Introduction

Copyright rules and the University of Hawaii policy relating to copyright and duplication seem to be antithetical to a primary goal of education — access to information. It is easy to be incensed at limitations for photocopying of copyrighted documents and materials. But for another viewpoint, ask some of your colleagues who have published whether they would prefer that you copy an original or buy their book (and allow them to earn their royalty). The intent of copyright is to assure the authors of creative and other published works an incentive to produce something that won’t be stolen — the right to the fruits of their labor. We chafe when copyright interferes with the easy delivery (because it is an unauthorized duplication of an original work) of information to our students. For the UH system, the final authority (leaving the courts out of this, and providing this guide is an attempt to keep us all out of court) should be the April, 1992 UH Copyright Guidelines, which is 63 pages of explanation and examples of the application of copyright rules.

WHAT IS COPYRIGHTED?

The scope of the law is broad. It generally protects any expression recorded in any tangible form, published or unpublished, in any medium, with some exceptions noted below. The protection is automatic. A copyright notice is not necessary, but its presence is an emphatic assurance that the author intends the work to be fully protected. Unpublished works are copyrighted as well, regardless of the date of their creation.

WHAT IS NOT COPYRIGHTED?

• Federal publications, but not necessarily publications of State, Local, or Foreign Governments. If Federal publications contain “derived” material from some of these other publications, then you may not have the right to use them.
• Works published before 1/1/78 without a copyright notice. Between 1/1/78 and 3/1/89 a work without a copyright notice may be public domain, but very specific conditions apply, so see the April 1992 UH Copyright Guidelines to be sure. After 3/1/89, consider anything to be copyrighted, even if no notice is present.
• Works with an expired copyright, generally 75 years after publication or 100 years after creation may be used, unless the copyright was renewed. 75 years after the last date of publication seems to be a good guideline.
• Facts and ideas are not copyrighted, but for certain works paraphrasing, using the same plot, sequence, organization, structure, arrangement or style as a preexisting work is prohibited, whether this be a literary work, film or algorithm.

USING COPYRIGHTED WORKS

With specific exceptions, which we’ll get to later, only the copyright owner may do or authorize the following:

• Reproduce the work in any form or medium
• Prepare a work that is based on or derived from the original work in any form or medium.
• Distribute copies of the work by sale, gift, rental, lease or lending.
• Performing the work, live or by other medium.
• Displaying a work, either directly or by telecommunications.

If you don’t own the copyright, ask yourself:

1. Is the work in the public domain?
2. Do I have the owner’s permission to use it?
3. Does a legal exception apply to my proposed use?
4. Does “fair use” apply here?

If you can’t say “yes” to one of these but go ahead and use the material anyway, you are violating the copyright laws. You might say, “I’ll take the risk, they’ll never go after me,” but doing so puts the College and others employed by the College at risk. And given the legal climate these days, the risk is significant. There is a simple solution: follow the “fair use” doctrine and get permission for use of copyrighted materials.

PUBLIC DOMAIN

If the work says that it is in the public domain, then it is. A published work with a date earlier than 75 years ago is probably public domain, and in fact, some companies make a good living by republishing such works and copyrighting them in their new format.

Permission

This is a grand thing to have, and since the copyright laws have become more stringent, publishers are set up to give permission for educational use, in many cases, with a minimum of fuss, sometimes by phone using an 800 number. Writing or calling for permission certainly shows good intent after using material under the fair use doctrine, and it is the way to go if subsequent use of the material is planned. Quite often, technical publications may be used with an acknowledgement because the manufacturer who provides the material wants technicians as well educated about their products. This does vary with the manufacturer and should be checked before use.

WHAT YOUR REQUEST FOR PERMISSION SHOULD CONTAIN

1. Title, author(s), or editor(s), edition number(s)
2. Exact amount of material used, preferably including a photocopy of the material involved in the request
3. Number of copies to be made
4. Description of how the material is to be used, for what course, and the frequency of use if for more than one occasion
5. Process of duplication (photocopy, off-set, litho, ditto, etc.)

The UH Copyright Guidelines have several examples of Permission Letters for both classroom use and for republishing copyrighted materials.

LEGAL (STATUTORY) EXCEPTIONS

The owners of an authorized copy of a copyrighted work can do just about anything they want with it except for making more copies, preparing derivative works, performing any work publicly or displaying the work by telecommunication. If the work is software or a sound recording it cannot be rented for profit.

A university is covered for some activities. Libraries and archives can duplicate works for preservation, security or copy replacement and make limited copies for their library users.

Fair Use

This is the key to whether or not the use you propose for a work is legal. Although the language of the Copy Right Law (Section 107) refers to education twice, educational use of copyrighted material is not automatically fair. Educational use is only “fair use” if justified, after examination of all the facts and circumstances, in light of the four factors as specified below and the other four significant factors. A nonprofit, educational purpose addresses only the first of the four factors: the “purpose and character of use.”Of the four factors, the “market effect” is the most important. The Constitution demands economic incentives, and any unauthorized use that adversely impacts the market for the original work directly undermines the economic incentive the Constitution requires. Thus, if any use of copyrighted materials that you propose is likely to substitute for purchase, subscription, or license of the original material and thereby deprive the copyright owner of revenue, that use is likely to be unfair.The following are simplified explanations of common examples of fair use. Check the UH Copyright Guidelines for details or if you have questions.

STANDARDS FOR DETERMINING FAIR USE

The Fair Use Provision of the Copyrights Act of 1976 is found in Section 107 United States Code 17, and is intended to balance the interests of copyright owners with the needs of others who need access to copyrighted material. There are four general factors to be considered when evaluating whether material can be considered to be “Fair Use”, and four “other factors” which have been the subject of court cases:

FOUR MAIN FACTORS

1. PURPOSE AND CHARACTER OF THE USEIs the use for nonprofit, educational, or commercial use? Be aware that several courts have held that absence of financial gain is insufficient for a finding of fair use.
2. NATURE OF THE COPYRIGHTED WORKIs the work creative or informational? Special consideration is given to the distinction between the two. Duplication of materials originally developed for classroom use (creative) is less likely to be fair use than the duplication of materials prepared for public consumption.If you copy a workbook page or a chapter from a textbook you are more directly depriving the copyright holder of profits more directly than if you are copying a page from the newspaper.
3. AMOUNT, SUBSTANTIALITY, OR PORTION TO BE USED IN RELATION TO THE COPYRIGHTED WORK AS A WHOLEWhat is the amount and significance of the portion copied?
4. EFFECT OF USE ON THE POTENTIAL MARKETProbably the most important of the standards. If the copying of the copyrighted material reduces the potential market and therefore the potential sales and profit, that use is unlikely to be found a fair use.

OTHER STATUTORY FACTORS

The fair use doctrine is the first statutory version of a judicial doctrine dating back more than 100 years. Prior to 1976, fair use was a flexible common law doctrine. There is nothing in the present Fair Use doctrine that would prohibit reliance on these approaches in the future.

1. FUNCTIONAL USE TEST or substitute effect test:

To the extent that a copied work is used to substitute of a purchased copy, it is more likely to diminish the copyright owner’s profits. The more you copy the more you harm, however, to the extent that you use the material in a different way than that which it was originally intended for, the likelihood that this would be considered fair use is increased.

2. PRODUCTIVE USE TEST:

The term “productive” is used two different ways: 1) Use of a copyrighted work that creates a new work, 2) Use that produces some ultimate benefit to society. A productive use must be contrasted with a convenient use; mere convenience has never been consider adequate rationale for fair use.

3. PUBLIC INTEREST FACTOR:

Is a legitimate public interest served by the use or distribution of this copyrighted work? Do the copyrighted materials “need” to be used in providing public interest with the “fullest information available”?

4. AVAILABILITY TEST:

Is the work readily available for purchase or through normal channels? If it is not, the work is more likely to be considered as a fair use.

Copying

COPYING FOR INDIVIDUAL USE: 

Making a single copy of written material for use by an individual student or instructor without further dissemination is permissible within limits. The copy can be circulated or displayed in a classroom if returned. The general limits are single chapters of a book, a short story, essay or poem, a graphic or picture, or an article from a periodical, journal or newspaper. If you wish to copy more than that, a reasonable effort to contact the author, publisher or copyright owner needs to be made to ensure that the work is not available through commercial sources at a fair price. Document your efforts and if you can’t obtain what you need commercially, you may copy only what you need for use. If you do find a commercial source, then you can copy the original material that you have access to, as long as you destroy it when your original arrives. Repeated duplication from a periodical implies that you should subscribe.

COPYING FOR DISTRIBUTION TO STUDENTS: 

Since you would be making a number of copies instead of one, the potential for loss by a copyright holder is much greater, and the rules for this use are more strict. We all see material which would benefit our students, but in order for the use to be fair there are four requirements to meet: brevity, spontaneity, cumulative effect, and terms of copying.

Brevity means 250 words for a poem, 2,500 words for a complete prose article or 1000 words from a longer work, one illustration per book or periodical.

Spontaneity means there isn’t reasonable time to get permission before using the item for maximum educational effect. This means you can use it once. If you wish to use it again you would presumably have time to gain permission.

Cumulative effect means that you use it for one course, or use one short poem, article, story or essay and no more than two excerpts per author per term, or no more than three excerpts from a collective work or periodical (other than current newspapers), or no more than nine instances of multiple copying per course per term.

The terms of copying to satisfy are no more than one copy per student, no profit if copying costs are charged to the student, a copyright notice from the original must be included in each copy, the copies may not be used to create or replace anthologies, compilations or collective works whether the copies are made in batches or separately. Consumables such as workbooks, standardized tests, or test answer sheets must never be copied, since it is the business of the copyright owner to supply them for consumption.

For certain, if you have the time to gain permission from the copyright holder, and do not, or if you don’t meet the other three requirements, you are infringing on copyright. The UH Copyright Guidelines have several examples of what is or isn’t fair use and the rationale involved.

COPYING FOR LIBRARY RESERVE: 

This seems to be a gray area because specific guidelines haven’t been agreed upon, but the UH Copyright Guidelines suggests strongly that the “fair use” rules be applied here as well. Originals are best material to place on reserve. If permission for placing copies on reserve can be obtained, do that and comply with the copyright holder’s terms. Unless a work appears mid semester there should be enough time to get either an original or permission to use material copied from an original to place on reserve. Long distance telephone lines and “next day air” shipping means that any commercially available work is available on very short notice. The number of copies on reserve depends on the class size, number of sections or other factors that determine the demand for the material. Again, if you have made and documented reasonable efforts to obtain originals and cannot, you may be covered, but retain your documentation. Publishers will often give permission for a short duplication run of a commercially unavailable work. They want you to use their work, especially if they think you will continue to use (and buy) it once it becomes available. Again, the UH Copyright Guidelines have several examples of what is or isn’t fair use and the rationale involved.

LIBRARY PHOTOCOPYING: 

There is a special section of the copyright code that deals with the use of copyrighted works by libraries. They are governed by a “fair use” doctrine which is more demanding than that which governs individual use and they will be familiar with the provisions of the doctrine.

Users of libraries often want copies of copyrighted materials, but there are six conditions to be met. The copy must be brief, but can’t be sheet music, pictures, sculpture (don’t ask how this is done), movies, or audio-visual works other than news programs. The copy must become the property of the user. The work must be only be used for private study, scholarship or research. The library must display a copyright warning notice on the copy order form and where orders are accepted. The copy made by the library must include a copyright notice. Requests for copies of the same material must be isolated and unrelated, reproduction and distribution of multiple copies is not allowed. If a work is commercially unavailable and all efforts to get the work through commercial channels have failed (and are documented), the library may make a copy of a complete work providing that the last five conditions listed are met. The infringement liability, however, rests with the patron in this instance, not the library.

Once the library has posted the copyright warning notice at their coin operated copiers, the responsibility for copyright infringement rests with the copy machine patron. Librarians aren’t lawyers, so they won’t be able to settle “borderline” questions if you ask them. The best recourse is to look at the UH Copyright Guidelines if you have a specific question about library copying.

Types of Works

PICTORIAL WORKS: 

Pictorial works or graphics are copyright protected regardless of their medium or of the medium to which you may want to transfer them, such as digitizing a copyrighted image, which is still a reproduction. The owner of an authorized copy of a work can transfer, rent, lend, sell or give the copy away without the copyright owner’s permission. The copy can also be displayed, but additional copies cannot be made nor can the image be transmitted to another location, or be used to make derivative works.An additional complication is that copyrighted images belonging to individuals other than the copyright owner of the work which includes the images are protected. This remains the case, even if the larger work has no copyright notice. Certain images, such a signed fine arts images or other works produced in limited (200 or fewer copies) enjoy additional protection to maintain their integrity.

The general rules for fair use, i.e. brevity, spontaneity, cumulative effect and terms of copying, apply to images as well as text. Permission should be sought for any form of reproduction of a copyrighted image, even if the reproduction is an unintended result of another process, such as the capturing of the image on a video tape of a lecture where the image has been displayed with an overhead projector and is in the background behind the lecturer or is shown for illustration. Merely showing, but not copying and distributing an authorized copy of an image is no problem, as long as it is not shown, or transmitted beyond the confines of a single campus (telecourse instructors, please note). Reproduction and distribution is, and permission should be sought. Technical illustrations used for training may be approved for use by a manufacturer for inclusion in class materials with a simple acknowledgement, but permission should be obtained. Again, the UH Copyright Guidelines have several examples of what is or isn’t fair use for images and the rationale involved.

COPYRIGHTED MUSIC: 

The owner of a copyrighted music work owns the rights to the sheet music, but the owner of an authorized copy may play the copy, unless it is for public performance, but may not copy it in any medium or use it for derivative works without permission. There are guidelines for use of copying and performance of music in educational settings and the University does have blanket permission through licenses from performing rights societies for their repertoires.

The rules for copying of sheet music are very much like those for the copying and use of written or graphic works. Single copies, or edited copies for use, but not distribution of recorded works owned personally or by the University, can be made but must be retained, not distributed. Performance of music in the BMI or ASCAP repertoire, sponsored by the University, in a University facility is (probably) permissible, but the license must be checked at Procurement and Property Management Office (PPMO) to be sure that specific conditions are met. Dramatic performances of music are not permitted without a special license, obtainable through PPMO.

Library/Media Center personnel should be especially concerned with the possible duplication of entire copyrighted tapes, since that circumstance doesn’t meet the brevity test for fair use, and should warn a user who expresses the intent to copy a whole tape that such an act would be a violation. A copy of a portion of a tape or vinyl recording for educational use would probably be permissible, depending on the size of the portion, but the duplication of an entire recording would not be, and buying the work is the proper alternative. The Library/Media Center can make one circulating copy as long as the original is not circulated. Again,the UH Copyright Guidelines have several examples of what is or isn’t fair use for music and the rationale involved.

COMPUTER SOFTWARE: 

Regardless of the discussions about the validity of Software License Agreements (SLA), the University policy is that an SLA should be considered an enforceable contract. Usually one backup copy is allowable, and when that quits working, it is rendered unusable and another can be made from the archived original. Shareware may be distributed freely, but should be registered if it is useful and used. Freeware may be freely distributed. On copyrighted software the SLA should be the guideline.

University Software is that which is supplied through the University and used in University premises or on University equipment. Only employees, contractors, faculty and students are legally allowed to use University Software, which is usually limited to a single computer per original (and thus, a single backup copy). Exceptions are software which is purchased with a site license for specific number of computers, or copy protected software which is, by design, not meant to be backed up. If you are making a change to a new software package, the old one can be given away or sold, but as a package, and, to make the transition legal, the old version must be purged from the computer. The same holds true for buying an additional machine where a software package installed on the old machine cannot be installed on the new machine unless the version on the old machine is purged. The basic rule is, without a site license, the new machine needs a new software package. A single package that is used occasionally by members of a department or division could be circulated legally, as long as it is used on one machine at a time, and removed when the package goes to another University user. The library can keep an archived original and circulate a copy to University users under the same conditions. Again, the UH Copyright Guidelines have several examples of what is or isn’t fair use for software and the rationale involved.

VIDEOTAPES AND OTHER AUDIO-VISUALS: 

Playing a videotape for yourself or friends, where the pubic cannot view it is not a copyright infringement, but if it is uncontrolled and the public can see it, it is. Making a single copy for educational (not entertainment) use, for a single playing on campus, with a single repeat for reinforcement as necessary is considered “fair use”, provided the copy is erased within 45 days of the recording and the original copyright notice is retained. The tape can be reviewed for evaluation, but not replayed for students, and must, in any case, be erased before the 45 day limit. This applies to both Educational TV as well as commercial broadcasts, but this is only a guideline, and a broadcaster could ask for legal remedy even if you are following these guidelines, but isn’t likely to. Remember, repeat use of a program, if you plan to do so, should be done only after permission is gained, usually through a license agreement.

Libraries/Media Centers should follow the general guidelines for texts and other materials in terms of copies for archiving, circulation, research and other educational uses. There will be a warning label added to the tape cassette stating the restrictions for use. If the library provides machines for video tape viewing, educational use probably constitutes having an instructor or TA in the room while the tape is being viewed by students, not the public, and the viewing is used for instruction. Viewing by a single person does not appear to be a problem. Again, the UH Copyright Guidelines have several examples of what is or isn’t fair use for videotapes or movies and the rationale involved.

Permissions Revisited

Publishers understand the educational needs that instructors have and are usually pleased to grant permission for legitimate educational use of their materials. If you think that what you want to do is borderline, call them and negotiate. 800 numbers are often available to gain permission and usually the fees charged for use are nominal as long as the use doesn’t have significant impact on the publisher’s market. If you plan to write for permission, 6 to 8 weeks is a good lead time. Asking permission is a demonstration of good faith as well as being the legally correct thing to do. It might seem like a humbug, but get permission if you plan to use copyrighted materials.

If You Get Caught

Penalties can be severe. Monetary damages may be awarded, you may be responsible for attorney’s fees on both sides. And if you violate copyright while carrying out your duties as a State employee, the State is involved and responsible for your actions.If you infringe someone else’s copyright, you may be liable for monetary damages. The statute allows the copyright owner to recover not only actual losses (for example lost sales revenue), but also any profits of the infringer, as long as no monetary amount is counted twice. If actual damages and profits are small or hard to prove, the copyright holder may recover statutory damages of up to $10,000 per week infringed, or up to $50,000 per work infringed willfully. A court may also award attorney’s fees to a successful plaintiff. If the court does so, the infringer has to pay not only his own attorney’s fees for defending the suit, but also the plaintiff’s attorney’s fees for bringing the suit.

Do not, however, assume that the State will hire a lawyer to defend you, since there is a published policy against copyright infringement by State employees. You may be on your own, defending yourself at your own expense and liable for any damages. Protect yourself and do not violate the copyright laws.