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

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.”

There are Fair Use exceptions in U.S. copyright law that support educators:

1. “Music teachers can edit or simplify purchased, printed copies, provided that the fundamental character of the work is not distorted or the lyrics, if any, are not altered or lyrics added if none exist.
2. “Music teachers who get a compulsory license* for recording can make a musical arrangement of a work to the extent necessary for their ensemble. The arrangement cannot change the basic melody or fundamental character of the work.” (“United States Copyright Law: A Guide for Music Educators”)

Here’s what the law (37 U.S.C. §107) considers to determine 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 used and how substantial the portion used is in relation to the copyrighted work as a whole; and
4. the effect of the use on the potential market for or value of the copyrighted work.

Derivative Works that Require Permission

• Arrangements
• Simplified editions
• Orchestrations
• Instrumental accompaniments
• Adaptations
• Transcriptions
• Translations of lyrics

Requesting Permission

1. Determine the copyright owner (usually the publisher) using the Harry Fox Agency or ASCAP’s ACE Title Search.
2. Contact the copyright owner and ask for permission. NAfME member Jay Althouse recommends providing as much information as possible:
   • The kind of arrangement—band, chorus, orchestra, etc.
   • The number of copies or parts
   • Who is making the arrangement—you, a student, or someone for hire
   • Who will perform the arrangement—your chorus, the local symphony
   • Whether you will sell the arrangement and its price
   • How often the arrangement will be used—the 2008 Winter Concert or every year from now on
3. Get permission in writing.
4. Show a copyright notice on the arrangement—on all copies and all parts.
5. Keep in mind that permission may be denied or come with a fee.
6. Don’t risk infringement if permission is denied. Statutory damages range from $500 to $20,000 for each act of infringement, but can soar to $100,000 if the infringement was willful.

In his book, Copyright: The Complete Guide for Music Educators, Althouse describes noninfringing and infringing adaptations:

• Noninfringing: You buy enough copies of a choral work for your SATB choir and change a few notes in the tenor line.
• Infringing: You buy one copy of a 2-part work and adapt it for your SATB choir. You write men’s parts, notate them with Finale software, and distribute copies to your male singers.

Adapted from: National Association for Music Education. "Copyright: Arranging, Adapting, Transcribing." nafme.org. June 27, 2016. Accessed October 1, 2008. https://nafme.org/my-classroom/copyright/.

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.