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This section will walk you
though a copyright analysis. Different paths will be followed
depending on your role, the nature of the material, and
your intended use of the material. Some of the paths will
have checklists to assist you in analyzing and documenting
your decisions. These checklists should be retained if
you decide to use the work.
Indiana University-Purdue
University Indianapolis maintains a site that takes you
through the entire analysis process, How
To Secure Permission to Use Copyrighted Works. It
is excellent. The site provides a 4-step process outlining
how to determine if permission is required and how to
secure it. It is similar to our analysis below but more
rigorous. Take a look at the Indiana University site and
our workflow on this page. Use whichever one best suits
your needs.
Copyright Analysis:
An Overview
Copyright analysis is a two-stage process. How
far you need to proceed is determined by your findings
at each stage. The following questions summarize this
two-stage process.
Question 1. Is the work protected by copyright law?
Question 2. If the work is protected, does the intended use qualify
for an exemption (e.g., Fair Use, Section 108 for Librarians,
TEACH Act for distance learning)?
1. Is the work protected by copyright law?
Some works, such as those in the public domain, are not
protected by copyright law. Refer to the Copyright
Basics section for background on this. Use the Copyright
Decision Tree to assist and document your determination
of whether the work is protected.
Results:
- If you determine that the work is NOT PROTECTED, then
save your analysis documented in the Copyright Decision
Tree. You should be able to use the work without concern
over copyright infringement. You are DONE.
- If your work IS PROTECTED, then you must determine
whether your work qualifies for an exemption. Proceed
to Question 2.
2. Does my intended use of the work qualify for
an exemption?
Although you have determined that the work you are considering
is protected by copyright law, your usage may be exempt
and thus allow you to use it without asking permission
or paying a fee. The common exemptions are Fair Use, the
TEACH Act for distance learning, and Section 108 for Librarians.
See What Is Exempt From
Copyright Holder Rights? for more detail.
Your usage is exempt if you assess that any ONE of the
following exemptions apply.
Fair Use — Educational or research
usage typically falls under fair use, especially in
the traditional face-to-face classroom environment.
See What Is Fair Use? for guidance. Complete the Fair
Use Checklist to document your analysis if you anticipate
that your usage will fall under this exemption.
Distance Learning — If you intend
to use copyrighted materials for an online class (e.g.,
Blackboard/Vista) at a nonprofit educational institution,
you may qualify for an exemption under the The
TEACH Act. (See Guidelines
For Online Courses for additional background.) Complete
the TEACH Act Checklist to document your analysis if you anticipate that your
usage will fall under this exemption.
Special Exemptions for Librarians — Assuming certain requirements are met, libraries
and archives may duplicate copyrighted materials for
interlibrary loans or to replace materials in their
own collections that may be lost or damaged. Review
sections Reproducing
Works For Library Collections or Reproducing
Works For Interlibrary Loans for guidance on making
an informed decision with respect to usage under these
exemptions. Although there is not a checklist to document
your analysis in this case, it is still advisable for
the library holding the copy to document the analysis.
Results:
- If you determine that your intended usage is EXEMPT,
then save your documented analysis. You should be able
to use the work without concern over copyright infringement.
You are DONE.
- If you determine that your intended usage is NOT EXEMPT,
then permission is needed. Proceed to Seeking
Permission.
Always Remember to Protect Yourself
You should use and retain the forms provided on this website
to document your copyright analysis. If your determinations
are challenged, these records should help to establish
your good faith efforts to comply with copyright law and
the permitted exemptions. For more detail see What
Are The Consequences Of Copyright Infringement?
A Final Warning
The tools provided are intended only to assist in making
an informed decision concerning copyright usage. They
are not legal documents nor are they intended to take
the place of legal advice. If you are uncertain as to
your rights and responsibilities, you are encouraged to
seek an attorney’s advice. |
