Is the work available through Atlas PLUS or an online subscription? Can the Library acquire an e-book version of the resource? Use the item’s permalink or durable URL so that students must access the resource in the database or subscribed service. If this can be done, it is not necessary to make a fair use assessment, as this activity is protected by the database/ subscription license. You may download a copy of the work for your own use, but do not post the item to the seminary’s LMS; instead, post the item’s URL. Do not share an item that has been illegally posted to the internet.
(3) If you intend to post to the seminary’s LMS or otherwise distribute a portion of a copyrighted work, determine whether the fair use exception applies, utilizing the Fair Use Checklist. The Copyright Act’s fair use exception permits the limited copying of copyrighted materials for educational purposes, but does not provide hard-and-fast rules for when the exception applies. Instead, each case requires deliberation with regard to four factors set forth in the Copyright Act. See Scope of the Fair Use Exception below. The Library’s Fair Use Checklist (based on a checklist prepared by Columbia University), appended to these guidelines, is a tool for helping you evaluate the fair use factors and document your informed, good faith effort to determine whether the fair use exception applies. Save a copy of the completed checklist with your own records in case questions emerge later.
(4) If the fair use exception does not apply, do not make copies of the works without written permission from the copyright holder. In most instances the copyright to a creative work is held by the work’s author, the author’s employer, or the publisher. In the event an intended use of a copyrighted work does not fall within the fair use exception it will be necessary either to obtain permission from the copyright holder to use the work, or have students purchase authorized versions of the work. A request for permission to utilize some or all of a copyrighted work should be in writing and should include both the portion of the copyrighted work sought to be used and the purpose and scope of the intended use. The copyright holder’s grant of permission should also be memorialized in writing.
(5) For any copyrighted work, follow best practices limiting use and distribution of the work. Copy only the portion of a work needed for the course. Post copyrighted material to the seminary’s LMS, rather than to a public site, so that access is restricted only to students who are registered for the course. Fair use for specific educational purposes is easier to defend when the copyrighted work is not being made available to the general public.
The Copyright Act grants certain rights to authors of creative works of original “expression” and limits the ability of others to use those works. Protected creative works include, as examples, (a) articles, books, poems, speeches, computer programs, and other written material; (b) photographs, paintings, drawings, sculptures, and other visual material; (c) motion pictures, television shows, and other audiovisual works; (d) dramatic or performance works such as plays and dance performances; (e) musical compositions and sound recordings; (f) architectural works; and (g) compilations of other works, where the selection of material in the compilation itself reflects original creative thought. Electronic versions of creative works, including without limitation materials published on the internet, are also protected by the Copyright Act.
Nearly all creative works of original expression are entitled to copyright protection. The most important exclusion is for works created by federal government employees in the scope of their official duties. Federal government material is thus not covered by copyright, although covered works do not lose copyright protection merely because the government has republished or otherwise disseminated those works.
Prior to 1989, the Copyright Act required a copyright symbol (“©”) or other copyright notice to be placed on published works in order for copyright protection to attach. From 1989 forward, copyright protection applies automatically to covered creative works regardless of whether a copyright notice is displayed.
Copyright protection is limited in time, but the time period typically is quite lengthy. As a general guide, material first published in the United States after approximately 1922 may still be covered by copyright.
Creative works as to which copyright protection does not apply or no longer applies are said to be “in the public domain” and thus can be used without restriction. As a general guide, works which may safely be deemed to be in the public domain include (a) works created by the federal government; (b) works first published in the United States prior to approximately 1922; and (c) pre-1989 published works as to which no copyright notice was attached. All other creative works of original expression should be assumed to be subject to copyright protection unless specifically determined to be in the public domain.
In general, copyright holders have the right to control use of a copyrighted work, including the right to control (a) the making of copies of the work; (b) the sale or distribution of the work; (c) the making of modifications or adaptations to the work (resulting in a “derivative work”); and (d) the display or performance of the work in public. These rights, however, are subject to express exceptions in the Copyright Act. The most important of these exceptions is the “fair use” exception.
The Copyright Act fair use exception, 17 U.S.C. § 107, states that “the fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” The statute sets forth four factors, discussed below, to be considered and “balanced” in determining whether a particular use of a copyrighted work is a permitted “fair use.” No simple “bright line” test exists to determine a permitted fair use. In the past, members of the higher education community have sought to apply approaches such as “copy no more than one chapter” or “copy no more than 10% of the work.” These approaches do not comport with the Copyright Act, have not been accepted by courts, and should not be followed by Wesley personnel. The only way correct way to determine a fair use is by evaluating all four factors identified in the Copyright Act. These factors include:
(1) “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes”
The first fair use factor explicitly contemplates and favors the use of copyrighted works for educational purposes, although not without limits. This factor also favors uses of copyrighted works deemed “transformational” in character—that is, uses that go beyond mere copying to add new or additional meaning, such as by using a quotation or other portion of a copyrighted work as a building block in a larger analysis.
(2) “the nature of the copyrighted work”
This factor considers whether the copyrighted work is published or unpublished, and whether it is primarily factual or fictional in nature. The fair use exception is more likely to apply to works that have already been published, since the use does not impact the author’s interest in controlling the first public appearance of his or her creative work. The fair use exception is also more likely to apply to the use of fact-based works, since the information they contain will be of relevance for other purposes, and less likely to apply to novels and other works that are fictional in nature.
(3) “the amount and substantiality of the portion used in relation to the copyrighted work as a whole”
As noted above, no bright line test exists for “how much” of a copyrighted work can be used consistent with the fair use exception. This factor looks both to the literal “amount” of the work used (what portion of the work as a whole), and the “substantiality of the portion used,” meaning to what extent the “heart” (key words or points) of the work has been used. The smaller the portion of the work used, and the smaller the portion of the “heart” used, the more likely the fair use exception will apply. Also of importance is whether the portion chosen is appropriately limited to what is needed for the education purpose in question.
(4) “the effect of the use upon the potential market for or value of the copyrighted work”
The fourth factor considers whether the use being made of the copyrighted work impacts the sales or other economic value of that work. Fair use is more likely to apply if the use will have little or no impact on sales of the work, or otherwise negatively affect the value of the work. Each of these four factors must be considered, and weighed together, in determining whether a particular intended use of a copyrighted work is a permitted fair use. The Library has prepared the accompanying Fair Use Checklist (based upon a checklist created by Columbia University) to assist in determining whether an intended use of a copyrighted work falls within the fair use exception.