Introduction and general guidelines

What is copyright?

In the United States, federal law establishes a copyright which grants the creator of an original work a number of exclusive rights over the work. The six exclusive rights are (in abbreviated form):

These exclusive rights are not absolute. They may be unbundled and transferred to someone else: for example, an author may sign over book printing and distribution rights to a publisher. The rights are also limited in duration and subject to a number of other exceptions. These exceptions, or limitations, permit use of a copyrighted work without the copyright holder's permission under certain conditions (see sections 107 - 122). A brief discussion of one of these limitations follows.

What is fair use?

One of the limitations on the exclusive rights of the copyright holder is found in section 107 of United States Copyright Law. Section 107 briefly defines four factors that are used in evaluating whether or not a use is Fair Use:

The law requires that all four factors must be evaluated and weighed. One of the uses specifically mentioned in the purpose clause is education: "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes." This does not mean that any use is fair as long as it is for educational purposes, as the three remaining factors must also be weighed, but education is specifically mentioned as a favored purpose.

Fair use does not have a precise definition. Some feel this is its great strength, because it leaves room for interpretation as circumstances and technologies change, while others feel the lack of specificity makes applying fair use risky or that it may lead potential fair-users to unnecessarily restrict use of a copyrighted work. Unfortunately, the only way to know for certain if a use is fair is to successfully use it as a defense in a copyright infringement lawsuit.

To guide practitioners in their work, some associations and organizations have issued fair use guidelines. Guidelines describe uses that are generally agreed to be fair. It is important to remember, however, that guidelines are not law, they are usually conservative interpretations for a specific context, and as such, may represent minimum guidelines for use. For example, if a guideline recommends using no more than 10% of a copyrighted work, it is not necessarily true that using 15% or 20% can not be fair.

How do I know if I can use someone else's work?

There are three basic strategies that may help you in determining whether or not your use is fair:

  1. Evaluate your specific use against the four fair use factors. It is a good idea to keep a record of your evaluation, whether in a simple written document or using a checklist devised for this purpose. Checklists are available from the Copyright Clearance Center, the University of Minnesota, Indiana University Purdue University Indianapolis, and others.
  2. Follow guidelines published by your professional association or society, or the association of a related professional group. Stanford University has compiled a list of copyright policies and guidelines.
  3. Consult an attorney.

Beyond Fair Use, however, are a number of other considerations. Before considering Fair Use or any other limitations, be sure that the work is still protected by copyright. A chart developed by Peter Hirtle at Cornell University explains copyright durations. There are other limitations on exclusive rights that may apply in an educational environment. Section 110 lists exemptions for face-to-face teaching and distance education. Section 108, which is currently undergoing study and may be revised, enumerates some exemptions for libraries and archives. Consult the resources section for more information about these exemptions, or visit the help page for a directory of people at Northwestern who may be able to advise you. The Association of Research Libraries also has a "Know your Copy Rights" resource that provides a good overview of the questions to ask when using copyrighted works in teaching.

How can I protect the works I create?

When U.S. Copyright Law was revised in 1976, registration and notification requirements were eliminated. Your work is automatically copyrighted as soon as you fix it in some medium (paper, computer disk, videotape, etc.). You are not required to place a copyright statement on your work or register it with the copyright office, but it is a good idea to consider doing one or both. A copyright notice advises potential users that the work is protected and identifies you as the copyright holder. Registration is required before you can bring a lawsuit against someone who has infringed on your copyrights. See the U.S. Copyright Office's Copyright Registration and Notice of Copyright pages.

Continue reading additional information for authors and creators of copyrighted works.