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Copyright & Fair Use

The following policy applies to human subjects behavioral research for the purpose of data collection.   It is not intended for application beyond that circumstance.  Faculty, staff, and students who intend to use copyrighted material for other purposes should consult the Iona College Library or the Office of the Provost.

Copyright Protection

Copyright laws protect the financial and intellectual property interests of artists, writers, and other creative individuals.  Copyright laws give copyright holders the exclusive privilege to sell, display, reproduce, and distribute their work.  Copyright protection subsists in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

  1. Literary works and scientific journals;
  2. Musical works, including any accompanying words;
  3. Dramatic works, including any accompanying music;
  4. Pantomimes and choreographic works;
  5. Pictorial, graphic, and sculptural works;
  6. Motion pictures and other audiovisual works;
  7. Sound recordings; and
  8. Architectural works.

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

Due to the fact that established rules have been amended several times, the term of copyright protection will be determined by several factors, such as: a) when the work was created, b) whether published or not, and c) when it was first published.  Copyright protection extends for decades beyond a work's creation—in many cases, decades beyond the death of its author.  As a general rule, copyright protection for works under the jurisdiction of the United Sates have lapsed for works created before 1923, although some works may still be protected by way of grants of extensions of copyright protection.  For works created between 1923 and 1978, the researcher should assume that copyright protection is still in effect unless there is a clear indication to the contrary. In general, copyright in a work created on or after January 1, 1978, subsists from its creation and endures for a term consisting of the life of the author and 70 years after the author’s death.

The Internet and other modern technologies have affected greatly the ease of distribution and reproduction of copyrighted works and have led many to believe that works available via the internet are not protected by copyright law.  This is simply not the case.  Internet content is protected by copyright law regardless of how or where it is distributed and apart from whether or not there is a statement or notification of copyright accompanying the work.  Researchers should assume that works available online, including music, text documents, video, and photographs, are under copyright protection.

Public Domain

Works in the public domain are not protected by copyright laws and can be used without permission. Works in the public domain include works for which copyright protection has expired, such as Thoreau’s Nature, works that were never under copyright protection, such as Shakespeare's Hamlet, works that cannot be protected by copyright, such as mathematical formulae, and works of government agencies such as building codes.  The borders of the public domain are not always clear, however.  For example, the text of Hamlet is in the public domain, but editor’s comments embedded in the text, line numbering, or definitions are probably not in the public domain.  Photocopied or scanned selections from these kinds of works must be handled in accord with copyright laws.

Orphan Works

The inability to identify the author or copyright holder does not constitute a work in the public domain.  Works may be under copyright protection, even if the copyright holder cannot be located, contacted, or does not respond to requests to use the work.  Such materials are known as orphan works.  A reasonable person might conclude that someone making a good faith effort to obtain permission from the copyright holder should be permitted to use the work, but a court might rule otherwise.

Congress is actively considering the problem of orphan works.  In 2008, H.R. 5889, the Orphan Works Act, was presented to the U.S. House of Representatives.  This bill and successor proposals have neither been passed into law nor received unequivocal support in the Senate and House.  Orphan works should be used only in cases in which there is a reasonable claim that use of the work is protected by fair use provisions in the copyright law.

Fair Use Exception

The “fair use” exception to the copyright laws allows works to be utilized by others, without permission, in cases in which their use promotes the public good.  For example, a book reviewer may quote from the reviewed work without permission from the copyright holder because the review is intended to advance understanding and further creative activity.  Similarly, in some academic contexts, a professor can distribute to students photocopies of a work under copyright, without obtaining permission or paying royalties.

The fair use exception has not been established by the development of legislation, but rather is the result of court precedents.  Those rulings have been codified into the U.S. Copyright Code (Sections 107 through 118), but new cases are considered within the court system and the legal definition of fair use continues to evolve.

Section 107 of U.S. Copyright Code contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 sets forth four factors that courts have considered in determining whether or not a particular use is fair:

  1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
  2. The nature of the copyrighted work (for instance, different criteria apply to a full-length narrative film versus a poem);
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. The effect of the use upon the potential market for, or value of, the copyrighted work.

The distinction between fair use and infringement in a particular case will not always be clear or easily defined and the decision may require adjudication. However, the courts have a long history of rulings that favor the activities of educators and researchers because those groups typically are not seeking to profit from the use and generally do not harm the financial interests of the copyright holder. Keep in mind, however, that fair use rests on all four criteria, not simply the first and last.

Fair Use in Research

The guidelines that follow are intended for researchers seeking to use copyrighted materials for the purpose of data collection.  It is not intended to be a guide for library reserves, classroom use, or the use of copyrighted material beyond the data collection phase of research (e.g., conference presentation or manuscript publication).

Investigators intending to use material authored by others are required to state in the Tier I or Tier II application that he/she has permission to use the material, that the material is in the public domain, or that the copyright holder has granted permission to the community. In all other instances, a completed copy of the Fair Use Request Form must accompany the application. Approval for use of the materials will be determined by the Iona College Institutional Review Board (for Tier I applications) or by departmental review (in the case of Tier II applications).

Listed below are five common situations and guidelines for the investigator in each.

Explicit notification that the material is copyrighted and may not be used without permission.The investigator must seek permission from the owner of the material and cannot utilize the material in part or in whole without a statement of permission from the copyright holder. Researchers should be aware that in a large portion of cases the content of academic journals is the property of the publisher, not the authors; copyright permission must be obtained from the journal, unless the journal specifically states otherwise.

Explicit notification that although the material is under copyright, permission is extended to anyone wishing to use the material for the researcher’s purpose.No action is required of the investigator to use the material.

Explicit notification that the material is copyrighted and ownership of the material is clear or obvious. The investigator should contact the copyright holder and attempt to secure permission. If permission is denied, the investigator may not use the material. If the copyright holder does not respond in a timely manner or following multiple attempts, the investigator may complete the Fair Use Request Form.

Explicit notification that the material is copyrighted but ownership or authorship of the material is not stated or is unclear.After having conducted a search with due diligence to identify the copyright holder, the applicant may complete the Fair Use Request Form.

No clear or obvious statement of copyright, ownership, or authorship. The investigator should assume that the material is copyrighted and attempt to secure copyright permission. After having conducted a search with due diligence to identify the copyright holder, the applicant may complete the Fair Use Request Form.