Introduction

This chapter covers ownership and use of copyrighted materials created by parties other than the University of California or its employees.  While every effort is made to ensure the accuracy of information provided, readers should be aware that both copyright law and University copyright policy are subject to change and both are currently in a state of flux, due in large part to the need to address the relationship of copyright law to new technologies, including the World Wide Web. In fact, Congress recently passed a major new piece of legislation known as the  Digital Millennium Copyright Act and is considering further new legislation in the future.

How do I know if a work is copyrighted?

All text, software, audiovisual works, photographs, digital images and sounds are granted copyright protection as soon as they are created and fixed in tangible form.   All works created after 1978 are protected automatically.  They do not need to bear a copyright notice to be protected.  Unless you have explicit information that a work is in the public domain, you should assume that it is copyrighted and you must obtain permission to use the work.  For more detailed information, see "How to investigate the copyright status of a work," Circular 22, Copyright Office, Library of Congress, and the Copyright Clearance Site.

Can I use works copyrighted by others?

Unauthorized use or distribution of copyrighted works is illegal and may be considered a criminal act. Copyright law grants the exclusive right to use, copy, distribute, display and perform a copyrighted work to the owner of the copyright. The owner of the copyright is the only entity that may grant permission for anyone to use, copy, distribute, display and perform the work. Certain uses of copyrighted works do not require permission from the copyright owner and these uses are known as 'Fair Use.'

What is Fair Use?

From the text of the Copyright Act of 1976, as Amended, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

Fair Use is a common defense in copyright infringement lawsuits. It is important to understand that the law does not grant individuals the right to determine if they are making a fair use of a copyrighted work, rather, it provides guidelines for courts to make this decision on a case by case basis. Fair Use analysis is not simple and the outcome of a Fair Use defense is not predictable. It is unwise to assume that you are not infringing a copyright unless the specific use has been determined by case law to be non-infringing based on Fair Use, such as video taping television broadcasts for home use or copying a portion of a work to provide comment or criticism. In determining whether the use made of a work in any particular case is a fair use the factors to be considered include:

• the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
• the nature of the copyrighted work
• the amount and substantiality of the portion used in relation to the copyrighted work as a whole
• the effect of the use upon the potential market for or value of the copyrighted work

The Supreme Court has established the effect on the market value of the work to be the most important of these factors. It is important to understand that just because you may wish to use a work for educational purposes, it is not automatically a fair use of the work. For example, recent litigation has found that copying a work in its entirety rather than buying the book or journal, is not a fair use, even if it is copied for educational purposes. In another case, it was found to be infringing to copy and distribute copies of journal articles for many people in an organization when only one copy of the journal was purchased.

For UC guidelines on determining Fair Use for printed materials used for educational purposes, see the UC Policy and Guidelines on the Reproduction of Copyrighted Materials for Teaching and Research.  For more general information on Fair Use see  "Reproduction of copyrighted works by educators and librarians," Circular 21, Copyright Office, Library of Congress.

How do I get permission to use other people's copyrighted works?

For publications in books or journals, generally the publisher is the owner of the copyright and can grant permission for your use. If the publisher is not the copyright owner, they can probably direct you to the copyright owner. Depending on the nature of the work, permission may be required from more than one source. For example, if you wish to use a photo from a magazine, the publisher may own the copyright on the photo but if the subject of the photo is a well known person,  you may also need to obtain permission from the individual in the photo and the photographer. Obtaining permission to use a popular recording of a song may require permission from the composer, the lyricist and the performer.  Film clips may require permission from the producer and the actors, as well as the owners of the rights in the music if music is a part of the film clip.

When seeking permission to use a copyrighted work, you must provide specific information on your intended use of the work. You should describe in detail what you want to use, how many copies you intend to make, how the work will be distributed, and for what fee, if any. You should also state whether or not the project is for educational or commercial use.  Depending on your intended use, the owner may or may not grant you permission and they may or may not charge a fee to grant the permission. Fees may include a one time charge or a percentage of your profits (royalties.) It is also important to remember that you will only be granted permission for the use you specify. Different or additional uses in the future will require separate permission.

The University of California Policy and Guidelines on the Reproduction of Copyrighted Materials for Teaching and Research provides specific information on obtaining permission to use copyrighted printed materials  for educational and research purposes.  See the Copyright Clearance Center site for more general information on locating copyright owners, obtaining permission and paying royalties for use of copyrighted materials. 

If you are creating a work on behalf of the University, contact the campus Copyright Coordinator for assistance in obtaining permission and in any contractual negotiations, including payment of fees and royalties.

What happens if I use copyrighted materials without permission?

If you use copyrighted material without permission, you (and possibly also the University) may be sued for copyright infringement and may be subject to civil and/or criminal penalties, unless the court finds that the nature of the particular use of the work falls into the category of Fair Use.  See What is Fair Use? above. 

Do I need permission to use materials I find on the Web?

Yes, in most cases you will need to obtain permission.   Even though enormous quantities of  materials are freely available on the Internet or World Wide Web, they are probably NOT  in the public domain.   Most works distributed electronically are protected by copyright. You should assume all works available on computer networks and the WWW are copyrighted, unless they are accompanied by an explicit statement to the contrary by the author or originator. This includes images, text, logos, software, sounds, movie clips, email and postings to newsgroups. Under copyright law, unless you have been given permission to use or copy a work for a particular purpose, you may NOT copy the work, even if it is easy to do so. In many cases, there are permission statements included with the work and you may use the work for the purposes stated without any further permission or license.

Do I need permission to link from my web site to other sites?

This question is still being debated and there is no definitive answer at this time.  While, in most cases, the site owner will have no objection to your providing a link to their site, it is generally advisable to request permission before doing so.

What if I post infringing materials on my University web site?

Posting infringing materials (copyrighted materials used without permission of the copyright owner) on a web site is equivalent to including the materials in a book, videotape or computer program.  It constitutes copyright infringement for which you may be sued and for which you may be subject to civil and/or criminal penalties.  If the web site is located on a University-owned server, the University may also be held liable for infringement in some circumstances.

The Digital Millennium Copyright Act of 1998 (the DMCA) includes a limitation of liability for "On-Line Service Providers" ("OSPs") for information residing on systems or networks at the direction of users.   Where the University is acting as an  OSP for faculty and student websites, the University may generally avoid liability for infringing material  of which it was not previously aware, provided that it promptly takes down or blocks access to the material upon receiving proper notification of the claimed infringement.  The UCSC employee designated to receive official notification of claimed infringement is Janine Roeth, Support Center Director, Communications & Technology Services (extension 9-5401). In the event that Janine receives such notification of claimed infringement regarding your web site, she will contact you to discuss the claim and the appropriate campus response. 

For more information on the DMCA, including the full text of the Act, a U.S. Copyright Office summary, and various useful articles on this subject, see the EDUCAUSE web page on The Digital Millennium Copyright Act.