This section outlines areas of US copyright law most relevant to the Stanford community.

Original Works, Exclusive Rights

The Copyright Act (Title 17 of the US Code) gives authors or creators of original works the exclusive right to:

• copy the work;
• distribute the work;
• display or perform the work publicly; and
• create derivative works from the original work. 

Copyright applies to any work that is “fixed in any tangible medium of expression”, including books, of course, but also photographs, drawings, music, architecture, drama, sculpture, web pages software, and multimedia works.  No copyright mark or registration is required for copyright to apply, so almost all modern works are under copyright.  That means that you can’t copy, distribute, display, or create derivative works from them without the explicit permission of the copyright holder. 

Note: Stanford’s Copyright & Fair Use site (http://fairuse.stanford.edu) includes a more detailed, though still abbreviated, overview of US copyright law, for those seeking more information.  See http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/

Penalties for Misuse

Penalties for copyright infringement can be harsh.  Fines of up to $150,000 in civil statutory damages may apply for each separate willful infringement, regardless of the actual damages involved.  Stanford may also take administrative action against copyright infringement, including loss of networking privileges and SUNet ID, or disciplinary action up to and including termination for faculty and staff, and expulsion for students. 

Copyright Term

Copyright is not permanent, and works do eventually enter the public domain, where can be reused freely, without any permission.  However, copyright term is often longer than expected, and changes in copyright law over time mean the length of copyright term may vary with the age of the work. 

Broadly speaking, works first published in the US before 1923 are in the public domain.  Also, US government works (though not state or local government works) never have copyright protection, and enter the public domain on publication.  Beyond those two categories, it can be challenging to determine the copyright status of a US work, and it is generally not safe to assume a work is in the public domain. 

By international treaty, we must respect the full copyright term of works in their home countries, and many countries have copyright terms that run for the life of the author plus 50 or 70 years.  Therefore, without researching the specific title, it is generally not safe to assume that an international work is in the public domain until it is at least 150 years old. 

Exceptions

While copyright holders rights are exclusive, there are some exceptions built in to copyright law that allow works to be used without permission of the copyright holder in very specific conditions.  The five major exceptions that are used in the academic environment are:

• Fair Use (Section 109 of Title 17)
• First Sale (also Section 109 of Title 17)
• Face-to-Face Teaching (Section 110 of Title 17)
• Distance Learning (TEACH Act), and
• Library & Archives Exceptions (Section 108 of Title 17)

The specific situations in which each of these exceptions applies are outlined below.  For works in copyright, unless one of these exceptions applies to your situation, you need permission to copy, distribute, or display the work.  Note that there is no general exception for educational use. 

Fair Use

Fair Use allows limited use of copyrighted materials for educational and research purposes.  The statute outlines four factors that should be assessed in determining whether a use is a Fair Use.  These are:

• the purpose and character of your use
• the nature of the copyrighted work
• the amount and substantiality of the portion taken, and
• the effect of the use upon the potential market.

The test is, intentionally, fact dependent, so you need to look at each use individually to determine if it is a Fair Use. 

Stanford’s Copyright & Fair Use site (http://fairuse.stanford.edu) provides much more detail on Fair Use, its application, and relevant case law.. 

First Sale

The owner of a lawfully obtained copy of a copyrighted work may dispose of that copy (lend, rent, sell, give-away, or throw away) without permission of the copyright owner.  Under the first-sale doctrine, a faculty member could lend out his copy of a book or a DVD to students in his class. This exception does not apply to recorded music, and many software licenses prohibit the use of the first-sale doctrine.

Face-to-Face Teaching

This exemption allows instructors to perform or display copyrighted materials during face-to-face teaching activities.  For example, it is permissible to show a full-length motion picture in class as part of the classroom learning. Note, however, that this exemption does not permit copying or distributing a work -- only displaying or performing it during class time.  Also, as the title implies, this exemption applies only to in-person presentations.  It does not apply to distance learning or virtual classrooms. 

Distance Learning

The TEACH Act extends the Face-to-Face Teaching exemption to distance learning courses in a limited way.  The exemption is narrow, and it is rarely applicable at Stanford, as Stanford has very few mediated distance online courses.  Note that this exemption does not apply to iTunes U or to MOOCs (eg Course2Go, Coursera); faculty will need to rely on the fair use exemption for such courses, or pay for distribution rights.   

When the TEACH Act does apply, it allows the instructor to transmit performances of entire non-dramatic works and reasonable and limited portions of any other audiovisual work without obtaining permission.  For the Act to apply, the performance or display must be:

1. A regular part of mediated instructional activity;
2. Made by, at the direction of, or under the supervision of the instructor; and
3. Directly related and of material assistance to the content of the course.

Further, the following technological restraints must be in effect:

1. The content must be accessible only to those students who are enrolled in the course;
2. The content must be accessible only for the duration of a class session;
3. To the extent technologically possible, the content must be protected from further distribution (“downstream-controlled”); and
4. To the extent technologically possible, the content must not be subject to retention by students
5. All material displayed must contain the following notice:

The materials on this course website are only for the use of students enrolled in this course for purposes associated with this course and may not be retained or further disseminated.  The materials on this course website may be protected by copyright; any further use of this material may be in violation of federal copyright law.

Georgia Harper at the University of Texas has produced an excellent checklist to help you determine if your use qualifies under the TEACH Act.  It is online here: http://copyright.lib.utexas.edu/teachact.html#checklist

Library & Archive Exceptions

Section 108 of the Copyright Act permits libraries and archives to make certain uses of copyrighted materials in order to serve the public and ensure the availability of works over time.  Among other things, Section 108 provides limited exceptions for libraries and archives to make copies in specified instances for preservation, replacement and patron access.  These exceptions will generally not apply to faculty, students, or staff outside of the library.  For more information on Section 108, see http://www.section108.gov/

DMCA & Access Control

The Digital Millennium Copyright Act (DMCA) prohibits the circumvention of technological measures that control access to copyrighted works (i.e., digital rights management technologies). Until recently, that prohibition even prevented circumventing such measures to access only a small portion that would be justified under the Fair Use Doctrine (e.g., a clip of a film). In 2010 and 2012, the Librarian of Congress has recognized that circumvention to access small portions for educational or accessibility uses by college and university professors and students is acceptable, and will no longer be subject to the prohibition.