Copyright: Copyright Inquiry Framework

One of the most difficult issues for educators, when faced with a copyright problem, is simply knowing where to begin- which parts of the legal rules and doctrines apply to the specific problem?

To deal with this uncertainty, work through the following five questions, in the order they are presented. They are simply questions but may not be easy to answer. By working through them in order, it is possible to identify which of the parts of copyright law apply to the specific problem/inquiry or fact pattern that needs to be addressed.

The five questions that form this framework for U.S. copyright analysis are:

1. Is the work protected by copyright?
   • Is the work I want to use protected by copyright? It must meet all three of the following conditions to receive copyright protection:
     • creative,
     • original, and
     • fixed in a tangible medium of expression (e.g., digital or physical).
   • If it meets all three of the above conditions, is it in the public domain?
   • If I wrote it, do I still own the copyright or did I sign over rights for my intended use to the publisher?
2. Is there a license that covers my use?
   • Is there a Creative Commons license attached to the work? If so, can I comply with the terms of the license or can I find another useful work that is CC-licensed as an alternative?
   • Is there a library license that governs how the copyrighted material I'm accessing through my library may be used? If so, can I comply with the license terms? If you are uncertain, the library can assist you with license terms and permalinks.
3. Is there a specific exemption in copyright law that covers my use?
   • Is my intended use covered by a specific exemption to the exclusive rights in the copyright law, such as the ones for libraries or for face-to-face classroom performances and displays?
4. Is my use covered by fair use?
   • Evaluate your use with the four factors of fair use:
     • the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
       • Uses that are more transformative (such as parody) are more in favor of fair use- questions for transformative fair use under factor one:
         • Does the copyrighted material help me make a new point?
         • Will it help my readers or viewers get my point?
         • Have I used no more than is needed to make my point (is it "just right")?
     • 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.
5. Do I need permission from the copyright owner for my use?
   • If so, first locate the copyright owner and fully explain your intended use in your written permission request.
   • If no response or answer is "no," reconsider your use of this work to see if you can make a fair use (e.g., use less of the work and re-evaluate for fair use), or consider using an alternative work.

Adapted from Copyright 2014 Kevin Smith and Lisa Macklin; this work is licensed under a CC-BY-SA 4.0 International License

Copyright questions can seem complicated. Copyright inquiries are dependent on the facts of each individual case. "That depends" is a common phrase repeated by copyright-aware professionals when approached with a copyright question.

Follow this step-by-step guide to narrow down the things you need to consider when using materials and to show good faith efforts to determine if your use is permissible.

Begin with the first question and proceed through all seven.

• STEP 1 -- Consider whether the work is protected by copyright or is in the public domain
• STEP 2 -- If you’re the author, ensure you didn’t transfer your rights to a publisher
• STEP 3 -- Consider whether the work has been licensed in a way that covers the use you wish to make (e.g., Creative Commons)
• STEP 4 -- Consider whether the work has been licensed by your institution in a way that permits (or prohibits) the use you wish to make
• STEP 5 -- Consider whether there is a copyright law exception covering the use you wish to make
• STEP 6 -- Consider whether the use you wish to make is covered by fair use
• STEP 7 -- Consider seeking permission from the copyright owner

Places to look for copyright information include:

• Front Matter of a Book (the first few pages before the main text)
• Captions for published images, maps, and pictures
• "Copyright" or "Permissions" page on a website

Copyright information in most cases is readily available. This information should tell you whether the content is copyrighted and help you determine whether permission is required.

From Davidson College Library Research Guide licensed under a CC-BY-SA 4.0 International License.

From Regents of the University of Minnesota and licensed under CC BY NC 

From Scholarly Commons @ MU and licensed under Attribution-NonCommercial 4.0 International License (CC BY-NC 4.0)