This document provides a summary of the law in this area and answers questions frequently asked of attorneys in the Office of General Counsel. However, the information presented here is intended for informational purposes only and nothing in this document should be construed or relied upon as legal advice. The Office of General Counsel or your Campus Legal Counsel should be consulted regarding the specific facts and circumstances associated with any legal matter.
This chapter introduces basic copyright principles that apply to members of the University of Wisconsin System community, either as users or as owners of copyrighted works.
The three basic forms of intellectual property are copyrights, patents and trademarks. Copyrights protect original works of authorship fixed in any tangible medium of expression. A work must be capable of reproduction or communication and fixed in some medium of expression to be protected. Examples of works that do and do not qualify for copyright protection include:
- Literary, musical, graphic, and sculptural works
- Motion pictures and other audio-visual works
- Derivatives of protected works, such as a sequel
- Original compilations of facts, such as a field guide
- Works lacking originality
- U.S. government works
- Items in the public domain
- Facts and unoriginal compilations of facts, like the phone book
- Freeware (but NOT shareware which can be protected)
Exclusive Rights of the Copyright Owner
A work is automatically copyrighted by operation of law at the moment it is fixed in a tangible medium. No registration or use of the copyright symbol (©) is needed. The copyright owner holds these exclusive rights in his or her creation:
- To reproduce (copy) the work
- To create derivative works (i.e., works based upon the copyrighted work)
- To distribute the work by sale, rental, or lending
- To perform the work in person or by a recording
- To display the work
- To perform sound recordings through a digital audio transmission
Use of Works Copyrighted by Others
Permission is required to use a work copyrighted by someone else, unless the use falls within a recognized exception to copyright infringement. Penalties for unlawful copyright infringement can be severe, including substantial monetary damages in certain circumstances.
Several centralized clearinghouses can often provide permission for the use of various kinds of works:
- Books or articles: Copyright Clearance Center
- Motion pictures: Motion Picture Licensing Corporation
An appendix to the UW System Policy on Ownership of Copyrightable Instructional Materials (GAPP 27) includes a sample letter requesting permission to use copyrighted materials.
The UW System has negotiated System-wide licenses with ASCAP (American Society of Composers, Authors and Publishers), BMI (Broadcast Music Inc.), and SESAC (Society of European Stage Authors and Composers), which are organizations that represent their member composers and music publishers in the licensing of non-dramatic music performing rights in musical compositions. The ASCAP, BMI and SESAC licenses cover the music performing rights for live or recorded performances of copyrighted works in concerts (unless promoted by outside promoters), sporting events, and other events, such as orientation and graduation events, on the university's premises. The licenses also cover transmission of such performances over campus computer network or cable television sytems. The licenses do not cover music performed live in a play where the music is an intrinsic part of the dramatic action. Such performances involve so-called "grand" performing rights and are not within the scope of the ASCAP, BMI or SESAC licenses.
The ASCAP, BMI and SESAC licenses also do not cover synchronizing sound recordings with video images in any medium such as on a DVD or on a website. Synchronizing copyrighted music to video images requires a separate synchronization license which can be costly and difficult to obtain. In these situations it may be more efficient and cost-effective to use “cleared music” which is available from a variety of providers for free or a small fee (see, for example, the OPSOUND website).
Any use of a copyrighted work without permission of the owner must fall within one of the recognized exceptions to the permission requirement. In using works for educational purposes, the most commonly relied upon exception to copyright use restrictions is "fair use." Codified at 17 U.S.C. § 107, the fair use exception is a four-factor test that balances the rights of copyright owners in their creations against the public interest in the free exchange of ideas. The four factors are:
The character of the use, for instance, scholarly criticism or
The nature of the work you want to use;
How much of the work is used; and
The effect of the use on the market for the work.
Use of a copyrighted work need not satisfy all four factors to qualify as fair use; rather, the factors favoring fair use must outweigh the factors favoring obtaining permission. Since the fair use test is not easily applied, you should contact the Office of General Counsel or Campus Legal Counsel whenever a copyrighted work will be used without obtaining the permission of the owner.
Purpose and Character of the Use
Certain kinds of uses of copyrighted works support a claim of fair use. Criticism, commentary, news reporting, parody, or other "transformative" uses that are protected by the first amendment to the U.S. Constitution are more likely to be fair use. Commercial use (as opposed to non-profit educational use) of a work is likely to require permission unless the other factors strongly outweigh it.
Nature of the Copyrighted Work
Since copyright protection requires originality, some works merit greater protection than others. Factual compilations with minimal originality are more likely to be subject to fair use than are imaginative, fictional works. A published work is more likely than an unpublished work to be subject to fair use because the fact that a work is unpublished may be the result of a deliberate choice on the part of the copyright owner to keep it private.
Amount and Substantiality of the Copying
In general, the smaller the portion of a protected work used, the more likely it is to fall within the fair use exception. The significance of the section copied in relation to the whole is also critical. Moreover, the amount that can be copied under fair use varies according to the type of use. An instructor could make fair use of an entire article for class discussion, but could be required to obtain permission to use the article in his own journal article.
Effect of the Use on the Potential Market for the Work
Courts ordinarily view this factor as the most important in determining fair use. Secondary use of a work that, by offering a substitute for the original, usurps a market that properly belongs to the copyright holder is not considered fair use. Both commercial and non-commercial uses can affect the market and lead to a decision against fair use. For example, widespread copying of a textbook, albeit for an educational purpose, could nevertheless affect the market for the textbook, resulting in lost sales for the copyright owner.
Other exceptions that may allow certain uses of copyrighted materials in educational settings include:
The Library Exception - There is a special exception for libraries, which may reproduce a protected work for patrons without permission under certain conditions. Libraries may also make archive copies of copyrighted works for the purposes of preservation and security.
The Teaching Exception - Instructors and students at non-profit educational institutions may perform or display a work within a classroom as part of teaching activities without committing copyright infringement. This exception includes showing films to students, so long as they are not illegal copies and are related to the course material.
The TEACH Act allows displays and performances of copyrighted works to be transmitted and used for instructional purposes in on-line instruction, without permission of the copyright holder, if numerous conditions are met. Like fair use, it is difficult to determine whether particular uses of copyrighted works in on-line instruction qualify for TEACH Act protection, so you should contact the Office of General Counsel or Campus Legal Counsel if you contemplate relying on the TEACH Act instead of obtaining permission from the copyright owner. In many cases, fair use provides a stronger basis than the TEACH Act for using certain works without obtaining permission.
Ownership of Employee-Created Instructional Materials
Under the UW System Policy on Ownership of Copyrightable Instructional Materials (GAPP 27), the employee usually owns all rights in his or her creations. For instance, a professor who creates a scholarly article in the course of research at a UW System institution would ordinarily own the copyright in it. The institution may have an interest, however, if it contributed substantial institutional resources in the creation of the work. "Substantial" resources could include providing the creator with paid release time from his or her job, or allowing the employee exceptional access to specialized computer resources to create the work. In practice, when an author uses institutional resources to create a protected work, it is best to agree with the institution beforehand about ownership and control of the work. GAPP 27 includes a sample agreement to allocate rights and interests in copyrighted works between the institution and the employee author.
In addition, if a work is produced with extramural support, such as federal funding or corporate sponsorship, the sponsor may have rights in the work. These rights need to be factored into any agreement allocating rights between the copyright owner and the institution.