This guide is not intended to be legal advice. It is designed to provide general information about copyright to consider while researching and teaching in the health care field.
Ideas are not copyrighted, but the expression of those ideas captured in writing, video, audio, or other formats is protected by the copyright law. The old rule of copyrighted materials containing a copyright symbol is gone. Since January 1, 1978, anything set into a physical format (such as slides, handouts, illustrations, video and audio recordings, Web pages, PowerPoint presentations, photos, artwork, books, journals, even personal notes) is protected under the copyright law, whether it contains a copyright symbol or not.
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Authors think they own the copyright, but rarely do. Most often the publisher of the journal, book or image owns the copyright and not the author(s) or creator(s). Most faculty sign the copyright to their article or book over to the publisher.
Many publishers do allow authors to use and share their works for educational and non-profit use. Several publishers have recently given retroactive permission to authors to post their work on an institutional repository or their own faculty Websites. Check the agreement you signed with your publisher or the publisher's Website to determine your rights.
For articles written by other faculty or colleagues, asking the author for permission may not be enough. You may need to find out who is the true copyright holder to seek permission. Here are some quick tips for determining the true copyright holder:
Just because you cannot find a copyright statement does not mean it is not copyrighted. Works published since 1978 are not required to publish a statement or include the copyright symbol.
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3. What are the general steps for considering whether something is fair use?
If you can answer yes to all these questions you are probably covered by fair use, but if you answer no to one of them, you will need to carefully weigh all the fair use criteria.
If most of these answers are no, you may need to consider seeking permission or paying the royalty fee for using the copyrighted materials.
If your use is covered under fair use, you do not need to seek permission or pay a royalty fee. However, repeated use over several years for the same class, program, etc., may not be covered. Some publishers believe that you should seek permission or pay a royalty fee for repeated use of copyrighted works, though this is not stipulated by the copyright law.
4. Is there a formula for determining whether the amount I am using is covered by fair use? Is 10% or 25% of a work too much or too little?
There are precise formulas for sound recordings, videos, and creative works, but there are no similar guidelines for factual and scientific information.
Think about how you would want your work used. The article may be 20 pages long, but if you use the most important page or section of the article, it may not be fair use. Would you want someone to use all the images or figures from your article, or just a few?
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5. What about repeated use of the same material?
When you repeatedly use a copyrighted work over and over again, you may want to consider seeking permission, though this is NOT stipulated by the copyright law.
Restating the information in your own words or creating your own table of data is not a violation of copyright, though you do need to cite the source of the information.
If you use an online article that is part of Duke's electronic subscriptions, you can repeatedly link to it without seeking permission or paying fees.
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6. What does it mean when something is in the public domain? May I freely use it?
When something is in the "public domain," it is not covered by the copyright law. What is in the public domain? Usually U.S. government documents and works that have expired copyright terms are public domain materials.
U.S. government documents are considered to be free to the public and are not covered by the copyright law. Therefore, government documents are usually within the public domain unless they specifically state that they have restrictions on their use. However, documents created by the governments of other countries may be copyrighted.
When copyrights do expire, the works pass into the public domain and are freely available for use. However, this is complicated by several prior and recent changes in the copyright law that have an impact on how items may be copyrighted, how long those copyright terms last, and how the copyrights may be renewed.
Basically, anything published before 1923 is no longer copyrighted, but after that it is best to check the "Copyright Term and the Public Domain," a chart created at Cornell.
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7. Are materials on the Web/Internet publicly available for free use?
Like other materials, Web pages and their content are protected under the copyright law. Most people who have Web content expect others will use it, but not for commercial purposes.
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1. What are the "Guidelines for Classroom Copying"?
To help guide people in applying the fair use criteria in education, the "Reproduction of Copyrighted Works by Educators and Librarians" circular was published by the U.S. Copyright Office. These are not a law nor part of the copyright law, but are simply guidelines to help faculty decide how they can apply fair use when teaching.
The guidelines should be viewed as stating the MINIMUM and not the maximum application of fair use in the educational setting.
These guidelines were designed for not-for-profit educational institutions for books and journals (periodicals). They do not apply to for-profit educational institutions or non-educational settings.
The guidelines allow you as a faculty member or instructor to make a single copy of a book chapter, journal, or newspaper article, short essay, story or poem, or a chart, graph, diagram, drawing or picture from a work. The single copy is to be used by you for your research, use in teaching, or preparation for teaching a class.
Multiple copies are also permitted under the guidelines for use in the class or for discussion, IF the use meets certain tests:
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2. What does brevity in the classroom guidelines mean?
The guidelines have precise definitions for brevity when considering literary works and illustrations, but they do not define what is fair use for scientific or factual works.
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3. What are the guidelines for providing multiple copies for classes?
You as a teacher (faculty, instructor, etc.) may make copies of an article for all their students without any problem. You may want to seek permission if you want to use the same material year after year, though this is not stipulated by the copyright law.
Problems may arise when you use more than one or two articles (or chapters) from the same journal issue (or book), you make copies of the same materials every semester for the same class, or you make copies of a lot of articles for the class instead of using a textbook. (If you have a textbook, this would not be a problem.)
Under the copyright law, libraries are not allowed to make multiple copies. A library may make only one copy for individual use when requested by a patron.
Please see the section on "Guidelines for Classroom Copying" for more details and best practices.
4. What is the best or easiest way to use materials for teaching?
Assigning online materials available through our library is the easiest and safest path through copyright issues. The licenses for e-journals usually include the right for students to repeatedly access these materials online and make personal copies. AND you can repeatedly use the online articles from semester to semester.
However, e-journal licenses usually prevent you from making copies of the PDFs or other digital files that contain the articles, from sending those files to students or colleagues, and from placing the files on Blackboard, an Internet site, or in a database.
Be aware that if you print a copy of an article from an e-journal and want to give students photocopies of the article, you will need to consider the guidelines governing classroom use.
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5. How does all of this apply to continuing education, in-service training and patient education?
The classroom guidelines apply to non-profit educational institutions and do not apply to other types of institutions even though they may be not-for-profit and may be offering other types of educational events. The guidelines and the copyright law only refer to "classroom use" for discussion and teaching. Neither directly mentions fair use rights for CE courses, training for staff, or patient education held by other types of institutions.
Since Duke is a non-profit educational institution, you may apply the fair use criteria to see if your educational use of materials fits under those tests.
In terms of the purpose of the use, Duke is a non-profit institution and fits under the first criteria or test for fair use. But if Duke holds a large educational event to generate profit, you may have crossed the threshold of what is permitted under fair use.
Given the specific circumstances, for-profit institutions may also be able to use materials under fair use as well. However, for-profit institutions have at least partially failed the test of "purpose of the use" and need to carefully weigh the other factors.
The "type of material" is the next fair use test. Most health care materials fall within the category of scientific or factual information as opposed to literary or creative works, which have greater restrictions on fair use. However, if you decide to use poetry, a section of a novel, or materials written for consumers, as opposed to health professionals, your use will be subject to that stricter interpretation of fair use. A scientific article may be easier to defend as being covered under fair use.
Substantiality and market impact are the two factors that are very likely to impact whether the use of works will fall under fair use.
You have to balance all of these factors to determine whether something is fair use for CE, in-service training or patient education. Unfortunately, there are no clear-cut measures as to when you have crossed the line and are no longer able to use fair-use rights. There is no one right answer, since every situation may be different.
Here are some examples that may provide you more guidance:
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6. What can I use for Duke programs?
In most cases your work as a teacher or presenter while at Duke is covered under fair use. Non-profit educational activities include teaching residents, students, and fellow clinicians.
The same is true for continuing education activities sponsored by Duke for its staff and physicians. Follow the best practices for using materials under fair use, but if the CME or CE Program begins to look like a commercial event or large revenue generator, you may need to seek permission and pay a royalty fee.
7. What about non-Duke CME programs?
It all depends... Here are some questions to ask:
When in doubt, seek permission to use materials.
8. What is the TEACH Act and how does it apply to my teaching?
The TEACH Act was passed to address the needs of institutions providing distance education courses. It does NOT apply to courses taught on the campus. It only applies to students and teachers at non-profit educational institutions and gives them the right to transmit performances and displays of copyrighted works as part of a class IF certain conditions are met.
There are a number of criteria to be met and there are a lot of complex issues and definitions to be considered. Below is a general discussion of the criteria, but individuals hoping to use the TEACH Act should read the law or visit other Websites that provide information for faculty, such as the one at University of Texas Libraries.
The TEACH Act applies only to ACCREDITED, non-profit educational institutions. The educational institution must:
If an institution meets all these criteria, then faculty can use the TEACH Act for distance education courses.
Then the faculty members needs to determine if the types of materials are covered by the act:
The following materials are NOT permitted under the Act:
Even if the use of materials is permitted, there are additional criteria that must be met:
Analog versions (paper, film, video) may be converted to digital formats IF:
The TEACH Act is complex, but does allow the use of materials for distance education not covered under the original copyright law. However, faculty who wish to use the provisions under the Act must ensure that their institutional policies are in place and all other criteria are met.
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9. Can I show videos in a class?
Many faculty members want to use videos in class. A specific exception to the copyright law allows such public performances in the course of face-to-face instruction, in other words within the classroom setting. While the best practice is to use selected clips or excepts from a video the exception does extend to showing entire films.
However, the rules change when the classroom presentation is recorded and transmitted to a distance education site or mounted on a Web course site. These circumstances no longer fall into the face-to-face teaching exception, so we have to look either use the TEACH Act exception or to the more general fair use provision to find justification for this practice.
The TEACH Act deals with transmission over a system that restricts access to registered students. This usually means a password protected system that requires a user to login to use the recording so other non-registered students and the general public do not have any access to it. Short clips or excerpts are allowed but it is important to restrict the amount of transmitted material as much as possible. The TEACH Act exception says that only "reasonable and limited" portions may be used in transmissions to distance education students, while fair use makes the amount of the clip used part of a balancing test of fairness. In both cases, the basic rule is that no more of a film should be used than is necessary to illustrate the point being made by the instructor.
10. What is a notice of copyright?
The law requires that individuals be informed that materials may be copyrighted and protected under the law. Libraries have to post signs at copiers and include statements on photocopy request forms. Notice of copyright may also appear on the bottom of journal articles or on the first page. If there is no visible statement on copies that you are making for others or posting on your class Website, then you need to include the following:
"This work may be protected by copyright."
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1. How can I use the PDF and HTML files from electronic journals?
While many publishers allow downloading files of articles for personal use, most prohibit creating databases of these files, placing them on public or even internal Web pages, and sending them to listservs or numerous colleagues. Policies vary from journal to journal and publisher to publisher, so do not assume that all policies are the same.
Most publishers do not allow:
Library and institutional subscriptions to e-journals have already paid for the right for faculty, staff, and students to have access to the articles and to make personal copies for themselves. Most e-journal licenses do allow:
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2. Can I scan a paper copy and distribute it?
As you can make a photocopy for personal use, you may also scan a copy of an article or book chapter for personal use. However, most publishers do not allow scanning articles to be distributed to students or colleagues or to be placed on a Website.
Under fair use, you may scan an article for a class and post it on a password-protected Website for your class once. However, you cannot distribute a copy of the digital file via email or storage media (CD-ROM, DVD, flashdrive) to the students or to your colleagues. Nor should you use the item for the same class repeatedly over several years without seeking permission.
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3. May I create a packet of photocopied articles for students? Is this a course pack?
Course packs are created when an instructor selects numerous articles for the students to read and provides them with copies of those articles at the beginning of the class. The students are given a "pack" of the course's assigned readings. Course packs are not specifically illegal, but after several major court cases, many non-profit educational institutions require that faculty seek permissions for using articles and this usually involves the payment of royalty fees.
First use of copyright materials is still covered under fair use for educational purposes and permissions or royalty fees are not required. However, keeping track of this can be difficult and some institutions require that royalty fees are paid for all articles.
A course pack is defined as such whether it is in paper (photocopies) or digital format. Many publishers consider saving a lot of files on a diskette and distributing it to every student as not being fair use of their copyright-protected materials. A few publishers do permit the use of digital files, but this varies from publisher to publisher.
Course packs are definitely NOT fair use if they replace the need for a textbook or represent a substantial amount of the reading materials for a course. Publishers view course packs as having a direct impact on their market, since the students are not purchasing the usual educational materials.
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4. May I create a database of articles that I can share with students or colleagues?
You can create a collection or database of articles for your own personal use, but you may not make this available to students or other colleagues. However, you may create a database of links to electronic journals and books and share those links with colleagues and students.
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5. May I post my own article to the Web?
If you are sure you own the copyright for it, then you are free to put the article on a Website - public or private.
However, most authors do not own the copyright and need to check their agreement with the publisher. While many publishers are allowing authors to "self-post" articles on an institutional or personal Website, there may be restrictions. Some require that you post only your original manuscript or your version of the edited manuscript. Most do NOT allow posting of the publisher's version of the final article. Many also require links back to the publisher's version.
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6. May I make as many copies as I want of my own article?
When authors sign agreements with publishers to have their articles published, many turn over ALL of their copyright rights, including the right to distribute (photocopy) their articles.
However, some publishers, especially societies, do allow the authors to make copies for educational purposes and to share with other colleagues. Your agreement with the publisher will state whether there are any restrictions about this.
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7. Can I use images in the online teaching modules that I develop?
Fair use does allow you to use images in digital format for internal course management systems. The same issues apply: how many images are taken from one source, how often are the same images are used, and whether proper attribution is given.
Most publishers will not permit the use of images or other materials for courses that can be accessed by the general public. Access to the materials needs to be restricted to students registered for the course or curriculum.
The same is true for courses offered for CE or CME credit to groups outside the institution.
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8. Where can I find good images for presentations?
Still images in books, journals, and multimedia are copyrighted. Even images on the Internet belong to a copyright holder somewhere. Google Images and other search engines allow you to find numerous images, but you must remember that most of them are copyrighted. Apply the same fair use guidelines as for other print materials and make sure that you cite where you obtained the images. In addition, there are special guidelines and considerations for using motion images, such as from videos and motion pictures, and anyone choosing to use those formats should refer to those specific guidelines.
To assist people with images, libraries often subscribe to image sets that can be used by students and faculty within their institution. However, these images may still come with restrictions, such as extra fees for use in publications or multimedia programs. Be sure to check with the Medical Center Library about how you can use them.
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9. Do I have to seek permission to link to something on the Internet?
Materials on the Internet are freely accessible and linking to another Website is not a violation of copyright. There is nothing preventing you from creating links to other site, even links to items deep within the Website, often referred to as "deep linking." One danger of deep linking is that content on the Web often changes location and the link that worked yesterday may not work tomorrow.
However, if you plan to have a permanent link or repeatedly refer to the Internet content of another site, you may want to contact the author or Web manager and let them know you plan to put in links and why.
Why do this?
Creators of Web content often want to know how their content is being used and by whom. It helps them assess the value of the content. They may provide you with additional information about the site, or what changes may be made in the future. They may ask you to help them evaluate their content or provide general feedback. They may also warn you if they are planning to make major changes to the site or restrict its use.
It does not take a lot of time to ask permission or contact people, and it might result in a new collaborative relationship.
1. What does it mean to seek permission for use of copyrighted materials?
Please see the section on seeking permission for more information on the permissions process.
2. What is the Copyright Clearance Center?
The Copyright Clearance Center (CCC) works with numerous publishers to help authors, educators, and others seek and usually pay for the right to use copyrighted materials. By representing numerous publishers, it provide a centralized service for seeking permissions to use the materials for classes, creating paper or electronic course packs, including materials in books or other published materials, and placing items on library reserves (paper or electronic). Individuals or institutions may set up accounts and requests may be made online.
The advantages of using this service are:
The disadvantages of using this service include:
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1. Are the restrictions on sharing files the same if the journal is an open access journals?
Open Access titles - those that provide free access immediately or after a certain period of time - are still copyrighted materials either owned by the publisher or the author. You should treat them the same way as other materials. The advantage of these titles is that they are free to everyone, so placing a link to the Website on your Web page or course site gives everyone access to this resource.
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2. What is the Creative Commons?
Creative Commons is an alternative to traditional copyright, designed to facilitate the sharing of materials, especially those on the Internet. The Creative Commons "contracts" allow you, the author, to retain copyright while giving permission to others to use the material for non-profit purposes. If you are placing materials on the Internet, you may want to select one of the Creative Commons contracts. By placing a CC symbol on your Web page, you alert others that you permit use of your materials.
When using materials, you may also want to check to see if the Creative Commons symbol appears on the Web page or document. This may permit you to freely use the work for educational, but not commercial purposes. Read the terms of the license to see what restrictions, if any, the author has placed on the work.
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