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Handbook for Use of Copyrighted Materials

The Handbook is the combined effort of representatives of the NYU Libraries, Information Technology Services, and the Office of the Provost, together with the NYU Office of Legal Counsel. September 1, 2003.
Comments and questions are welcome. fairuse@nyu.edu

Introduction: This document is intended to provide helpful information to members of the NYU community who use copyrighted materials in educational and research activities. It is intended to provide a starting point for analysis and may need to be supplemented by other resources including consultation with Library or ITS staff or with a member of the Office of Legal Counsel. This information does not purport to establish policy on behalf of NYU or sanction specific uses of copyrighted material. In each case, users of copyrighted material are individually responsible for compliance with applicable law and policies of NYU. »more


Introduction

This document is intended to provide helpful information to members of the NYU community who use copyrighted materials in educational and research activities. It is intended to provide a starting point for analysis and may need to be supplemented by other resources including consultation with Library or ITS staff or with a member of the Office of Legal Counsel. This information does not purport to establish policy on behalf of NYU or sanction specific uses of copyrighted material. In each case, users of copyrighted material are individually responsible for compliance with applicable law and policies of NYU.

Under the copyright law of the United States, Copyright Law of 1976, U.S. Code, Title 17, [http://www.loc.gov/copyright/title17], the creator of a work of original authorship which is embodied in a tangible form and falls within the following categories will own the copyright to such work for some period of time: literary works, musical works, dramatic works, choreographic works, pictorial, graphic and sculptural works, motion pictures and other audiovisual works, sound recordings and architectural works. Ownership of a copyrighted work, as a general matter, includes the right to control the use of that work. Use of such work by others during the term of the copyright would then require either permission from the author or reliance on the doctrine of fair use. Failure to do one or the other will expose the user to a claim of copyright infringement for which the law provides remedies including payment of money damages to the copyright owner.

Fair use is a concept created by the copyright law as a defense to an assertion of copyright infringement. A "fair" use of copyrighted material may be found where the use is for purposes of "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research" and the following factors are considered:

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

A positive determination that a particular use is a "fair" use requires careful balancing of the factors listed above and may require reference to relevant case law.

Existing U.S. copyright law focuses primarily on print-based materials. The Digital Millennium Copyright Act of 1998 (DMCA) [http://www.loc.gov/copyright/legislation/dmca.pdf] provided additional legislation on certain topics involving electronic materials. However, the DMCA provided no clear statement of the application of "fair use" principles to electronic materials, and confusion and complexity have resulted in this area.

Readers of this Handbook should consult the "NYU Policy on Photocopying Copyrighted Materials" which applies the doctrine of fair use to the photocopying of copyrighted materials for educational purposes but does not apply to digital materials per se. That policy is stated in the Faculty Handbook (Statement of Policy on Photocopying Copyrighted Materials, approved by the Board of Trustees, May 9, 1983) and can be found at the following address: http://www.nyu.edu/academic.appointments/policies.html#photocopy. This policy may, by analogy, assist a reader in making a fair use analysis.

If you have questions regarding "fair use" of electronic materials or this handbook, send e-mail to fairuse@nyu.edu This listserv will be reviewed by administrators at the University who will attempt to respond to all questions promptly and will compile frequently asked questions for posting on this website. For existing FAQs, please consult "The Handbook for Use of Copyrighted Materials: Frequently Asked Questions About Use of Digital Materials."


Use of Copyrighted Materials

Members of the NYU community who use copyrighted materials provided in the Library, spontaneously and solely within a classroom setting or in limited and academically appropriate ways in papers prepared in fulfillment of course requirements are unlikely to need permission from the copyright holder of such materials. Such uses will almost always satisfy the fair use analysis discussed below.

Other kinds of uses of materials, including (but not limited to) posting on the web, copying for distribution within NYU and publishing in a scholarly journal, require more scrutiny. With these kinds of uses, users should assume that one or more permissions to use material must be obtained, unless the user has determined that one or more of the following conditions apply and has consulted with others at the University, as appropriate:

  • The material is in the public domain.
  • NYU has negotiated a license for use of the material.
  • Use of the material falls under "fair use" principles.
  1. Public Domain

    Copyrighted works are only protected under law for a specified period of time. The period of protection will vary depending upon when a particular work was created, whether the work was published or not and the law that is currently in effect. After the expiration of the applicable period of time, a work will lose its copyright protection and fall into the public domain where it may be used freely without permission.

    Works created by officers and employees of the United States government are not covered by copyright protection and are within the public domain. This is a large category of materials which includes government reports and data and informational publications of governmental agencies, many of which can be found in the Library or on the Web.

    Additionally, there are people who believe that information, materials and software should be available to the public for use without restriction. These people, often described as a part of a "free software" or comparable movement, will intentionally put their works into the public domain. It is likely to be obvious from the face of a work if it has been intentionally put into the public domain.

    A few important words of caution: a work will not be considered to be in the public domain simply because it does not contain an affirmative statement of copyright ownership or copyright notice; and material found on the Web is not necessarily in the public domain.

    One resource for helping to analyze whether a particular work is within the public domain can be found at http://www.unc.edu/~unclng/public-d.htm (last consulted 5/9/06). This site has been maintained by faculty at the University of North Carolina but no assurances can be given as to its content or current status. Please consult appropriate resources and offices of New York University in making your public domain analysis.

  2. Licensed by NYU

    NYU may have negotiated a license for use of specific copyrighted material. Generally, these licenses restrict use to members of the NYU community or to people located physically within the Library. These licensed materials can be used in classes, put on electronic reserve, and used for electronic classes using Blackboard.

    The NYU Library website contains links to many licensed electronic materials. An example of this is JSTOR, which includes the full text of selected humanities, social science and science journals. NYU-negotiated licenses generally include permission for authorized users to print and download reasonable portions of the database for educational and research purposes and other personal, noncommercial uses. Authorized users may publish information retrieved from the licensed material within their own work in the normal course of academic research, provided the licensed material is acknowledged as the source. However, such licenses may also include restrictions on such uses. There is no single NYU website that will show whether materials are licensed and which uses are permitted. You should contact the "Ask a Librarian" service of the Bobst Library and questions will be routed to the appropriate person

  3. Fair Use Principles

    Copyright law stems from a clause in the U.S. Constitution, which states that the purpose of copyright is "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." U.S. Const. art. I, § 8, cl. 8. By providing a limited time period and several exceptions and defenses to copyright protection, the law limits the right of the copyright owner to be rewarded for his or her creativity in favor of the common good of facilitating learning and the dissemination of ideas.

    The most significant limitation on the exclusive rights of a copyright owner is the fair use defense. This defense creates a balancing test that weighs four specific factors in order to determine whether a use infringes on a copyright: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. Courts have not established a bright line for when fair use ends and infringement begins, and have instead weighed the four factors equally to make a case-by-case decision as to the fairness of specific uses. When making digital or other reproductions of copyrighted material, each factor of the fair use test must be applied.

    The fair use factors have been interpreted to involve the following kinds of questions:

    • Factor 1, Purpose and Character of the Use:
      Is the use of a commercial nature or is it for nonprofit educational purposes? Is the use public or is it for limited educational purposes within a class or at NYU? Keep in mind that posting material to the Web without password protection is a publication to the world. Because Blackboard and other online learning programs are password protected, posting on these programs is not considered a publication to the world, just to the smaller class or group. Nonprofit educational uses which are limited in time and which do not lend themselves to obtaining the prior permission of a copyright owner (such as a spontaneous use in a class) are likely to satisfy this factor.
    • Factor 2, The Nature of the Copyrighted Work:
      Is the copyrighted work a work of fiction or fact? The courts have found that creative works or fiction are more likely to be protected by copyright than factual works.
    • Factor 3, The Amount and Substantiality of the Portion used in Relation to the Work as a Whole:
      Is the use of the entire work or only a portion? The smaller and less important the portion used is in relation to the whole work, the better, although with images this can be impractical and use of the entirety of an image will not necessarily defeat a finding of fair use if other factors are satisfied.
    • Factor 4, The Effect of the Use upon the Market for the Work:
      Does the use substitute for licensing or purchasing the same materials from the copyright owner in a manner that adversely effects the market for the work? It may be that use of a small portion of a work for a class presentation would not substitute for obtaining the whole work, whereas including an entire chapter or photograph in a set of prepared course materials would lend itself to obtaining a license or purchasing rights at the time the materials are being prepared. In addition to focusing on the particular use by an individual, consideration of this factor should include asking the question of whether similar usage on a larger scale, even within NYU, would affect the market for the work.

    In summary and as a general rule, "fair use" is more likely to apply if the purpose of the use is for non-profit education or research within NYU, if the nature of the material is primarily factual rather than creative, if the portion of the whole work used is small, and if using the material will not negatively impact on the market for the work. Fair use does not apply to the preparation of coursepacks of material (whether paper or digital) in advance of a course. Preparation of coursepacks is handled through the Bookcenters which uses a service to obtain copyright permissions, as necessary.

  4. Special Considerations for Digital Works

    A digital work is likely to consist of any number of separately copyrighted works owned by different people. A simple example is a digital book or article which consists of text and photographs: the author or publisher will own the copyright to the text but the copyright to the photographs may be owned by a separate person, perhaps the photographer. Images, music, charts and graphs and artwork may all be separately owned. When dealing with interactive media and music, additional complexities may exist where the content is owned by one party, performance rights are owned by a different party, and distribution rights are owned by a third party. These issues and each copyright owner's rights must be considered when you are contemplating seeking permission to use a work as well as when you are analyzing the use of a work under the fair use test.

    In a fair use analysis, the concern over unauthorized copying of digital material is heightened because digital works may be distributed and reproduced more rapidly than print works, for example via email or peer-to-peer file sharing systems. The digital medium also enhances the quality of reproductions; digital copies are often near-perfect reproductions of a work while print copies are typically poorer versions of their originals. While use of a digital work may still be fair use, the quality of the reproduction and the ease of distribution make it more likely that the market for the original work will be effected by the proposed use and courts will see the risks presented by the use as greater than in the print area. For example, in several cases, reproductions which are of inferior quality have been permitted as fair use (e.g digital "thumbnail" copies of prints used for purposes of evaluating whether to license the original) while high-quality reproductions have not.

  5. Certain Legislative Provisions Supporting Educational Uses

    In addition to establishing fair use as a defense to copyright infringement, Congress has established other limitations on the exclusive rights of a copyright owner to control the use of their works. These statutory exemptions are intended to support educational and library-related uses of copyrighted material.

    Section 108 of the Copyright Act provides an exemption which allows libraries and archives to make reproductions of copyrighted works for archival purposes or at the request of a patron or another library. Section 108 distinguishes between published and unpublished works; a library may make three copies of a published work that cannot be obtained at a fair price for the purposes of replacing a copy whose format has become obsolete or that is damaged, deteriorating, lost or stolen; a library may make three copies of an unpublished work that it already owns for the purposes of preservation and security. When reproducing either published or unpublished works, a library may make copies in digital format provided that such copies are not made available to the public in that format outside of the library's premises.

    Section 108 also allows libraries to copy materials at the request of patrons and other libraries or archives provided that the copies contain a specifically-worded notice regarding copyright and the library has no notice that the user will use the copy for non-educational purposes. Libraries may only make reproductions of entire works if those works cannot be obtained at a fair price but may make copies of portions of such works without undertaking such an inquiry. The statute does not explicitly permit digital reproductions.

    Section 110 of the Copyright Act permits teachers and students to perform or display any copyrighted work (including digital works) in a classroom in the course of face-to-face teaching activities, unless the work is a copy of an audiovisual work that the teacher or student knew, or should have known, was unlawfully made. Section 110 has been recently amended by the TEACH Act of 2002 to permit the performance or display of works in distance education in addition to face-to-face teaching. In order to be covered by the TEACH Act, the performance or display in an online format must satisfy the following requirements:

    • The transmitted work must be (i) an entire performance of a nondramatic literary or musical work, (ii) a reasonable and limited portion of any other kind of work or (iii) a portion of a work similar to the portion typically displayed in a face-to-face classroom setting
    • The transmitted work must not be (a) a work produced or marketed specifically for classroom use in digital education, (b) a copy that a teacher knows or should know is illegal or (c) textbooks, coursepacks or other materials that are typically purchased individually by students
    • The performance or display must be made under the supervision of a teacher as an integral part of teaching activities
    • The transmitted work must be directly related and of material assistance to the teaching content
    • The transmission of the work must, to the extent technologically feasible, be limited to students officially enrolled in the course
    • The teacher transmitting the work must (I) provide notice to students that the work may be subject to copyright protection, (II) apply technological measures that reasonably limit the students' ability to retain or distribute the work and (III) not interfere with the technological controls within the work itself.

Further Guidance

To broaden your understanding of copyright of electronic materials and for guidance on how and when to seek permissions, please consult the following resources:

  1. "Statement of Policy on Photocopying Copyrighted Materials"
    URL: http://www.nyu.edu/academic.appointments/policies.html#photocopy
    This document, also located on pages 111-116 of the NYU Faculty Handbook, succinctly states the University's policy relating to the duplication of materials.
  2. "World Wide Web Policies and Procedures for All New York University Computer and Network Users"
    URL: http://www.nyu.edu/its/policies/webpolicy.html
    This is a statement of the University's policies relating to the use of materials posted to the World Wide Web.
  3. NYU Library Subject Specialists
    The librarian whose subject expertise most closely matches your own discipline may be a good resource for answering your questions regarding when a use is considered a "fair use" under copyright law. If permission is required to use an item, the librarian might suggest an alternative solution that might meet your needs. A list of subject specialists by discipline can be found at http://library.nyu.edu/research/lib_arc.html.
  4. The Digital Studio
    URL: http://library.nyu.edu/digitalstudio
    The Digital Studio is a center for advanced research and experimentation with technology applications in the arts, humanities, and related disciplines. Studio staff may be able to assist you with questions related to use of electronic materials and "fair use." Contact the Digital Studio at 212-992-9233 or digital.studio@nyu.edu .
  5. Avery Fisher Center for Music and Media (AFC)
    URL: http://library.nyu.edu/afc/
    The AFC is located on the second floor of Bobst Library. It is NYU's largest resource center for the study of media-related materials. Kent Underwood( kent.underwood@nyu.edu@nyu.edu , 212-998-2534) the Head of the AFC, and Amy Valladares ( amy.valladares@nyu.edu , 212-998-2579), the AFC Manager, can assist you with questions regarding "fair use" and obtaining permissions regarding film, video, and recorded music.
  6. NYU Bookstore - Coursepacks
    URL: http://www.bookstores.nyu.edu
    To create a coursepack you must go through the NYU Bookstore, not a copy shop. For information, contact the NYU Bookstore Textbook Buyer at (212) 998-4671.
  7. When U.S. Works Pass into the Public Domain, University of North Carolina web site
    URL: http://www.unc.edu/~unclng/public-d.htm
    This site has been created and maintained by faculty at the University of North Carolina. No assurances can be given as to its content or content status. Please consult appropriate resources and offices of New York University in making your public domain analysis.
  8. Fair Use Forum - fairuse@nyu.edu.
    If you have questions regarding "fair use" of electronic materials or this handbook, send e-mail to fairuse@nyu.edu. This listserv will be reviewed by administrators at the University who will attempt to respond to all questions promptly and will compile frequently asked questions for posting on this website.
  9. The NYU Office of Legal Counsel
    The NYU Office of Legal Counsel is the place to turn if you have complicated questions regarding fair use, are a faculty member or administrator seeking permission to use a copyrighted work or if a copyright holder has challenged your use of their material. The Office of Legal Counsel is located at 70 Washington Square South, Room 1148. Phone 212.998.2240.
  10. For additional discussion of fair use, see Princeton University's Guidelines for Instructional Use of Copyrighted Electronic and Multimedia Materials [http://web.princeton.edu/sites/ogc/copyrightbasics.htm] and Stanford University's Copyright and Fair Use website [http://fairuse.stanford.edu/].
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