Works created prior to March 1, 1989 generally need to contain a copyright notice in order to receive copyright protection; works created after that date do not. Thus, one should not assume that the absence of such notice means the work is not copyright protected.

The duration of copyright protection depends on whether the work is published and when the work was created. A circular prepared by the United States Copyright Office summarizes the various statutory provisions concerning copyright duration. That circular may be found on the Internet at http://lcweb.loc.gov/copyright/circs/circ15a.pdf.

1. Educational Performances and Displays Copyright law provides that the use of copyrighted materials in educational performances or displays does not constitute copyright infringement in certain circumstances. Where the performance or display is face-to-face, copyright infringement will not occur if an instructor or student performs or displays the copyrighted work in the course of teaching activities of a nonprofit educational institution and the performance or display occurs in a classroom or other place devoted to instruction. With respect to performances or displays that are transmitted, copyright infringement will not occur if the performance is of a nondramatic literary or musical work (displays may be of any type of work) and if the performance or display is a regular part of the instructional activities of a nonprofit educational institution and is directly related and of material assistance to the transmission's teaching content. The transmission must be made primarily for reception in classrooms or other places devoted to instruction or reception by persons to whom the transmission is directed because their attendance in classrooms or other places devoted to instruction is prevented by disabilities or other special circumstances.

   This exception to copyright infringement applies only where an individual is performing or displaying a copyrighted work. It is inapplicable with respect to other uses of copyrighted works, including the reproduction or copying of them.

2. Fair Use

   Copyright law provides that the use of copyrighted materials for purposes such as criticism, comment, news reporting, teaching, scholarship or research does not constitute copyright infringement in certain circumstances. That a work will be used for educational purposes does not alone equate to a finding of fair use. To determine whether a use is fair, the following four factors must be considered:

   • The character of the use: If a use is for non-profit, educational or personal purposes, the use will weigh in favor of fair use. If the use is of a commercial nature, it will weigh against fair use.
   • The nature of the copyrighted work: If the work contains factual material and is published, the use will weigh in favor of fair use. If the use is of imaginative or unpublished works, it will weigh against fair use.
   • The amount and substantiality of the portion used: The use of a small portion of a work weighs in favor of fair use, while the use of a large portion weighs against it.
   • The effect of the use on the potential market for the work: The use of the work will weigh in favor of fair use where the original is out of print or otherwise unavailable, where no ready market exists for obtaining permission to use the work or where the copyright owner is unidentifiable. If, however, the work is available or a method exists for obtaining permission to use the work, the use of the work weighs against fair use.

   Unlike the educational performance and display exception, the fair use exception applies to all uses of a copyrighted work, including copying and reproduction.

   Analyzing a particular use by weighing these four factors may result in different interpretations and uncertainty. Fortunately, organizations representing educational institutions, authors and publishers have developed guidelines to illustrate what uses of copyrighted works by institutions of higher education constitute fair use.

   The organizations first did so in the 1970s when congressional committees debating the enactment of the current copyright law requested that the organizations agree to permissible educational uses of copyrighted material with respect to the reproduction of printed material, music and audio-visual material. In response, the organizations developed the "Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions with Respect to Books and Periodicals," the "Guidelines for Educational Uses of Music" and the "Guidelines for Off-Air Recording of Broadcast Programming for Educational Purposes." All three items are included in a circular prepared by the United States Copyright Office, which can be found on the Internet at http://lcweb.loc.gov/copyright/circs/circ21.pdf.

   The organizations met again in the 1990s to develop guidelines for the fair use of electronic materials, including guidelines on distance learning, multimedia, electronic reserves, image collections and interlibrary loans. Unfortunately, the organizations did not reach a consensus with respect to any of the proposed guidelines. Many participating organizations representing the publishing industry, however, did endorse a document entitled "Fair Use Guidelines for Educational Multimedia," which can be found at http://www.uspto.gov/web/offices/dcom/olia/confu/confurep.pdf.

   Although these four guidelines are not the law and have been criticized as being unduly restrictive, they do set forth the conduct in which one can engage with at least some assurance that it is fair use or that the publishing industry will not challenge the use.

This memorandum is a general overview of copyright law and should not be relied upon to address specific copyright legal issues. In addition, other laws or contracts may limit the ability of a faculty member to use a work even where the use is permissible under copyright law.