College of DuPage Library

Introduction to the Checklist

The Fair Use Checklist and variations on it have been widely used for many years to help educators, librarians, lawyers, and many other users of copyrighted works determine whether their activities are within the limits of fair use under U.S. copyright law (Section 107 of the U.S. Copyright Act). Fair use is determined by a balanced application of four factors set forth in the statute: (1) the purpose of the use; (2) the nature of the work used; (3) the amount and substantiality of the work used; and (4) the effect of the use upon the potential market for or value of the work used. Those factors form the structure of this checklist. Congress and courts have offered some insights into the specific meaning of the factors, and those interpretations are reflected in the details of this form.

Benefits of the Checklist

A proper use of this checklist should serve two purposes. First, it should help you to focus on factual circumstances that are important in your evaluation of fair use. The meaning and scope of fair use depends on the particular facts of a given situation, and changing one or more facts may alter the analysis. Second, the checklist can provide an important mechanism to document your decision-making process. Maintaining a record of your fair use analysis can be critical for establishing good faith; consider adding to the checklist the current date and notes about your project. Keep completed checklists on file for future reference.

The Checklist as Roadmap

As you use the checklist and apply it to your situations, you are likely to check more than one box in each column and even check boxes across columns. Some checked boxes will favor fair use and others may oppose fair use. A key issue is whether you are acting reasonably in checking any given box, with the ultimate question being whether the cumulative weight of the factors favors or turns you away from fair use. This is not an exercise in simply checking and counting boxes. Instead, you need to consider the relative persuasive strength of the circumstances and if the overall conditions lean most convincingly for or against fair use. Because you are most familiar with your project, you are probably best positioned to evaluate the facts and make the decision.

PDF Fair Use Checklist

Identifying the Copyright Owner | Fees | Licensing Agencies | Permission Letters | Sample Permission Letter

Identifying the Copyright Owner

Many publishers, authors, and artists have licensing agencies handle permissions for them, so a good place to start is with one of those agencies.

It may be necessary or desirable to contact the copyright owner directly; that is usually the person or organization named in the copyright notice.

If they do not own the copyright, they should be able to refer you to the proper resource. Copyrights may also be transferred to others or perhaps the copyright is now owned by heirs. The Copyright Office maintains an online, searchable database of materials registered since January 1978. All formats are available.

Stanford University maintains the Copyright Renewal Database. "This database makes searchable the copyright renewal records received by the US Copyright Office between 1950 and 1993 for books published in the US between 1923 and 1963." The database contains only book renewals. This time period is one of the most difficult in determining whether a copyrighted book passed into public domain by not having the copyright renewed.

See "Locating Copyright Holders" by Lloyd J. Jassin for some other suggestions.

Fees

Fees can range from the nominal to expensive.

Licensing Agencies

Many copyright owners have licensing agencies handle copyright permissions for them. They often are more expedient in replying. A number of these agencies are listed below. They will usually charge a fee for their services. Sometimes the copyright owner will give the same permission without a cost, but it may take longer.

Some Licensing Agencies:

Permission Letters

The letter, on letterhead, should include:

• A complete description of the material to be used including author, title, editor, compiler, translator, and edition.
• The exact portion of the material, pages, and a photocopy if possible
• A description of how it will be used, including how many times, the number of people it will be distributed to, under what conditions (i.e. on or off campus, online course...)
• How the material will be reproduced (photocopy, off-set, digitized, etc.)
• A place for the recipient to sign to indicate that permission has been granted.

Remember that a non-response (silence) is not permission. If you receive oral permission, make sure you document the conversation and follow up with a letter.

Sample Permission Letter

Permissions Department
Publisher
Town, ST 12345

Month, Day, Year

Dear Sir or Madam:

I am writing to ask your permission to copy the following for classroom use next quarter September 2001:

Author: John Smith
Book Title: The Life of John Smith, 3rd ed., 1982 (out of print)
Copyright: 1979, 1982
Pages: 23-35 of Chapter 10 "Life Abroad" (photocopy enclosed).
Number of Copies: 60 (3 sections of History 256, U. S. History to 1865)
Distribution: Supplied to students as free handout fall quarter 2001
Type of reprint: photocopy

Enclosed please find a self addressed, stamped envelope for your convenience in returning this signed permission.

If you do not solely control copyright of the requested material, I would appreciate any information you can provide about the copyright owners, including most recent addresses if available.

Sincerely,

Bob Jones
Professor
College of DuPage
Glen Ellyn, IL 60137

Please initial any statement that applies:

• I hereby represent that I have the authority to grant the permission requested herein.
• I am the sole owner/author of the work.

Author or company authorized signature _________________________
Date _______________________

If it's not in the public domain and not covered by guidelines?

If the work you want to use is not in the public domain and is not covered by the C.O.D. guidelines, you may apply the principle of "fair use" to see if it is permissible to use it.

Fair use provides educators, among others, with the right to use a certain portion of copyrighted acts under certain conditions. Many mistakenly think of fair use as an educational exemption that would allow unlimited use of any amount of a copyrighted work, so long as it is used in an educational setting. That is simply not the case.

Section 107 is a broad and flexible listing of exceptions that may constitute fair use and may be applied to any of the exclusive rights granted to the copyright owners. Other exemptions, listed below, are much more specific. Only exemptions particularly relevant to educational settings are included here. See Title 17 of the U.S. Code for other exemptions

§ 107 Limitation on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include --

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

The fact that a work is unpublished shall not in itself bar a finding of fair use if such finding is made upon consideration of all the above factors. (17 U.S.C. Section 107)

If you are using fair use as the reason you are making and using a copy keep a record of your reasoning.

If the work you wish to use is not in the public domain, is not covered by the guidelines, and is not "exempted" under fair use, you must get permission before you reproduce, distribute, perform, or prepare derivative works. Proceed to Step Four: Permission.

If the work is not in the public domain, are there guidelines for your intended use?

Classroom Use

Print

Single Copies
You may make a single copy for yourself to be used for scholarly research, classroom preparation, or teaching. This might consist of

• A chapter from a book
• An article from a periodical or newspaper
• A short story, short essay or short poem, whether or not from a collective work
• A chart, graph, diagram, drawing, cartoon or picture from a book, periodical, or newspaper.

Note the stated limits on the amount of material you may copy.

Multiple Copies
You may make multiple copies to be distributed to your students (one per student) if

• The copying meets the tests of brevity and spontaneity as defined below; and,
• Each copy includes a notice of copyright; and,
• Meets the cumulative effect test as defined below.

Brevity:
◊ Poetry: One complete poem if less than 250 words and if printed on not more than two pages or an excerpt of not more than 250 words from a longer poem.
◊ Prose: One complete chapter, article, story, or essay.
◊ Illustration: One chart, graph, diagram, drawing, cartoon, or picture per book or per periodical issue.

Spontaneity
◊ The copying is at the inspiration of the instructor, and
◊ There is no time to ask for permission.

Cumulative Effect
◊ The copying of the material is for your course only.
◊ There are no more than nine instances of multiple copying for one course during one class term.
◊ The cumulative effect limitations do not apply to current news periodicals and newspapers and current news sections of other periodical.
◊ You may not collect the copies from the students and use them again the next session.
◊ You may not copy the same pieces again without obtaining permission.
◊ You may not charge the students for the copies.
◊ You may not make and use multiple copies to create, replace or substitute for anthologies, compilations or collective works without permission. If you need to create a course pack of collected works, contact the bookstore.
◊ You may not copy materials meant to be consumable, such as worksheets, unless permission has been obtained.

Video
You may show any purchased video, including feature films, in their entirety so long as:

• It is part of the face to face teaching activities
• It is used in a non-profit educational institution
• It takes place in a classroom or other place of instruction
• You use a lawfully made copy
• It is a regular part of the instruction and is directly related to the teaching content
• The use has not been restricted by a license.

You may tape programs off air and show them in your classroom to a regularly scheduled class

• Once within the first 10 instructional days of the recording, unless reinforcement is necessary and then they may be shown one additional time
• If the copyright statement is present. After 10 days you may keep the program for up to 45 days for review purposes, but it may not be used again in the classroom. It must be destroyed after 45 days.

You may not keep a program recorded off air and show it again in subsequent terms.

Others Visuals
You may display any photo, chart, work of art, etc. so long as

• It is in the course of face-to-face teaching activities
• Is in a nonprofit educational institution
• Takes place in a classroom or similar place devoted to instruction
• Is a lawfully made copy.
• If the item you are showing is a copy rather than the original, you should adhere to the limits listed above under print-single copies.

Performances
You may perform an entire work in the classroom as long as

• It is in the course of face-to-face teaching activities
• Is in a nonprofit educational institution
• Takes place in a classroom or similar place devoted to instruction
• Is a lawfully made copy.
• This includes pieces of music, readings from plays, poems, or works of fiction. Works may be actually performed or may be play backs.
• If you are handing out materials though, you must adhere to the guidelines for print materials above.

Non-classroom Use

• You may not make multiple copies for a meeting without obtaining permission.
• You may not show or perform a dramatic work without obtaining permission. This includes: showing feature films; readings or performances of poetry, plays, short stories, or other pieces of fiction; or performing musicals, operas, or operettas.
• You may only show copyrighted films in a non-classroom setting, i.e. clubs, organizations, or other extra-curricular settings, if the film is in the public domain, public performance rights were purchased with the film, permission from the copyright owner has been obtained, or a public performance license has been purchased for the showing.
• You may show or perform a non-dramatic work
• If the performance is not broadcast.
• The performers, organizers or promoters are not compensated.
• There is no admission charge.
• The copyright owner does not object in writing at least seven days before the performance.

Library Reserves

• You may place Library materials from any of the circulating collections or personal items on reserve.
• You may place copies of items on reserve if they fit into the following guidelines
• Only one copy of each title may be placed on reserve per section (approximately 1 for every 25 students).
• Each copy must be lawfully made and contain the original copyright notice, unless one is not available.
• Copying must be limited to one item per source. This could be one article per periodical issue, one poem from a book, or one chapter from a book.
• The number of different items must be reasonable when compared to the amount of reading a student is required to do. In other words, the professor cannot use photocopies to "create" the text for the course.
• You may not place a copy on reserve for more than one term without obtaining copyright permission.
• Your reading may be available electronically if
• It is available through one of the Library databases.
• It is a freely available web site.
• The Library can make a digitized copy of the reading.

But, if a digitized copy is made, it can only remain on reserves for one term unless copyright permission can be obtained.

More information on Library reserves may be found on the Library's Website or speak with your librarian.

Online Courses / Distance Learning

Print

• You may post
• Your lecture notes
• Your course syllabi/reading lists
• The problem sets you've developed for your courses
• The tests you've created for your courses
• Most publications of the US Government
• Works in the Public Domain unless you have incorporated copyrighted material into them.
• You may link to another web page unless that site has restrictions on linking.
• You may link to an article in the Library databases so long as the student is directed through the Library's proxy server. (0-lrc.cod.edu must be embedded in the URL). Check with your librarian for more information.
• You may not save a copyrighted work and repost it in your course, except as allowed under the TEACH Act.
• You may ask the Library to include a copyrighted work in Electronic Reserves. The same restrictions apply as for print reserves.

Display and Performance

Online courses do not have the same rights as face to face courses. There are however certain limited rights under the TEACH Act. The institution and the instructor must meet a set of criteria before these rights can be exercised.
You may digitize and display:

• Performances of non dramatic literary works (non-fiction)
• Performances of non dramatic musical works (not opera or musicals)
• Performances of any other work, including dramatic works and audiovisual works, but only in “reasonable and limited portions”
• Any work “in an amount comparable to that which is typically displayed in the course of a live classroom session.”
• Unless That material is already available in a format suitable for digital transmission
• Or if the copy was not lawfully made.

Personal Web Pages

You may post:

• Your lecture notes
• Your course syllabi/reading lists
• The problem sets you've developed for your courses
• The tests you've created for your courses
• Most publications of the US Government
• Works in the Public Domain (Unless you have incorporated copyrighted material into them.)

You may link to another web page unless that site has restrictions on linking.

You may link to an article in the Library databases so long as the student is directed through the Library's proxy server. (0-lrc.cod.edu must be embedded in the URL). Check with your librarian for more information.

You may not save a copyrighted work and repost it on your page.

Multimedia Development

Your students may incorporate another's work into their multimedia production and perform or display them for academic purposes.

Your students may not post them on a publicly available website or otherwise distribute them.

You may incorporate another's work into multimedia productions to produce curriculum materials.

You may make these available to students in distance learning so long as it is restricted to only those students.

You may use the work for educational purposes for two consecutive years, after which time copyright permission must be obtained.

You may also demonstrate your multimedia productions at professional meetings and may keep a copy for your portfolio.

There are very specific limits of the amounts.

• Motion media (video, etc.) -- up to 10% or three minutes, whichever is less.
• Text -- up to 10% or 1,000 words, whichever is less.
• Poems -- up to 250 words. Only three poems per poet and no more than five poems from an anthology.
• Music -- up to 10% or 30 seconds, whichever is less.
• Photos or images -- up to 5 works from one author and up to 10% or 15 works, whichever is less, from a collection.
• Database information -- up to 10% or 2,500 fields or cell entries, whichever is less.

If these guidelines for specific uses did not address your situation, proceed to Step Three: Works not in the Public Domain and not Covered Above.

Is the item in the public domain?

Works in the public domain may be copied, republished, or otherwise used without worrying about copyright infringement.

Works enter the public domain in several ways:

• When the copyright expires
• For works created on or after January 1, 1978, copyright protection lasts for the life of the author, or last surviving author, plus 70 years. Copyright of a work by an anonymous author or in a "work for hire" is 95 years from date of publication or 120 years from date of creation, whichever is shorter.
• There are two very useful charts on when materials pass into the public domain. One was done by Lolly Gasaway of the University of North Carolina. The other one is provided courtesy of Peter B. Hirtle from the Cornell Copyright Information Center.
• The American Library Association has commissioned this online public domain tool. It works best when applied to print resources. Other formats often have several overlapping copyright holders.

• If a person has placed it in the public domain
• Sometimes authors will place their work in the public domain to be freely used by all. When they do, they usually place certain restrictions on the use. See below for examples where certain permissions have been granted.
• "Chart may be freely duplicated or linked to for nonprofit purposes. No permission needed. Please include web address on all reproductions of chart so recipients know where to find any updates." (From When U.S. Works Pass Into The Public Domain by Lolly Gasoway.)
• "...you may wish to develop your own resources using material from our catalogue. Images may be freely used (with acknowledgement) for non-profit educational purposes."
• If it does not qualify for copyright protection
• Works which lack originality do not qualify for copyright protection. This would include titles, facts, ideas, reproductions of common geometrical figures, listing of ingredients, scientific charts, and so on.
• Works not in a fixed format, such as unrecorded improvised speeches or performances, do not qualify for copyright protection.
• Works created by the federal government do not qualify for copyright protection. Although, works funded by the federal government may.

For more information check out the Library's page on Copyright Law.

If you determine that the work you want to use is in the public domain, use it. If not proceed to

The copyright law of the United States (Title 17, United States Code) provides certain legal protections for authors of original works. Copyright protection begins the moment the work is created. The work does not have to be published in order to be protected, nor does it need to have the copyright symbol (©). Registering the work is also not required, although doing so does offer the author additional advantages should there be a lawsuit.

The copyright law grants a copyright owner the exclusive right to:

• Reproduce copies of the work.
• Prepare derivative works based on the copyrighted work.
• Distribute copies of the work by sale, rental, lease, or lending or by electronic means.
• Publicly perform literary, musical, dramatic or choreographic works, pantomimes, and motion pictures and other audiovisual works.
• Publicly display literary, musical, dramatic or choreographic works, pantomimes and pictorial, graphic or sculptural works, including individual motion picture or audiovisual images.
• Publicly perform copyrighted sound recordings by means of a digital audio transmission.

These rights are however subject to certain exemptions or exclusions and to the principle of "fair use".

Compliance with copyright laws is expected of all members of the College community. The College is also committed to exercising the rights accorded to users of copyrighted works under the “fair use” provision of federal copyright laws.

Remember, there are other laws and conditions that may restrict your ability to legally use someone else's materials such as, patent or trademark laws, licensing, "moral rights", or conditions imposed by the author among others.

The College of DuPage Library provides these guidelines for the C.O.D. community, including faculty, staff, administrators, students, and volunteers, to address the use of copyrighted material.
Remember that these are guidelines, not the law itself. You may also wish to refer to the C.O.D. Board Policy 15-190 and Procedures.

For more information contact the Library's Copyright Liaison

Works enter the public domain in several ways:

• When the copyright expires
• If a person has placed it in the public domain
• If it does not qualify for copyright protection
• Works in the public domain may be copied, republished, or otherwise used without worrying about copyright infringement.

Stanford University maintains the Copyright Renewal Database. "This database makes searchable the copyright renewal records received by the US Copyright Office between 1950 and 1993 for books published in the US between 1923 and 1963." The database contains only book renewals. This time period is one of the most difficult in determining whether a copyrighted book passed into public domain by not having the copyright renewed.

Fair Use Basics | Library Rights | First Sale Doctrine| Classroom Showings | Computer Programs | Architectural Works

Fair Use Basics

The doctrine of fair use provides educators, among others, with the right to use a certain portion of copyrighted acts under certain conditions. Many mistakenly think of fair use as an educational exemption that would allow unlimited use of any amount of a copyrighted work, so long as it is used in an educational setting. That is simply not the case. Section 107 is a broad and flexible listing of exceptions that may constitute fair use and may be applied to any of the exclusive rights granted to the copyright owners. Other exemptions, listed below, are much more specific. Only exemptions particularly relevant to educational settings are included here. See Title 17 of the U.S. Code for other exemptions

§ 107 Limitation on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

The fact that a work is unpublished shall not in itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
(17 U.S.C. Section 107)
Note that not all four factors need to be met, nor does any one factor have more weight than another: each case is decided upon its own set of conditions.

Because the law is rather vague in defining amounts and conditions, representatives from the Ad Hoc Committee of Educational Institutions and Organizations on Copyright Law Revision and from the Authors League of America, Inc., and the Association of American Publishers, Inc agreed to certain guidelines that apply to fair use reproduction of books and periodicals in an educational setting. Since then, guidelines for other formats have also been developed.

Library Rights

Section 108 allows libraries that are open to the public to make copies of certain types of works for specific purposes such as preservation, private study, and interlibrary loan. (See the interlibrary loan guidelines.)

Section 108 does not allow libraries to copy musical works, images, art or sculpture, motion pictures or videos, or other audiovisual works, except audiovisuals of the news. It also does not allow systematic copying or multiple copies, except as allowed for preservation.

NOTE: Section 108 was amended in late 1998 by the Digital Millennium Copyright Act, Pub. L. 105-304, 112 Stat. 2860, and the Sonny Bono Term Extension Act, Pub.L. 105-298, 112 Stat. 2827.

§ 108. Limitations on exclusive rights: Reproduction by libraries and archives

(a) Except as otherwise provided in this title and notwithstanding the provisions of section 106, it is not an infringement of copyright for a library or archives, or any of its employees acting within the scope of their employment, to reproduce no more than one copy or phonorecord of a work, except as provided in subsections (b) and (c) or to distribute such copy or phonorecord, under the conditions specified by this section, if–

(1) the reproduction or distribution is made without any purpose of direct or indirect commercial advantage;
(2) the collections of the library or archives are (i) open to the public, or (ii) available not only to researchers affiliated with the library or archives or with the institution of which it is a part, but also to other persons doing research in a specialized field; and
(3) the reproduction or distribution of the work includes a notice of copyright that appears on the copy or phonorecord that is reproduced under the provisions of this section, or includes a legend stating that the work may be protected by copyright if no such notice can be found on the copy or phonorecord that is reproduced under the provisions of this section.

(b) The rights of reproduction and distribution under this section apply to three copies or phonorecords of an unpublished work duplicated solely for purposes of preservation and security or for deposit for research use in another library or archives of the type described by clause (2) of subsection (a), if–

(1) the copy or phonorecord reproduced is currently in the collections of the library or archives; and
(2) any such copy or phonorecord that is reproduced in digital format is not otherwise distributed in that format and is not made available to the public in that format outside the premises of the library or archives.

(c) The right of reproduction under this section applies to three copies or phonorecords of a published work duplicated solely for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost, or stolen, or if the existing format in which the work is stored has become obsolete, if–

(1) the library or archives has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price; and
(2) any such copy or phonorecord that is reproduced in digital format is not made available to the public in that format outside the premises of the library or archives in lawful possession of such copy. For purposes of this subsection, a format shall be considered obsolete if the machine or device necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.

(d) The rights of reproduction and distribution under this section apply to a copy, made from the collection of a library or archives where the user makes his or her request or from that of another library or archives, of no more than one article or other contribution to a copyrighted collection or periodical issue, or to a copy or phonorecord of a small part of any other copyrighted work, if–

(1) the copy or phonorecord becomes the property of the user, and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research; and
(2) the library or archives displays prominently, at the place where orders are accepted, and includes on its order form, a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation.

(e) The rights of reproduction and distribution under this section apply to the entire work, or to a substantial part of it, made from the collection of a library or archives where the user makes his or her request or from that of another library or archives, if the library or archives has first determined, on the basis of a reasonable investigation, that a copy or phonorecord of the copyrighted work cannot be obtained at a fair price, if–

(1) the copy or phonorecord becomes the property of the user, and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research; and
(2) the library or archives displays prominently, at the place where orders are accepted, and includes on its order form, a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation.

(f) Nothing in this section–

(1) shall be construed to impose liability for copyright infringement upon a library or archives or its employees for the unsupervised use of reproducing equipment located on its premises: Provided, That such equipment displays a notice that the making of a copy may be subject to the copyright law;
(2) excuses a person who uses such reproducing equipment or who requests a copy or phonorecord under subsection (d) from liability for copyright infringement for any such act, or for any later use of such copy or phonorecord; if it exceeds fair use as provided by section 107;
(3) shall be construed to limit the reproduction and distribution by lending of a limited number of copies and excerpts by a library or archives of an audiovisual news program, subject to clauses (1), (2), and (3) of subsection (a); or
(4) in any way affects the right of fair use as provided by section 107, or any contractual obligations assumed at any time by the library or archives when it obtained a copy or phonorecord of a work in its collections.

(g) The rights of reproduction and distribution under this section extend to the isolated and unrelated reproduction or distribution of a single copy or phonorecord of the same material on separate occasions, but do not extend to cases where the library or archives, or its employee–

(1) is aware or has substantial reason to believe that it is engaging in the related or concerted reproduction or distribution of multiple copies or phonorecords of the same material, whether made on one occasion or over a period of time, and whether intended for aggregate use by one or more individuals or for separate use by the individual members of a group; or
(2) engages in the systematic reproduction or distribution of single or multiple copies or phonorecords of material described in subsection (d):
Provided, That nothing in this clause prevents a library or archives from participating in interlibrary arrangements that do not have, as their purpose or effect, that the library or archives receiving such copies or phonorecords for distribution does so in such aggregate quantities as to substitute for a subscription to or purchase of such work.
(h)

(1) For purposes of this section, during the last 20 years of any term of copyright of a published work, a library or archives, including a nonprofit educational institution that functions as such, may reproduce, distribute, display, or perform in facsimile or digital form a copy or phonorecord of such work, or portions thereof, for purposes of preservation, scholarship, or research, if such library or archives has first determined, on the basis of a reasonable investigation, that none of the conditions set forth in subparagraphs (A), (B), and (C) of paragraph (2) apply.
(2) No reproduction, distribution, display, or performance is authorized under this subsection if–

(A) the work is subject to normal commercial exploitation;
(B) a copy or phonorecord of the work can be obtained at a reasonable price; or
(C) the copyright owner or its agent provides notice pursuant to regulations promulgated by the Register of Copyrights that either of the conditions set forth in subparagraphs (A) and (B) applies.

(3) The exemption provided in this subsection does not apply to any subsequent uses by users other than such library or archives.

(i) The rights of reproduction and distribution under this section do not apply to a musical work, a pictorial, graphic or sculptural work, or a motion picture or other audiovisual work other than an audiovisual work dealing with news, except that no such limitation shall apply with respect to rights granted by subsections (b) and (c), or with respect to pictorial or graphic works published as illustrations, diagrams, or similar adjuncts to works of which copies are reproduced or distributed in accordance with subsections (d) and (e).

First Sale Doctrine

Section 109 (a) contains the first sale doctrine. This allows the owner of a lawfully made copy of a work to in turn pass it on to others through sale, rental, loan, etc. Section 109 (c) provides exception for public display. This section allows art museums to display works of art or bookstores or libraries to display books. There would be no used bookstores without this exemption.

§ 109. Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord

(a) Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord. Notwithstanding the preceding sentence, copies or phonorecords of works subject to restored copyright under section 104A that are manufactured before the date of restoration of copyright or, with respect to reliance parties, before publication or service of notice under section 104A(e), may be sold or otherwise disposed of without the authorization of the owner of the restored copyright for purposes of direct or indirect commercial advantage only during the 12-month period beginning on—

(1) the date of the publication in the Federal Register of the notice of intent filed with the Copyright Office under section 104A(d)(2)(A), or
(2) the date of the receipt of actual notice served under section 104A(d)(2)(B), whichever occurs first.

(b)

(1)

(A) Notwithstanding the provisions of subsection (a), unless authorized by the owners of copyright in the sound recording or the owner of copyright in a computer program (including any tape, disk, or other medium embodying such program), and in the case of a sound recording in the musical works embodied therein, neither the owner of a particular phonorecord nor any person in possession of a particular copy of a computer program (including any tape, disk, or other medium embodying such program), may, for the purposes of direct or indirect commercial advantage, dispose of, or authorize the disposal of, the possession of that phonorecord or computer program (including any tape, disk, or other medium embodying such program) by rental, lease, or lending, or by any other act or practice in the nature of rental, lease, or lending. Nothing in the preceding sentence shall apply to the rental, lease, or lending of a phonorecord for nonprofit purposes by a nonprofit library or nonprofit educational institution. The transfer of possession of a lawfully made copy of a computer program by a nonprofit educational institution to another nonprofit educational institution or to faculty, staff, and students does not constitute rental, lease, or lending for direct or indirect commercial purposes under this subsection.
(B) This subsection does not apply to-

(i) a computer program which is embodied in a machine or product and which cannot be copied during the ordinary operation or use of the machine or product; or
(ii) a computer program embodied in or used in conjunction with a limited purpose computer that is designed for playing video games and may be designed for other purposes.

(C) Nothing in this subsection affects any provision of chapter 9 of this title.

(2)

(A) Nothing in this subsection shall apply to the lending of a computer program for nonprofit purposes by a nonprofit library, if each copy of a computer program which is lent by such library has affixed to the packaging containing the program a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation.
(B) Not later than three years after the date of the enactment of the Computer Software Rental Amendments Act of 1990, and at such times thereafter as the Register of Copyrights considers appropriate, the Register of Copyrights, after consultation with representatives of copyright owners and librarians, shall submit to the Congress a report stating whether this paragraph has achieved its intended purpose of maintaining the integrity of the copyright system while providing nonprofit libraries the capability to fulfill their function. Such report shall advise the Congress as to any information or recommendations that the Register of Copyrights considers necessary to carry out the purposes of this subsection.

(3) Nothing in this subsection shall affect any provision of the antitrust laws. For purposes of the preceding sentence, "antitrust laws" has the meaning given that term in the first section of the Clayton Act and includes section 5 of the Federal Trade Commission Act to the extent that section relates to unfair methods of competition.

(4) Any person who distributes a phonorecord or a copy of a computer program (including any tape, disk, or other medium embodying such program) in violation of paragraph (1) is an infringer of copyright under section 501 of this title and is subject to the remedies set forth in sections 502, 503, 504, 505, and 509. Such violation shall not be a criminal offense under section 506 or cause such person to be subject to the criminal penalties set forth in section 2319 of title 18.
(c) Notwithstanding the provisions of section 106(5), the owner of a particular copy lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to display that copy publicly, either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located.
(d) The privileges prescribed by subsections (a) and (c) do not, unless authorized by the copyright owner, extend to any person who has acquired possession of the copy or phonorecord from the copyright owner, by rental, lease, loan, or otherwise, without acquiring ownership of it.
(e) Notwithstanding the provisions of sections 106(4) and 106(5), in the case of an electronic audiovisual game intended for use in coin-operated equipment, the owner of a particular copy of such a game lawfully made under this title, is entitled, without the authority of the copyright owner of the game, to publicly perform or display that game in coin-operated equipment, except that this subsection shall not apply to any work of authorship embodied in the audiovisual game if the copyright owner of the electronic audiovisual game is not also the copyright owner of the work of authorship.

Classroom Showings

Section 110 is one of the most important exemptions for teaching activities. Section 110 (1) allows for displays and performance in the course of face-to-face teaching. This exception allows teachers to read from literary works, show videos, play music, and so on. Section 110 (2) concerns those same displays and performances in distance education. Note in Section 110 (2-4) the use of the term "nondramatic". Feature films are other dramatic works and so only exempt under 110 (1) as of this time. There are no specific guidelines written for this exemption.

§ 110. Limitations on exclusive rights: Exemption of certain performances and displays

Notwithstanding the provisions of section 106, the following are not infringements of copyright:
(1) performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made;

(2) performance of a nondramatic literary or musical work or display of a work, by or in the course of a transmission, if-

(A) the performance or display is a regular part of the systematic instructional activities of a governmental body or a nonprofit educational institution; and
(B) the performance or display is directly related and of material assistance to the teaching content of the transmission; and
(C) the transmission is made primarily for-

(i) reception in classrooms or similar places normally devoted to instruction, or
(ii) reception by persons to whom the transmission is directed because their disabilities or other special circumstances prevent their attendance in classrooms or similar places normally devoted to instruction, or
(iii) reception by officers or employees of governmental bodies as a part of their official duties or employment;

(3) performance of a nondramatic literary or musical work or of a dramatico-musical work of a religious nature, or display of a work, in the course of services at a place of worship or other religious assembly;
(4) performance of a nondramatic literary or musical work otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the
performance to any of its performers, promoters, or organizers, if-

(A) there is no direct or indirect admission charge; or
(B) the proceeds, after deducting the reasonable costs of producing the performance, are used exclusively for educational, religious, or charitable purposes and not for private financial gain, except where the copyright owner has served notice of objection to the performance under the following conditions;

(i) the notice shall be in writing and signed by the copyright owner or such owner's duly authorized agent; and
(ii) the notice shall be served on the person responsible for the performance at least seven days before the date of the performance, and shall state the reasons for the objection; and
(iii) the notice shall comply, in form, content, and manner of service, with requirements that the Register of Copyrights shall prescribe by regulation; ....

Computer Programs

Section 117 grants exceptions for the use of computer programs that allow the owner of a lawfully obtained program to modify it so it will work on his or her computer and to make a back-up copy to use if the original is destroyed or damaged.

§ 117. Limitations on exclusive rights: Computer programs

(a) Making of Additional Copy or Adaptation by Owner of Copy.—
Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:

(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or
(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.

(b) Lease, Sale, or Other Transfer of Additional Copy or Adaptation.—Any exact copies prepared in accordance with the provisions of this section may be leased, sold, or otherwise transferred, along with the copy from which such copies were prepared, only as part of the lease, sale, or other transfer of all rights in the program. Adaptations so prepared may be transferred only with the authorization of the copyright owner.
(c) Machine Maintenance or Repair.—Notwithstanding the provisions of section 106, it is not an infringement for the owner or lessee of a machine to make or authorize the making of a copy of a computer program if such copy is made solely by virtue of the activation of a machine that lawfully contains an authorized copy of the computer program, for purposes only of maintenance or repair of that machine, if-

(1) such new copy is used in no other manner and is destroyed immediately after the maintenance or repair is completed; and
(2) with respect to any computer program or part thereof that is not necessary for that machine to be activated, such program or part thereof is not accessed or used other than to make such new copy by virtue of the activation of the machine.

(d) Definitions.—For purposes of this section—

(1) the "maintenance" of a machine is the servicing of the machine in order to make it work in accordance with its original specifications and any changes to those specifications authorized for that machine; and
(2) the "repair" of a machine is the restoring of the machine to the state of working in accordance with its original specifications and any changes to those specifications authorized for that machine.

Architectural Works

Section 120 provides that anyone may make and use a picture of a building that is visible to the public. The photograph itself is eligible for copyright protection by the photographer.

§ 120. Scope of exclusive rights in architectural works

(a) Pictorial Representations Permitted.—The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.
(b) Alterations to and Destruction of Buildings.—Notwithstanding the provisions of section 106(2), the owners of a building embodying an architectural work may, without the consent of the author or copyright owner of the architectural work, make or authorize the making of alterations to such building, and destroy or authorize the destruction of such building.

For more information contact the Library's Copyright Liaison

Identifying the Copyright Owner | Fees | Licensing Agencies | Permission Letters | Sample Permission Letter

Identifying the Copyright Owner

Many publishers, authors, and artists have licensing agencies handle permissions for them, so a good place to start is with one of those agencies.

It may be necessary or desirable to contact the copyright owner directly; that is usually the person or organization named in the copyright notice.

If they do not own the copyright, they should be able to refer you to the proper resource. Copyrights may also be transferred to others or perhaps the copyright is now owned by heirs. The Copyright Office maintains an online, searchable database of materials registered since January 1978. All formats are available.

Stanford University maintains the Copyright Renewal Database. "This database makes searchable the copyright renewal records received by the US Copyright Office between 1950 and 1993 for books published in the US between 1923 and 1963." The database contains only book renewals. This time period is one of the most difficult in determining whether a copyrighted book passed into public domain by not having the copyright renewed.

See "Locating Copyright Holders" by Lloyd J. Jassin for some other suggestions.

Fees

Fees can range from the nominal to expensive.

Licensing Agencies

Many copyright owners have licensing agencies handle copyright permissions for them. They often are more expedient in replying. A number of these agencies are listed below. They will usually charge a fee for their services. Sometimes the copyright owner will give the same permission without a cost, but it may take longer.

Some Licensing Agencies:

Permission Letters

The letter, on letterhead, should include:

• A complete description of the material to be used including author, title, editor, compiler, translator, and edition.
• The exact portion of the material, pages, and a photocopy if possible
• A description of how it will be used, including how many times, the number of people it will be distributed to, under what conditions (i.e. on or off campus, online course...)
• How the material will be reproduced (photocopy, off-set, digitized, etc.)
• A place for the recipient to sign to indicate that permission has been granted.

Remember that a non-response (silence) is not permission. If you receive oral permission, make sure you document the conversation and follow up with a letter.

Sample Permission Letter

Permissions Department
Publisher
Town, ST 12345

Month, Day, Year

Dear Sir or Madam:

I am writing to ask your permission to copy the following for classroom use next quarter September 2001:

Author: John Smith
Book Title: The Life of John Smith, 3rd ed., 1982 (out of print)
Copyright: 1979, 1982
Pages: 23-35 of Chapter 10 "Life Abroad" (photocopy enclosed).
Number of Copies: 60 (3 sections of History 256, U. S. History to 1865)
Distribution: Supplied to students as free handout fall quarter 2001
Type of reprint: photocopy

Enclosed please find a self addressed, stamped envelope for your convenience in returning this signed permission.

If you do not solely control copyright of the requested material, I would appreciate any information you can provide about the copyright owners, including most recent addresses if available.

Sincerely,

Bob Jones
Professor
College of DuPage
Glen Ellyn, IL 60137

Please initial any statement that applies:

• I hereby represent that I have the authority to grant the permission requested herein.
• I am the sole owner/author of the work.

Author or company authorized signature _________________________
Date _______________________

For more information contact the Library's Copyright Liaison