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Copyright at DePauw: Exceptions: Public Domain, TEACH, Fair Use, Accessibility

This guide will give you a brief overview of U.S. Copyright Laws and open access as it pertains to your experience at DePauw. This guide is not intended to supply legal advice.

Exceptions

Works fall under public domain for a number of reasons:

  • Copyright has expired
    • In the U.S., most things published before 1925 are now in public domain
  • The work was never entitled to copyright
    • facts, legislative texts, government documents
  • The copyright holder failed to comply with formalities such as marking or registration
    • This was necessary in the U.S. between 1925-1978; registering your work is no longer required for copyright protections in the U.S.
  • The author dedicates the work to the public domain
    • Not legally possible in all countries outside of the U.S.
    • CC0

Works under public domain can be used by anyone as if they were the author or copyright holder, though it is always best to give credit to the author. With public domain works you are permitted to:

  • make copies and distribute them,
  • perform the work publicly,
  • display the work publicly,
  • make an adaptation or derivative work based on that work.

The fair use exception permits the reproduction of a portion of a copyrighted work without the copyright owner's permission, under certain circumstances. This is an important exception for education, as it enables students, scholars, and critics to use and reference copyrighted works in their own scholarship, teaching, and critiques.

The are four factors when determining fair use:

  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.

In the U.S., we rely on fair use to use copyrighted works without obtaining a license. 

Other countries have a similar exception, called fair dealing, that allow for the use of copyrighted work without obtaining a license.

The TEACH act (Technology, Education, and Copyright Harmonization Act) addresses copyright issues for distance learning.

The TEACH Act facilitates and enables the performance and display of copyrighted materials for distance education by accredited, non-profit educational institutions (and some government entities) that meet the TEACH Act’s qualifying requirements.

The TEACH Act provisions and fair use exceptions are often considered together but you only need permission under one exception.

If your use is permitted under fair use, then you do not need to rely on the TEACH Act.
If your use if permitted under the TEACH act, then you do not need to rely on fair use.

Some of the requirements of the TEACH act:

  • The institution must be an accredited, non-profit educational institution.
  • The content must be related to the teaching content.
  • Content should be limited to students officially enrolled in the course.
  • The institution should have a copyright policy and provide informational materials that promote copyright compliance to faculty, students, and relevant staff members.
  • The institution should use technology that reasonably prevents:
    • retention of the work in an accessible form by the user after the class session concludes
    • unauthorized dissemination of the work in accessible form to others
  • The institution should not interfere with technological measures by copyright owners to prevent retention or unauthorized dissemination.

Current U.S. copyright law does not have an exception for accessibility, and instead relies on statutory exceptions and the doctrine of fair use.

The Chafee Amendment (17 U.S.C. § 121) permits an authorized entity to reproduce or distribute copies of previously published nondramatic literary works if the copies are reproduced or distributed in specialized formats exclusively for use by blind or other persons with disabilities.

The Marrakesh VIP Treaty (Marrakesh Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities ) is an international treaty administered by the World Intellectual Property Organization (WIPO) which would obligate signatory countries to create mandatory limitations and exception to their copyright laws pertaining to “the right of reproduction, the right of distribution, and the right of making available to the public…to facilitate the availability of works in accessible format copies” for the benefit of people with print disabilities

The fair use exception can be an option for transforming or copying a work to make it more accessible.

In Authors Guild, Inc. v. HathiTrust, HathiTrust created a shared digital repository of collection materials from academic and research member institutions, allowing full access to patrons with qualifying disabilities. The district court held this activity was permissible under the Chafee Amendment, stating that educational institutions “have a primary mission to reproduce and distribute their collections to print‐disabled individuals…[making] each library a potential ‘authorized entity’ under the Chafee Amendment.”

U.S. code Title 17, Section 108, allows specific exceptions to copyright law for libraries and archives that are open to the public. This does not replace fair use. Librarians, archivists, and library users can rely on fair use.

  1. Libraries may make copies to share between other libraries for services such as Interlibrary Loan.
  2. Users may make copies of copyrighted works for their personal research means. 
  3. Libraries and Archives may make copies of deteriorating works that are not able to be replaced in any other manner.

Copyright, Exceptions, and Fair Use: Crash Course

Showing Videos in Class and on Campus - What You Need to Know

When you want to perform, display, or show a film, video, or TV program, whether it be as part of a course, at a group or club activity, at an organization event, or as a training exercise, you have to consider the rights of the those who own the copyright to the work you want to use. This consideration must be made regardless of who owns the video or where you obtained it. Copyright owners have certain rights, which are commonly known as public performance rights (PPR).

When you're using a film, video, or TV program in a classroom for teaching or educational purposes, such performance or display of the entire work may be allowed without permission under the face to face teaching exemption at 17 U.S.C. §110(1).

When showing a film in an online class, it may be considered fair use depending on how much of the film is being shown and for what purposes. If fair use does not apply, you will need a streaming license or view the film through a licensed streaming film provider.

In most other cases, especially when the film, video, or TV program is being shown as part of an event, you need permission--often in the form of a PPR license--to perform or show the copyrighted work. Learn more about PPR on the page titled: Public Performance Rights (PPR) for Screening Media.

The Copyright Act at §110(1) allows for the performance or display of video or film in a classroom where instruction takes place in classroom with enrolled students physically present and the film is related to the curricular goals of the course.

The TEACH Act amendment to the Copyright Act, codified at § 110(2), permits the performance of a reasonable and limited portion of films in an online classroom.

Instructors may also rely upon fair use for showing films in an online course, although showing an entire film online may or may not constitute fair use. Whenever the goals of a course allow, relying on clips or short portions of a film or video for online instruction is preferable.

Reach out to Sylvia Yang if you have questions about