Answers to your most common questions regarding copyright!
Q1: I'm confused by all these copyright technicalities. I thought copyright rules basically stop at the classroom door and that educators can use whatever they want without regard to copyrights as long as it's for an educational purpose. What happened to that?
A: Sorry, you were misinformed. Copyright law applies in the educational context as well as any other. The good news is that a special statutory exemption (17 U.S.C. § 110) allows movies, videotaped materials, and sound recordings to be played in a face-to-face classroom setting for educational purposes without restriction, provided that they are played from lawfully-acquired media (i.e. a licensed DVD or CD, not a "pirated" copy or something you downloaded from the Internet). Also, the "fair use doctrine" allows limited uses of copyrighted materials under certain circumstances. While "fair use" law is fairly murky overall, educators may rely on a generally-agreed set of "Educational Fair Use Guidelines" that clarify when and to what extent copyrighted materials may be freely used in the classroom (see "Educational Fair Use Guidelines" in basic memo). Instructors who want to use copyrighted materials in ways that exceed what is sanctioned by the Educational Fair Use Guidelines may find they will have to obtain permission from the copyright holder.
Q2: Isn't the federal government exempt from complying with copyright laws?
A: No. Federal entities such as DAU (and their employees) have to comply with copyright laws on the same basis as everyone else. Indeed, because copyrights are governed by federal law, judges tend to place a special responsibility on the federal government to set a good example by scrupulously obeying its own laws.
Q3: I would like to show a commercial motion picture in my class to illustrate certain ethical issues in a business environment. Can I do this without obtaining permission?
A: Yes. An instructor may show all or part of a commercially-produced motion picture in the classroom in its entirety, without obtaining copyright permission, provided that the film is being shown for a non-commercial educational purpose (not entertainment, not as a reward for good behavior), no admission fee or "donation" is required or requested, and the film is shown from a legal and lawfully-acquired DVD, videotape, laser disk, etc. You cannot save the film onto a digital storage device (server, computer, disk, etc.).
Q4: I'd like to assemble a set of readings for my course. The readings would include some materials I've written myself, some regulations and directives I've gotten from DoD and other federal government websites, and some articles I've photocopied from various journals and newspapers. My intention is to put this set of readings in a binder and give a copy to each student in the course. Is this okay?
A: Reading sets of this sort are referred to as "coursepacks" in copyright law. If any of the materials you want to include are copyrighted, you must obtain permission from the copyright holder to include them in your coursepack. (In the example given, that would appear to apply to the journal and newspaper articles.) Note that this is true
even if the copyrighted articles or extracts fall within the quantitative limits described in the "Educational Fair Use Guidelines" portion of the basic memo because those rules specifically prohibit copying copyrighted materials for inclusion in anthologies. Materials you write yourself as part of your official duties, as well as government regulations or publications, are in the public domain and may be freely used in a course pack without permission.
Q5: If materials created by federal employees in the course of their official duties are in the public domain, does this mean that anybody can get access to whatever I create? What if it's classified?
A: Works created by federal employees as part of their official duties are in the public domain for the purposes of copyright law. This means those works cannot be copyrighted by the author or anyone else. It does
not mean all such works are automatically available to the public. The government does not have to disclose classified national security information, information protected by the Privacy Act, material that is exempt from disclosure under the Freedom of Information Act, or other non-public information.
Q6: Who owns the copyright for things created by a contractor working on a government contract?
A: It depends. Within DoD, Defense Federal Acquisition Regulation Supplement (DFARS) Subparts 227.4 (Rights in Data and Copyrights), 227.70 (Infringement Claims, Licenses, and Assignments), 227.71 (Rights in Technical Data), and 227.72 (Rights in Computer Software and Computer Software Documentation) cover various scenarios regarding the ownership of copyright for works created under DoD contract. (Standard contract/solicitation clauses and provisions pertaining to intellectual property are in Subpart 252.227.) The DFARS recognizes that the contractor generally owns the copyright for works created under DoD contract (DFARS 227.7103-9, DFARS 252.227-7013-4). While a contractor may own the copyright for work produced under a DFARS contract, the government is not restricted in its use of the work. In unusual cases, the contract may specify that the government will have lesser rights. Alternatively, if a "special works clause" is inserted into a contract (DFARS 252.227-7020), the contractor must assign the copyright to the government. Example: A songwriter writes a new recruiting jingle for the Navy. The contract includes a special works clause whereby the songwriter assigns the copyright to the Navy, thereby giving the Navy a legal right to restrict use of the jingle by other parties. (Note that, although materials prepared by federal employees as part of their official duties are in the public domain and thus not copyrightable, the U.S. Federal Government itself may receive and own copyrights.)
Q7: Who owns the copyright in works created by one or more government employees working in collaboration with non-government individuals?
A: Works created by two or more authors with the intention that their individual contributions will be merged into a single product are called "joint works." The authors of a joint work are co-owners of the copyright unless there is an agreement to the contrary. Each co-owner has an independent right to copy, distribute and use the work without the permission of the other co-owner(s). Consequently, the U.S. Government co-owns a joint work when a government employee and one or more non-government persons together have produced the work. This means the government may reproduce and disseminate the work without the permission of other co-owners. (Co-owners do have, however, a duty to account for and share any profits generated by the sale or distribution of a joint work.) In the event a government employee co-authors a work with one or more individuals who are contractors or the employees of contractors, and the work created is a product of the contract, intellectual property rights are generally governed by the terms of the contract. In such cases, as previously described, the government customarily gets a non-exclusive license to use the work without limitation for its own purposes.
Q8: When our office purchases software or other educational materials, we sometimes find a "copyright licensing agreement" in the product package. On other occasions, a vendor has requested that someone in our office sign off on a "non-disclosure agreement" as a condition of delivering materials purchased under a DAU procurement contract. How should we handle these documents? Should we sign them?
A: DAU employees who deal with contractors should exercise caution when accepting copyrighted materials from a contractor or other vendor where the material is subject to a "licensing agreement," "end user agreement," "non-disclosure agreement," or similar writing, even if the contractor gives assurances that they are "standard" or "customary." Some agreements of this sort are harmless, but that is not always the case. These agreements sometimes contain provisions that purport to limit how DAU may use the materials provided, or that may seek to affect DAU's legal rights and obligations with respect to copyrights or other matters. Bear in mind that government contracting officers commonly negotiate the terms of procurement contracts in their entirety, and an added-on "licensing agreement" or similar writing therefore may be superfluous to (or even conflict with) the terms of the procurement contract. DAU employees should therefore consult DAU's General Counsel before signing any acknowledgment or other "acceptance" document that purports to signify DAU's consent to the terms of a licensing agreement or similar document. This includes "self-executing" agreements, such as those that assert that by opening the package or using the product DAU automatically agrees to the vendor's conditions.
Q9: I heard somewhere that anything posted on the Internet is automatically in the public domain. Does this mean I can use stuff I download from the Internet without worrying about copyrights?
A: Sorry, no. For the purposes of copyright law, the Internet is just another form of publishing or disseminating information. Simply because the Internet provides easy access to the information does not mean that materials found there are in the public domain and can be used without regard to copyright restrictions. Many copyrighted works have been posted to the Internet without authorization of the copyright holder, and there have been a number of celebrated cases in which persons who downloaded or forwarded music, movies, and other copyrighted materials found themselves in court for copyright infringement. DAU employees should exercise extreme caution in using downloaded digital material because there are both copyrighted works and public-domain works on the Internet, and it is not always obvious which is which. Copyrighted works found on the Internet must be treated the same as copyrighted works found in other media.
Q10: Our office sometimes gets offers from contractors to use or try out different kinds of software applications. Is that software in the public domain because it is being offered for free?
A: No. Both "freeware" (software distributed for free) and "shareware" (software distributed without charge on a trial basis for a limited period, after which continued use requires payment of a fee), may be protected by copyrights that prohibit further reproduction, distribution, or use in the creation of a derivative product without permission from the copyright holder. Please bear in mind that only DAU's IT administrators can install software on DAU-owned computers.
Q11: I thought it was okay to use copyrighted materials without permission as long as I give proper attribution to the author and include the little © sign. Isn't this correct?
A: No. Acknowledging that material you're using is copyrighted and properly crediting the author doesn't relieve you of the responsibility to honor the copyright holder's exclusive right to control the further reproduction, display, adaptation, etc. of his or her work. If the copyrighted material you intend to use is not covered by any of the permitted "free" uses (e.g., the "fair use doctrine"), you need to get the author's permission.
Q12: Let's say I get permission from the copyright holder to use a series of photographs in my PowerPoint slides. Do I have to give attribution and show the © sign in the slides?
A: You should credit the source, and display the copyright notice © and copyright ownership information if this is shown in the original source, for all copyrighted works you use including those prepared under fair use. "Crediting the source" means identifying the source of the work (author, title, publisher, and place and date of publication). "Copyright ownership information" is the © symbol, year of first publication and name of the copyright holder. In an educational multimedia presentation, the credit and copyright notice information may be shown in a separate section unless the multimedia material will be displayed or made available to students via a distance learning medium. For distance learning, the copyright notice and the name of the creator of the image must be incorporated into the image when, and to the extent, such information is reasonably available; credit and copyright notice information is considered "incorporated" if it is attached to the image file and appears on the screen when the image is viewed. You should also memorialize the basis on which copyrighted materials are being used. Examples:
[Material used pursuant to permission of copyright holder.] The material above is taken from Amanda B. Reckondwyth, "The Memoirs of Cap'n Doo-Dah," published by Great Big Publisher, New York, 2005. © Great Big Media Conglomerate, 2005. Used by permission.
[Material developed by contractor pursuant to DAU contract and contract specifies contractor retains ownership of intellectual property.] This presentation includes material that is protected by copyright and is used under license to the United States Government. This license does not extend to non-federal entities. Further use, reproduction, or dissemination of copyrighted materials by non-federal entities is not authorized without permission of the copyright holder.
[Material used on Fair Use basis.] These slides include copyrighted materials that are being used under the fair use exemption of U.S. Copyright Law and educational multimedia fair use guidelines. Further use of copyrighted materials is prohibited.
Q13: Do instructors or students have to give copyright information every time they quote a copyrighted source in scholarly articles, classroom research papers, and things of that sort?
A: No. There is no need for formal copyright acknowledgment where an author includes a short quotation in the text of a book, scholarly article, term paper, dissertation, or similar work, provided the author acknowledges the source of the material in the text or via a footnote, endnote, or similar citation. A student, for example, doesn't have to show the © symbol every time he or she quotes someone in a term paper or similar non-commercial writing, as long as the source is acknowledged by a footnote, endnote, or by some other appropriate means. Copyright acknowledgment is also necessary for copyrighted photos, drawings, charts or similar visual images. If the work is to be published, the publisher should obtain permission to use any visual images, and copyright information should be included in the published version.
Q14: I have prepared a great multimedia (e.g., PowerPoint) presentation for my DAU course. It includes "fair use" copyrighted material. Can I use the same multimedia presentation at a conference or symposium?
A: Generally yes, as long as your presentation is done on an official basis as part of your duties as a DAU employee. Educators may perform or display multimedia projects they created for classroom use, and that contain "fair use" copyrighted material, in presentations to their peers or other audiences where there is a clear educational purpose. The presentation should include the fair-use copyright notification at the beginning as described in answers to the previous two questions.
Q15: What about our distance learning systems? Can I post PowerPoint slides that contain copyrighted material on Blackboard for remote students?
A: Yes, but you have to jump through a lot of hoops. Multi-media fair use guidelines permit educators to perform (in real time) and archive (for subsequent viewing) their own educational multimedia projects on Blackboard or a similar platform for use by remote students subject to certain conditions. These are:
- The copyrighted material must be included on a permissible basis, either because you have obtained permission from the copyright holder or the use falls within fair use standards;
- The posting must be for the purpose of providing educational material to remote students enrolled in a DAU course;
- There must be technological limitations on access to the network and educational multimedia project (such as a password or PIN) so that it is accessible only to students currently or formerly enrolled in the course; and
- The system must have a technological safeguard that prevents making unauthorized copies of copyrighted material.
Q16: Some DAU courses use materials (publications, simulations, software, etc.) purchased from commercial suppliers. Is there a "fair use" rule that allows us to integrate elements of those materials into other DAU activities?
A: Specialized, commercially-produced educational materials frequently come with some sort of notice regarding permitted uses and copyright restrictions. (For example, when you're installing software on your computer at home, this is the screen that pops up with a bunch of fine print that requires you to scroll down and click "I Agree" before installation actually begins.) Before converting commercially-obtained materials to a different use, or extracting anything from them for use elsewhere, you should determine whether (or to what extent) those materials are protected by copyright, and whether they are subject to any license or user agreement.
"Fair use" guidelines do not preempt or supersede licenses and contractual obligations. You should consult DAU's General Counsel for advice before reproducing or using commercial materials in a manner that does not comply with any copyright restrictions or that is not within the scope of the original purchase agreement.
Q17: An article that I wrote as part of my official DAU duties has been accepted for publication by a private scholarly journal. The journal's publisher sent me a form requiring that, as a condition of publication, I formally assign my copyright to the publisher. How should I handle this?
A: Materials prepared by federal employees as part of their official duties, including scholarly articles, cannot be copyrighted. You cannot assign what you do not have. You should inform the publisher that because your article was prepared as part of your official duties, it cannot be copyrighted by you or the publisher. If the publisher requires further reassurance on this point, you may tell them to contact DAU's General Counsel. Additionally, bear in mind that government ethics regulations prohibit federal employees from receiving compensation for teaching, speaking or writing that relates to their official duties. Consequently, you cannot accept any form of compensation from the publisher. DAU employees who desire to do outside teaching, speaking, writing, or consulting are required to obtain prior written approval. Complete information about this, including the procedure for obtaining approval and a sample Request for Approval, are in DAU Directive 407, "Standards of Conduct," June 7, 2012 (available on the DAUNet webpage).
Q18: What are the rules for posting copyrighted documents on DAU's websites or distance learning platforms, such as Blackboard?
A: In general, you should not post a copyrighted document unless DAU has contracted to use the document in that way from the copyright holder or you otherwise have obtained permission from the copyright holder. Remember that one of the purposes of copyrights is to allow the copyright holder to realize the full commercial value of his or her creation, such as through sales of books or receipt of royalties from authorized users. When you make a copyrighted item available over the Internet, you are creating a path by which a person who wants to see or use that item can do so without paying the copyright holder, and therefore possibly violating the holder's copyright. This is true both on public access websites as well as internally-restricted educational systems, such as DAU's Blackboard network. You may freely post documents that you are certain are in the public domain or where the author has granted pre-existing permission for certain authorized uses (such as via a "Creative Commons" declaration).
DAU's Knowledge Repository and Acker Archives has subscriptions to a variety of commercial information databases.
DAU personnel and students can use these to obtain authorized access to books, journals, newspapers, and other copyrighted publications.
These databases provide a simple, fully-authorized alternative means of making copyrighted materials available to DAU personnel and students without the need to reproduce or post the actual documents. To access those database resources, go to the DAUNet Home Page and click on DAU Business Units>Performance Learning Directorate>Knowledge Repository>Database Resources. Assistance and advice on using these resources are available by sending an e-mail to
email@example.com or calling 703-805-2293.
Q19: What about posting links to copyrighted materials located elsewhere on the Web?
A: The use (and misuse) of copyrighted materials on the Internet is a rapidly evolving area of intellectual property law. In general, there is no problem with directing others to copyrighted materials that are available on the Internet via dissemination of a Web link. So-called "deep links"—where the link is to an internal page within another entity's website—present a special case. Some entities post a notice on their home page that deep links to their internal pages are not allowed. This is commonly because the home page contains copyright notices and restrictions, and the page owner does not want users to bypass this information by going directly to its internal web pages. In such cases, you should respect the entity's restrictions. You can do this by providing a link to the relevant homepage, with additional instructions on how to navigate to the deep link from there. (Example: "For further information, go to http://www.blahblah.org and then click on the link for 'Whatever.'")
Q20: I am developing a new distance learning course and will use some materials from our previous classroom curriculum. A few items appear to be copyrighted since they are tagged with the © symbol. How long will it take to identify the real copyright holder and obtain permission to use these materials? How much will it cost?
A: Hard to say. At a minimum, you should plan on a 30-day turnaround time. Past experience has shown that copyright responses can range from a few days to "never" in cases of uncooperative copyright holders. Preparing requests for copyright permission may require you to do some sleuthing just to confirm the identity of the true copyright holder and obtain contact information. While that was sometimes a daunting and time-consuming task in the past, the ready availability of information via the Internet has greatly streamlined this process. Costs vary greatly depending on the material, the intended use, and the whims of the copyright holder. However, DAU has had good success in obtaining permission to use copyrighted materials for its own internal, non-commercial educational purposes at no cost in many cases.
Q21: Can federal agencies be held liable for copyright infringement? What about individual government employees acting within the scope of their official duties?
A: A federal agency such as DAU may be liable for copyright infringement. The federal government may also be liable for infringement by a government contractor if the contractor acted with the authorization or consent of the government. DoD agencies process administrative claims of copyright infringement in accordance with DFARS Subpart 227.20. Otherwise, a copyright owner's exclusive remedy for government infringement is to file suit in the U.S. Court of Federal Claims within three years of the act of alleged infringement. (28 USC § 1498(b).) With respect to individual government employees, there's good news and bad news. The good news: Under the copyright statute, the copyright holder may only sue the violating government agency for infringement, not any of the agency's individual employees. The bad news: While government employees cannot be sued individually for work-related copyright infringements, their employing agency may impose administrative disciplinary action on them, including suspension or removal from federal service, for violating copyright laws, regulations or policies. This means that while DAU employees cannot be sued for copyright infringement that occurs in the course of their official duties, DAU can fire, suspend, or take other appropriate disciplinary action against employees who commit copyright violations.