While copyright infringement and plagiarism are both prohibited and often overlap, they are different. Plagiarism is the act of falsely claiming to be the author of material actually authored by another. That claim may be overt or implied (by failing to cite the actual author) and may involve an entire work or a portion of one work incorporated into another work. Copyright infringement occurs when a person engages in unauthorized use of another’s copyrighted material in a manner violating the copyright owner’s exclusive rights, regardless of whether proper attribution is given.
Not all works are copyright protected, and all works will eventually end up in the public domain. The public domain comprises a body of knowledge and innovation over which no person or other legal entity can assert proprietary rights. Certain federal (not state or local) materials and databases of facts do not receive copyright protection, e.g., military journalism, federal court opinions, committee congressional reports and census data. Because they exist within the public domain, they can be freely used without permission. Works also fall into the public domain once the copyright in a work expires. Works published in the United States prior to 1923 are not covered by copyright and exist in the public domain. Works published after 1923 through 1978 are protected by copyright for 95 years from the publication date. After 1978, copyright protection exists for the life of the author plus 70 years, or for a work of corporate authorship or work made for hire, the shorter of 95 years from publication, or 120 years from creation. For more specific information and a helpful chart, see “When Works Pass into the Public Domain” prepared by Laura N. (Lolly) Gasaway, Associate Dean for Academic Affairs, University of North Carolina School of Law. Proper attribution should still be given to authors of public domain works even though public domain works may be used without permission. It is important to note that the mere appearance of a work on a website does not necessarily indicate that the work is in the public domain or that permission has been granted to use the work other than for individual use.
Limitations on Exclusive Rights (Exceptions to Infringement)
There are important limitations on exclusive rights of copyright holders. These limitations may permit some use of copyrighted works without permission of the copyright holder. Some of the limitations that are significant in the higher education environment are the: (1) fair use exception, (2) library exception, (3) face-to-face teaching exception, (4) distance learning exception, and (5) disabilities exception. For a description of each, see below.
Section 107 of the Copyright Act provides limitations on the exclusive rights of copyright holders. Those limitations are commonly referred to as “fair use.” The test applied to determine whether an otherwise infringing use comes within the fair use exception is the “four factors” test.
“Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall 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; and
- the effect of the use upon the potential market for or value of the copyrighted work.”
The fair use exception to copyright is not a blanket exception for educational use. The four-factor test must be used to determine whether fair use applies. Unfortunately, the test is vague and fact-dependent. To determine if a potential use of a copyrighted work falls within the fair use exception, instructors should visit the Fair Use Checklist at Purdue University’s Copyright Management Center. Instructors may also consult with Department Chairs, Deans, UNIT or the Office of the Vice President and General Counsel.
Exceptions for Libraries
Section 108 of the Copyright Act provides limitations on exclusive rights of the copyright holder in favor of libraries. This section permits certain libraries and archives to reproduce and distribute portions of copyrighted works on a limited basis. With that permission comes responsibility. Libraries must include copyright notices and seek to prevent infringement by its patrons.
To qualify for the infringement exemptions with respect to teaching in the digital distance education classroom, faculty must:
(i) provide notice to students that materials used in connection with the course may be subject to copyright protection; and
(ii) use technology to reasonably:
a. limit access to copyrighted works to students currently enrolled in the class;
b. limit access only for the time period necessary to complete the class session;
c. prevent further copying of copyrighted works; and
d. prevent further distribution of copyrighted works.