Copyright permissions for online educators is critical as the Internet provides better and quicker access to materials that may or may not be copyright protected. In your quest to provide innovative learning materials, fear of copyright infringement can be a limiting factor. Even with the best of intentions, educators make mistakes or overlook areas where intellectual property laws have claim. This is important for the user and for the creator. Some artists openly provide their materials in a free-to-use
creative commons license, others have registered copyrights that require permissions before you can use them. This is often called "licensing" the work
(Stim, 2010). The whole process becomes a large gray area, as copyright laws have changed over the years. Educators must identify if a work is in the public domain, copyright-protected and whether they can apply the "fair use" or "Teach Act" stipulations. If in question, it is best to assume the work is copyright-protected and request permission for use.
First, perform a due diligence to determine if the work is (1) copyright-protected, (2) in the public domain, or (3) under a
creative commons license. Follow the chart for copyright permissions and to determine if it is in the public domain.
Second, if the work is copyright-protected, consider if it falls under "fair use" or the "Teach Act"
Third, if you need permission, contact the legal owner.
Fourth, get permission in writing and pay fees if needed.
Copyright Permissions ©
Date of first publication
|
Copyright Protected?
|
Before
1923
|
No, in
Public Domain
|
1923 to 1977,
no © symbol
|
No, in
Public Domain
|
1923 to 1963,
© symbol, but not renewed after 28 years
|
No, in
Public Domain
|
1923 to
1963, © symbol and renewed after 28 years
|
Maybe,
protected for 95 years from publication
|
1964 to
1977, © symbol
|
Maybe,
protected for 95 years from publication
|
1978 to
2002
|
Maybe,
protected during life of author plus 70 years or 120 years if corp.
|
1978 to
before March 1, 1989, no © symbol or subsequent registration
|
No, in
Public Domain
|
1978 to
before March 1, 1989, © symbol or no © symbol but registered within 5 years
|
Maybe, protected
70 years after death of author or 120 years if corp.
|
March 1,
1989 on, © symbol or not
|
Maybe,
protected 70 years after death of author or 120 years if corp.
|
|
Additional Copyright Helps:
The Creative Commons Licenses
Check the work you wish to use for a Creative Commons license, which is one of the newer ways to identify works and the specific requirements to re-use them. For help in identifying the terms, check the Creative Commons website.
Fair Use
Sometimes you can use copyright-protected materials when they fall under the "fair use" provision. But this method, if contested, can end up in the courts to determine the legitimacy of the fair use. When this happens, the courts consider four factors with regard to the work used: purpose, nature, amount, and effect. (Waxer & Baum, 2007).
Factor
|
Fair Use
|
Unlikely Fair Use
|
Factor 1
The
Purpose and character
|
Nonprofit
Education
Research
Scholarship
Transformative:
commentary, news reporting, criticism, parody
|
Commercial
for profit
Same
purpose as original (not transformative)
Entertainment
(not parody)
|
Factor2
The Nature
of copyright-protected work
|
Work is
fact or nonfiction
Hyperlinks
Published
work
|
Original
has strong creative copyright
Not
published
|
Factor 3
The amount
in proportion to whole work
|
Small
amount used
Portion
used not key to work
|
Large
amount
The heart
of the work
|
Factor 4
Market
Effect
|
No
negative or positive market effects
|
Effects
market
Appeals to
same monetary market
Work is
made global
License fee
could have been paid
|
Additional Fair Use Helps:
The Teach Act
Determine if the work can be used under the Teach Act by following
these guidelines:
- You must be an accredited nonprofit education institution or
government
- You may perform a non-dramatic literary or musical work, or
reasonable portions of any work
- You may display any work in the amount comparable to a live
classroom setting
- Transmission must be under the actual supervision of an
instructor as part of a class session
- The work must be part of systematic mediated instructional activities
and related to teaching content
- You may digitize an analog work if not digital copy
available
- The transmission must be limited to the students enrolled in
the course
- You must use measures to prevent retention such as printing,
saving, downloading
- You must not interfere with technological measures that
prevent retention and dissemination put in place by copyright holder
Additional Teach Act Helps:
How to Get Copyright Permissions
If the copyright-protected work you want to use does not fall under the safety of "fair use" or The Teach Act, you need to get permission. First, identify the owner, which is not always clearly stated, and can include multiple owners. For a photograph or graphic on the Internet, contact the author for permission.
Sources to Contact for Permissions
Media
|
Contacts
|
Photos and
graphics
|
Photographer,
creator, website owner, gallery, museum
|
Film,
video
|
Producer,
distributor, actors, directors, screenwriters, Production company
|
Music and
audio
|
Composer,
musician, lyricist, recording company, licensing companies
|
Books,
articles, journals, online blogs, text, websites
|
Writers,
publishers, website owners, distributors
|
Determine the Rights You Need
Next, decide on the rights you need. Copyright owners have a bundle of rights that include the rights to reproduce, distribute, and modify the work
(Stim, 2010). You need to identify your intended use of the material and address
these three terms: exclusivity, term, and territory (Stim, 2010).
Exclusive rights mean that you will be the only user of the material. More common and less expensive is a nonexclusive right to use the copyright-protected work. This way, the copyright holder can license many people. If you get a nonexclusive right for a photo, others may also get the rights for that photo as well.
Term refers to the time that you are allowed to use the copyright-protected work. If it is a photo, the author may give you permission to use it for a term of one year. Longer terms are negotiable. Other options include a "one-time use" or "in perpetuity" -- meaning it is perpetual, or has not end. Also look for the word "irrevocable" which indicates that the copyright holder will not revoke your license. Once a copyright work goes into the public domain, it is free to use.
Territory defines where you can use the license. It may be restricted to the U.S., but this area of rights is muddled with the Internet and global access to information. However, it may be applicable for online courses within the a certain territory.
Time Frame
It may take one to three months to receive permissions to use a copyright-protected work and negotiate fees (Stim, 2010).
Ask for Permission in Writing
Include the reason for use, where you will use it, and ask for permission. This can be done in an email or by post. If a work has multiple copyright owners, you must contact and get permission from all of them. Try to be as specific as possible about the use of the work you are requesting. If you plan to gain any monetary benefits from usage, be sure to include this information.
Sources of sample permission letters:
A sample letter is noted here:
Heading
Re: Permissions for __________________
Dear [copyright holder]
I am a teacher for ________________________. I am making_____________________ and would like permission to use ________________________________________for the purpose of_______________________________. If you do not hold the copyright or if there are numerous owners, please let me know. Please let me know if I can use your work, or if you require a formal license agreement and fee. If you agree, include your preference for linking your work and giving you credit.
Thank you for considering this request.
Sincerely,
[name]
I grant permission for the use of the above referenced material in the manner described and no other rights are allowed.
Signature___________________________________Date__________________
Copyright Fees
Fees will vary based on the audience you reach, the type of work, whether for profit or not, and the scope of monetary value. Stock photos charge by the size of the photo, but not term. Private owners often have a term, which may be negotiable. Some artists may agree to share a profit, or if your work is for a nonprofit, educational use, they may not require any fee. Regardless, get everything in writing, and pay the fees before you use the copyright-protected work.
References
Waxer, B. M.,
& Baum, M. L. (2007). Copyright on
the Internet. Boston, MA: Thomson Course Technology.
, year of publication, and name of copyright owner)