Fair Use

Under the guidelines of 17 U.S.C. Section 107, the Dick Smith Library maintains both a print and electronic reserve collection in support of Tarleton courses. The use of materials placed on reserve will be at the initiative of the faculty solely for the non-commercial, educational usage of the students. Personal copies for reserve use must be made in compliance with the four “fair use” principles:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit, educational purposes;
2. The amount and substantiality of the portion used in relation to the copyrighted work as a whole;
3. The nature of the copyrighted work; and
4. The effect of the use upon the potential market for or value of the copyrighted work.

All four factors are considered, but the last factor is the most important in determining whether a particular use is “fair.”

Public Works

Free use of materials not protected by copyright is permitted for public works. The presence or absence of a copyright notice is no longer significant when determining what is a protected copyright or a public work. Older works published without a notice may be in the public domain, but for works created after March 1, 1989, absence of a notice is non-determinative. The following guidelines may be used to determine what constitutes a public work:

1. Works that lack originality (e.g. phone books)
2. Works in the public domain (no longer protected by copyright)
3. Free ware (must be expressly stated)
4. U.S. Government works
5. Facts (e.g. Water boils at 212 degrees Fahrenheit)
6. Ideas, processes, methods, and systems described in copyrighted work that is not otherwise protected by patents

Copyright Compliance

You should obtain permission to use copyrighted material that falls outside of the fair use guidelines. For additional information and sample request letters, check out:

• Copyright Clearance Center: request permission online.
• Copyright on Campus: video from the copyright Clearance Center.
• Getting Permission: from the University of Texas.

The TEACH Act

The “Technology, Education, and Copyright Harmonization Act” (the TEACH Act) defines the terms in which copyright protected materials may be used in distance education. Additional information can be found at:

• Copyright for Libraries: the TEACH Act – from The American Library Association.
• TEACH Tools: Checklist, Guides, Vocabulary – From UNC Charlotte, creators of the original Teach Act Toolkit.
• The Teach Act  – from the Copyright Clearance Center
• The TEACH Act – from the Copyright Office
• Technology, education and copyright harmonization act best practices

Public Performance Right

What is “public performance”?

To perform or display a work “publicly” means:

• to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered;
• to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

Title 17, U.S.C., Copyrights, Section 101, Definitions

What does “home use only” mean?

In the case of motion pictures, including video recordings, and of other audiovisual works, one of the exclusive rights of the copyright owner is to perform or display the work publicly. Unless video recordings are sold or rented with public performance rights or are licensed for public performance, they should be considered “home use only” and should be restricted to private showings in the home to a “normal circle of a family and its social acquaintances.” The only exception to this is the “face-to-face teaching exemption.”

Private copies of films, whether purchased or rented do not carry public performance rights. Even films shown for free and for educational purposes (to educate the campus community about a political or other issue, for example) usually require you to obtain a Public Performance License if they are screened outside the context of a specific course.What is the “face-to-face teaching exemption”?

The copyright law contains an exception which allows the lawful use of “home use only” video recordings for public performance or display without the permission of the copyright owner. Section 110 (1) of the law appears to allow the classroom use of video programs that have not been cleared for public performance if, and only if, all of the conditions set forth by the law are met.

• The class is taught at a non-profit educational institution;
• The film/audiovisual material is shown in a face-to-face teaching situation;
• The film/audiovisual material is related to the course;
• The film/audiovisual material is shown in a classroom or other designated teaching space; and
• The film/audiovisual material is acquired legally (e.g. purchased, rented, or borrowed from the library).

The face-to-face teaching exemption does not apply to distance education?

TEACH Act provide a more limited right to use copyrighted material in distance education by accredited nonprofit institutions providing certain conditions have been met. The law permits the performance of non-dramatic literary and musical works and “reasonable and limited portions” of dramatic and audiovisual works “in an amount comparable to that which is typically displayed in the course of a live session.” Educational materials marketed as “mediated instructional activities transmitted via digital network” may not be used.

In order to take advantage of these exemptions there are many requirements including:

• Access must be limited to enrolled students within class sessions;
• Technological protection measures must be put in place to prevent recipients from further distributing the works; and
• Institutions must institute copyright policies, provide information on copyright compliance, and provide “notice to students that materials used in connection with the course may be subject to copyright protection.”

The TEACH Act was enacted in October, 2002, and is a completely revised version of Section 110(2) of the U.S. Copyright Act. It should be noted that the TEACH Act does not restrict the law of fair use, which may allow performances beyond those allowed by the TEACH Act.What are some of the ways to find out if a video recording has public performance rights or home use rights?

• Determine what rights are attached to a video recording at the time it is purchased or acquired, and document that information. Know that the video recording is a legal copy and know if the source of purchase or acquisition has the right to grant or convey public performance rights or not.
• Look for rights information on the video label, container, or on the screen. Video recordings with “home use only” rights usually, but not always, have statements indicating home use. Do not assume that a video recording has public performance rights if “home use” or wording to that effect is not indicated, however. Video recordings with public performance rights rarely have that information specifically stated.
• Contact the copyright owner or the owner’s authorized representative for rights information, such as one of the performing rights societies: If the rights cannot be determined, it is advisable to assume that a video recording does not have public performance rights.
• The Federal Copyright Act (Title 17 of the United States Code) governs how copyrighted materials, such as videos, may be used.
• Neither the rental nor purchase of a videocassette/DVD carries with it the right to show the tape outside of the home. No license is require to view a videotape inside the home by a family or social acquaintances, and home videocassettes may also be shown, without a license, in certain narrowly defined face-to-face teaching activities (Federal Copyright Act, Title 17, section 110).

Digital delivery in the classroom: American Library Association document created to clarify guidelines for performance of or showing films in the classroom

Other Web Sites

• ALA Copyright Tools: The home of the Exceptions for Instructors eTool also includes the Public Domain Slider and the Section 108 Spinner.
• American Society of Composers, Authors and Publishers (ASCAP): Licenses the right to perform songs and musical works created and owned by the songwriters, composers, lyricists and music publishers who are ASCAP members and also those members of foreign performing rights organizations who are represented by ASCAP in the United States.
• ARL Myths & Misconceptions in Fair Use from Center for Social Media on Vimeo.
• Broadcast Music, Inc: Represents over 350,000 creators of music, the songwriters, composers and publishers of more than 6.5 million musical works.
• Copyright and Fair Use: A guide developed by Stanford University Libraries.
• Copyright and Primary Sources: This informative resource from the Library of Congress is structured as an easy to read question and answer format.
• Copyright Crash Course: An excellent site from the University of Texas, Office of General Counsel.
• Copyright for Libraries: ALA Resources: This libguide from ALA includes books on copyright information for K-12 librarians and additional resources about copyright.
• Copyright for Teachers: From Auburn University, this is a concise overview of copyright law for teachers and instructors.
• Code of Best Practice in Fair Use: Developed by ARL.org
• Copyright on Campus: Video from the Copyright Clearance Center.
• Criterion Pictures USA, Inc.: A supplier of rental and licensed non-theatrical feature entertainment movies which are licensed for public performance in the United States.
• Exceptions for Instructors eTool: Provides a way to think about if your intended use follows under educational use of copyrighted material under the U.S. Copyright Code.
• Fair Use and Other Educational Uses: From the University of Chicago’s Copyright Information Center, this resource provides a Fair Use Checklist and a rules of thumb for determining if your use can be deemed “fair use.”
• Fair Use Evaluator: From Michael Brewer and the ALA Office for Information Technology Policy, this tool can be useful in determining if a work can be used under the Fair Use Doctrine.
• Kino Lorber: Founded in 2009 is a leader in distributing Art-house and International films.
• Milestone Film & Video: Distributors of films of enduring artistry from both yesterday and today. Their collection ranges from the earliest days of the cinema, to the golden age of the silent films, to the postwar foreign film renaissance, to brand-new American independent features, documentaries and foreign films.
• Motion Picture Licensing Corporation: An independent copyright licensing agency that provide the Umbrella License® to ensure copyright compliance for the public performance of motion pictures.
• The Educator’s Guide to Copyright and Fair Use: This five-part series from education world includes a section on district liability and teaching responsibility.
• Swank Motion Pictures, Inc.: Founded in 1937, is the major non-theatrical movie distributor and public performance licensing agent in venues where feature movies are shown publicly.
• U.S. Copyright Office, Library of Congress: Includes text of new copyright law and FAQ.
• Using Copyrighted Materials – A copyright guide developed by Baylor University for instructors/staff