Copyright: Fair Use and Exceptions

Fair Use

Fair use allows limited use of copyrighted material without permission from the copyright holder for purposes such as criticism, parody, news reporting, research and scholarship, and teaching. While many educational uses may be fair, you need to evaluate your use each time you are reproducing copyrighted material — to show in your class, to hand out copies, to include in your writing, or to post on CTools.

There are four factors to consider when determining whether your use is a fair one. You must consider all the factors below, even though all the factors do not have to be in favor of a use to make it a fair one.

The four fair use factors are as follows:

1. Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes;
2. Nature of the copyrighted work, such as whether the work is fiction or non-fiction, published or unpublished;
3. Amount of the work used in relation to the copyrighted work as a whole, such as using a poem in its entirety, or using one chapter from a long book;
4. Effect of the use upon the potential market for the copyrighted work.

You have to apply the four factors to each use situation.  The four facts do not carry the same "legal" weight in each situation, and a majority of factors in your favor does not guarantee your use if Fair Use. Just because your use is for non-profit educational purposes does not automatically give you permission to copy and distribute other people's work.

Teach Act

The Technology, Education, and Copyright Harmonization Act (TEACH Act) says that teachers and students at accredited educational institutions can use works for distance learning without permission under certain circumstances.

If you:

• are an educator at an accredited educational institution,
• will supervise your students' use of copyrighted materials,
• are using the material as an integral part of a class session,
• are using the material as an integral part of your curriculum, and
• are using the material that is directly related to and of material assistance to your teaching content,

and you plan to use copyrighted works in the following ways:

• performances of nondramatic literary works (i.e., a recording of a novel being read aloud);
• performances of nondramatic musical works (i.e., a recording of a symphony);
• performances of reasonable amounts of any work (i.e., an excerpt from a movie); or
• display of any work in an amount comparable to what would be used in a live classroom.

then your use aligns with the Teach Act. For more help, see the Educational Exemptions in US Copyright Law workflow tool.

Facts, Data and Ideas Cannot be Copyrighted

According to the U.S. Constitution, the purpose of copyright law is “to promote the progress of science and useful arts.” If copyright could grant individuals or business exclusive control of facts and ideas, it would constrain all kinds of progress, or eliminate it altogether. The US Copyright Act says that 'in no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.'

Copyright may protect a collection of data as contained in a database or compilation, but only if it meets certain requirements. Simply working really hard to gather the data – what the Supreme Court called the “sweat of the brow” doctrine – is not enough. It may take a lot of work to gather all the names and phone numbers of all the people and business in a town and arrange them in alphabetical order, but white pages phone books do not qualify for copyright protection.

It is possible for factual compilations to possess the need originality. The compilation author typically chooses which facts to include, in what order to place them, and how to arrange the collected data so that they may be used effectively by readers. These choices as to selection and arrangement, so long as they are made independently by the compiler and entail a minimal degree of creativity, are sufficiently original that Congress may protect such compilations through the copyright laws.

Even if a database or compilation is arranged with sufficient originality to qualify for copyright protection, the facts and data within that database are still in the public domain. Anyone can take those facts and reuse or republish them, as long as that person arranges them in a new way. Unless they are accessible only under a contract that conditions access on limiting how the facts and data may or may not be used; any such contract would control.

Privacy and data
Research in a wide range of fields as diverse as medicine, sociology, education, and public policy may include information about individuals that is protected either by federal privacy legislation or by commitments made by the researchers. Even attempts to anonymize data before sharing it do not ensure that individual research subjects will not be identifiable. As a result, it is best to follow the best practices set forth in your discipline.

Copyright Exception: Reproduction by Libraries and Archives

Section 108 of the Copyright Act is a limitation on the copyright holder's rights built into the copyright law. It grants libraries and archives special copying privileges in light of the important role libraries and archives play for education, scholarship, preservation of knowledge, and to society in general. These legal privileges are governed by a highly complex set of factors and practices. Section 108 provides for copying by "qualified" libraries for interlibrary loan and preservation purposes, for example.

A qualified library (as defined in the law) may send portions of works to other qualified libraries provided the "aggregate quantity" does not replace a purchase or subscription of the work. The law does not define how much can be copied from a particular work.

Section 108 gives us some important flexibility as a library. For example, we can help you to borrow works from other libraries through interlibrary loan. For items we are unable to borrow, we can often get you portions of those works. For works in our collection, we can also provide copies of limited portions of those works - or we can get our copy of that work into your hands in most cases. These are important services we provide as your library in support of education, research, and scholarship.

Technology changes faster than the law. The library provisions in the Copyright Act of 1976 were concerned mostly with photocopying. In 1978, a commission of libraries, publishers, and others was charged to develop guidelines to help interpret Section 108 in a practical way. The result was the CONTU guidelines, named for the National Commission on New Technological Uses of Copyrighted Works. Many libraries, archives, publishers and authors follow these guidelines as common practice even though they are not the law, but conservative guidance.

Charts, Tables and Graphs Cannot be Copyrighted

Unless there is an element of creativity or originality, charts, graphs and tables as expressions of facts are not subject to copyright protection because they do not meet the first requirement for copyright protection, that is, they are not “original works of authorship.” Section 102(b) of the Copyright Act says that:

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

At first glance, this probably doesn't make much sense; if a researcher runs a series of experiments and collects a data set, isn't that original, and aren't they the author of it? In a sense, yes, but in the sense that's important for copyright, no. Facts and data aren't considered original works of authorship because they are not “created” so much as they are “discovered.” For example, if a scientist takes temperature readings at various locations over a period of years, she isn't “creating” the data, she's recording the data. If she keeps a log describing how she feels every day, and how the sunrise looks at the testing station, that's original, creative, authorship. Recording natural phenomena is not.

Furthermore, representations of data are also not protectable. Section 102(b) says “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." Essentially, that means that a graph, chart, or table that expresses data is treated the same as the underlying data.

The information presented here is intended for informational purposes and should not be construed as legal advice. Legal questions involving Oklahoma State University should be directed to the Oklahoma A&M Office of Legal Counsel.