Using Content

Discover how copyright law affects the use of content in different circumstances, including when sharing online or distributing in print. 

Paper Coursepacks

A paper coursepack is a collection of journal, magazine or newspaper articles, book excerpts, and other materials selected by a course instructor for distribution to students as required or supplemental reading. While coursepacks can be produced by libraries and print services within an academic institution, they are also often produced by external vendors such as copy shops.

It is now well established that photocopying materials for academic coursepacks usually requires permission from the copyright holder or its agent. If the institution relies on external coursepack producers, it is critical to confirm that these vendors have acquired the appropriate copyright permission. Without this permission, both the copy shop and the academic institution that orders the coursepacks risk being found liable for copyright infringement.

E-coursepacks are online collections of journal, magazine or newspaper articles, book excerpts, and other materials that a course instructor gathers as required or supplemental reading for students. E-coursepacks, like their paper-based counterparts, require copyright permission from the copyright holder or its agent.

Obtaining Copyright Permission for Coursepacks
The course instructor, librarian, or the coursepack producer (copy shop) may be responsible for obtaining the necessary rights to include copyrighted material in a coursepack. The institution’s copyright compliance policy may offer the appropriate procedure. When requesting copyright permission for coursepack materials, the user should know all of the following:

• As much information as possible about your specific use (photocopy, intranet posting, or use in a learning management system).
• The length of time to use the materials.
• The number of students expected to have access to these works.

For those institutions that hold an Annual Copyright License for Higher Education from CCC, the legal or library team can verify license coverage using RightFind Academic, the online title search and verification tool that comes with the license. For non-licensees, individual permissions—also known as pay-per-use—can also be obtained on CCC Marketplace (marketplace.copyright.com).

Copyright permission for coursepacks is usually granted by the academic period. To reuse a coursepack in subsequent academic periods (e.g., semester, quarter, trimester, etc.), most need to obtain permission again. Many copyright holders provide time-sensitive permission because their own rights may be time-sensitive, and permission may not be theirs to offer at a future date.

Learning Management Systems

Learning Management Systems (LMSs) enhance the educational experience for both face-to-face and distance learning by making it easier for students and instructors to communicate, teach, and learn. While the value of an LMS is clear, there is much confusion when it comes to LMSs and copyright.

Many LMS vendors offer publisher-created content with their systems. They also offer schools and faculty the tools required for uploading and posting content—including readings and course syllabi—as well as other functionality, such as interactive student chat, instructor Q&A, student monitoring, testing and assessment, and grading and other class management functions. These easy-to-use tools allow instructors and others to upload information themselves, bypassing traditional controls for securing copyright permission and placing a new responsibility on instructors and IT departments.

Instructors, IT department personnel, staff members, and others who upload content to an LMS may believe that because the content is password-protected, copyright permission is not required or that someone else has obtained it prior to its use. This is not true. Unlike publisher-created content from the LMS vendor (who has already obtained the necessary permission), content that is uploaded by faculty members and others typically requires separate copyright permission.

When it comes to copyright, there is no difference between digital and paper-based environments. While LMSs often replace the use of coursepacks, e-coursepacks, classroom handouts, and library reserves and e-reserves, traditional copyright rules still apply. When permission is needed to use the content in paper format (such as the content available to multiple students in coursepacks), it is almost certainly needed to use the content in an electronic format (such as by making the content available to multiple students through an LMS).

To clarify the copyright requirements for an LMS, consider the following guidelines:

• Vendor-provided content—This is content developed by publishers and sold with, or in addition to, the LMS. Copyright licensing is usually included in the price of the content, therefore copyright requirements are likely to have been met (although it is always appropriate to confirm that fact with the LMS vendor).
• Content uploaded by faculty, staff, or others—This is content not provided by the LMS vendor that is added to the LMS. The institution must adhere to traditional copyright law in reproducing this content for use by multiple students. In general, if it’s necessary to obtain permission to use the content in paper format, it is likely that permission is needed to use it in electronic format as well.
• Library-provided content—This is content that is licensed by library or institution license and is available as part of its regular holdings or through subscriptions. Access to this content by faculty, students, and others is governed by the license for the content. It is important to review the current license carefully to determine what copyright permission is included, if any.

In 2002, the Technology, Education and Copyright Harmonization (TEACH) Act became law. The TEACH Act has expanded the scope of fair use for the performance and display of copyright-protected materials in a distance education environment, including by means of an LMS. Click here for more information on the TEACH Act.

DynaStudy vs. Houston Independent School District (ISD)

Beginning in 2013, teachers and other employees of the Houston ISD routinely took materials published by DynaStudy, a publishing house also located in Texas, such as notes, study guides, and activities, and made copies to share with their students. These materials were also posted on the district’s learning management systems. Although these materials had prominent copyright warnings on each of their pages, and although some of the teachers expressed concern about copyright, the administration authorized the activity and the practice continued, including stripping the copyright notices from the copies made. DynaStudy learned of the practice and offered the district a settlement which was summarily rejected. A lengthy legal battle ensued, culminating in a 2019 jury award to DynaStudy of $9.2 million for infringement, followed by a settlement paid by the school district of almost the same amount (in lieu of seeking an appeal).

Interlibrary Loan

Interlibrary loan (ILL) is a service that allows an institution’s library to borrow books, journals, and other copyrighted material from other libraries. This type of service has been extended at most institutions to include the making and sending of copies even where no actual “loan” is involved.

Section 108 of the Copyright Act allows ILL copying under certain terms and conditions. Specifically, Section 108 allows a qualifying library to copy and send to another library portions of copyrighted materials as part of its ILL service, provided the “aggregate quantities” of copied items received by the borrowing library do not substitute for a periodical subscription or purchase of a work.

Unfortunately, Section 108 does not define “aggregate quantities,” creating some ambiguity in interpreting the ILL provision. To help resolve this uncertainty, the National Commission on New Technological Uses of Copyrighted Works (CONTU) developed guidelines during the 1970s with specific allowable amounts for ILL photocopying. The CONTU guidelines are not law and have never been reviewed or revised despite the many changes in technology; however, they still serve as suggestions that help librarians interpret the ILL provision in the Copyright Act. They also help reassure copyright holders that ILL will not replace periodical subscriptions and book purchases by libraries.

Under the CONTU guidelines for delivering photocopies through ILL, the borrowing library tracks patron requests and, once the guidelines are exceeded, the borrowing library reports the usage and pays the required royalty fees.

ILL and Digital Content
ILL has evolved to become almost indistinguishable from ordinary “document delivery,” where individual articles are purchased in a business setting and delivered in PDF format, one at a time. As libraries move from a mix of print and digital to primarily digital collections, they rely on license arrangements with the individual publishers, authors, copyright holders, or aggregators. These individual licenses vary widely by content, publisher, type of use, and more.

The license accepted by the library is a binding contract. If the library has agreed to the limitations on the use of materials in ILL, then the library is bound by its agreement. Most libraries set internal rules for the kinds of licenses that they will accept, and it is important for libraries to be familiar with the terms of their various licenses. Some licenses are restrictive in terms of access to, and use of, the content by library patrons. For example, content may be accessible to patrons of the library only through a range of IP addresses or on a single workstation within the library. Once the material is accessed, some licenses state that it may only be viewed and printed by the patron.

Some libraries have been successful in negotiating broader terms of use into their licenses that expand the institution’s and patrons’ rights to use their digital collections. For example, some licenses may allow links to the material for e-reserve purposes or from a learning management system on campus. At the same time, these or other licenses may restrict other types of use, particularly interlibrary loan.

In yet other cases, the library may be allowed to use its digital collection to fulfill interlibrary loan requests, but only on a limited basis. For example, the library may be permitted to use content from an electronic journal to fulfill ILL requests, but only after the material is printed and scanned, or printed and then delivered to the patron via fax or mail. Publishers allowing delivery directly from the digital collection are rare and licenses may even restrict delivery to only faculty, staff, and students on the campus.

Reporting ILL
Many libraries report interlibrary loan transactions for copyright clearance at the end of the calendar year, but more frequent reporting makes it easier for the library to track its ILL program and helps ensure that permission is obtained and recorded on a timely basis. The responsibility for managing compliance falls on the borrowing library and, as long as the copyright transaction is reported on a reasonably timely basis, the borrowing library is fulfilling its copyright obligation.

Once copyright permission is granted, it is a standard practice to retain records for three years, although individual institutions’ record retention policies may dictate longer or shorter retention periods.

Library Services vs. For-Profit Information Services
The term ILL is deemed by most academic institutions to include the delivery of materials, such as photocopies and digital content, that are not returned to the lending library. Therefore, in the broadest sense, ILL has become a type of document delivery.

Traditionally, as its name indicates, ILL has been a library-to-library transaction. However, newer ILL systems that provide copies directly to end-users—especially corporate users—blur this distinction. Many libraries add to the confusion by performing ILL and document delivery in the same section of the library, often called the document delivery service (DDS).

In an effort to distinguish traditional, exempt library services (as defined by section 108 of the Copyright Act) from for-pay information services such as document delivery, copyright holders have suggested that, if a library charges for an ILL transaction, then the fees received create a commercial benefit for that library because they help pay the library’s costs, and the library should pay appropriate royalty fees. On the other hand, many libraries claim that fees received for ILL transactions result in no commercial gain because they cover just a portion of the copying, mailing, and staff costs.

Library Reserves

Reserves and electronic reserves (e-reserves) provide a way for instructors to share content with students. This content often includes class notes along with copyrighted materials such as books, book chapters, journal articles, and other works purchased by the institution’s library.

Traditional Paper Reserves
Materials placed on traditional reserve are available to students in paper form at the institution’s library. The librarian places materials on reserve without the need to obtain copyright permission. However, when multiple copies of these materials are made and placed on reserve, copyright permission is usually required.

While the Copyright Act does not specifically address library reserves, standards based on the Copyright Act’s fair use provision may be helpful. The American Library Association (ALA) has endorsed the following standards for sharing copyrighted material through paper-based reserves:

1. The amount of material should be reasonable in relation to the total amount of material assigned for one term of a course, taking into account the nature of the course, its subject matter, and level. See 17 U.S.C. § 107(1) and (3).
2. The number of copies should be reasonable in light of the number of students enrolled, the difficulty and timing of assignments, and the number of other courses which may assign the same materials. See 17 U.S.C. § 107(1) and (3).
3. The material should contain a notice of copyright. See 17 U.S.C. § 401.
4. The effect of photocopying the material should not be detrimental to the market for the work. In general, the library should own at least one copy of the work. See 17 U.S.C. § 107(4).

Electronic Reserves (e-reserves)
Unless it is covered by fair use, public domain or another specific copyright exception, anything posted to an electronic environment requires copyright permission prior to posting. The “first use is free” standard invoked by many libraries is not part of the Copyright Act or any subsequent rulings or provisions. In addition, digital licenses between content providers and academic institutions must be carefully reviewed to determine the extent material may be used in an e-reserve context.

Applying Fair Use in the Development of Electronic Reserves Systems from Several Leading Library Associations
The following guidelines were developed from a joint effort of and provided courtesy of: The American Association of Law Libraries (AALL), The American Library Association (ALA), The Association of College Research Libraries (ACRL), The Medical Library Association (MLA), and The Special Libraries Association (SLA).

1. The character of the use. Libraries implement e-reserves systems in support of nonprofit education.
2. The nature of the work to be used. E-reserve systems include text materials, both factual and creative. They also serve the interests of faculty and students who study music, film, art, and images. Librarians take the character of the materials into consideration in the overall balancing of interests.
3. The amount used. Librarians consider the relationship of the specific amount used to the whole of the copyright owner’s work. Because the specific amount of a copyrighted work that a faculty member assigns depends on many factors (such as its relevance to the teaching objective and the overall amount of material assigned), librarians may also consider whether that specific amount—or even the entire work—is appropriate to support the lesson or make the point.
4. The effect of the use on the market for or value of the work. Many libraries limit e-reserves access to students within the institution or within a particular class or classes. Many also use technology to restrict and/or block access to help ensure that only registered students access the content. Libraries generally terminate students’ access to electronic systems at the end of a relevant term (i.e., semester, quarter, or year) or after the students have completed the course.

Note:

• Many e-reserves systems include core and supplemental materials. Limiting e-reserves solely to supplemental readings is not necessary because potential harm to the market is considered regardless of the status of the material.
• Libraries may determine that if the first three factors clearly show fair use, the fourth factor does not weigh as heavily.

The following is a summary of e-reserve policies followed by many academic institutions possessing comprehensive copyright practices.

• E-reserve materials should be limited to small portions—usually single articles or chapters, or less—of copyrighted works.
• E-reserves should not be used as a substitute for the purchase of books or subscriptions, or other materials required for educational purposes.
• In a situation where a coursepack would require copyright permission, e-reserves in the same context (instructor, course) would also require copyright permission.
• If the material does not pass the fair use test in paper format, it will not pass the fair use test in electronic format.
• When switching from paper use to electronic use permission must be obtained for the material in the new format.
• Copies of materials placed on e-reserve should be made from originals—either printed materials or authorized copies—owned by the institution or instructor.
• E-reserves should be accessible (by password or other control) only by the students in a single class, faculty and staff associated with the class, and the administrator or IT person responsible for maintaining e-reserves.
• E-reserves for a particular class should be taken down or made inaccessible at the end of that term of the class.
• Materials on e-reserve should contain both the copyright notice from, and a complete citation to, the original material.

Using Digital Content Generally

Many people assume that online content, or content found on websites, is not subject to copyright law and may be freely used and modified without permission. This is not true. Others think that online content is not protected unless it carries a copyright notice. This is not true either.

Copyright law protects original works fixed in a tangible medium regardless of whether the work is fixed in digital or physical media. Digital or electronic content, such as e-books, photographs on websites, musical recordings, and electronic databases are subject to the same protections under the Copyright Act as non-digital, traditional, or analog works. In addition, there are specific provisions relating to digital content in the 1998 amendment to the Copyright Act by the Digital Millennium Copyright Act (DMCA). Therefore, permission is most likely required to use original works not subject to fair use or other exceptions and limitations.

Example Uses
There are reuses of copyright-protected materials that implicate copyright law, including:

Making a Digital Version of a Physical Work
Scanning or digitizing a work (such as an article, book excerpt, or photograph) produces a reproduction of that work. Prior to scanning a work, it is necessary to obtain permission from the copyright holder or its agent if the use does not fall within one of the law’s exceptions or limitations.

Reusing Content from a Website
Before reusing any content on a website, it is necessary to determine its copyright status and, if necessary, obtain permission from the copyright holder or its agent.

Posting Other Peoples’ Content Online
Posting copyright-protected content of others on a website requires permission from the copyright holder or its agent unless it falls within one of the law’s exceptions or limitations.

Forwarding Email
The copyright of any original material in an e-mail belongs to the author of the email in the first instance. The copyright in original material in an email attachment belongs to the author of the attachment. It may be necessary to obtain permission from the applicable copyright holder(s) or their agent(s) prior to forwarding an email or email attachment.

Photocopies

Most people don’t think twice about the copyright implications of photocopying articles, newsletters, or book chapters. Permission from the copyright holder may be needed to photocopy articles and other content for uses such as:

• Alumni relations and student recruitment handouts
• Interlibrary loan
• Classroom handouts
• Orientation, training, and other staff communications
• Student coursepacks

Photocopies for Students and Faculty
As noted in Exceptions for Libraries and Archives section of this guide, qualifying libraries are permitted to make reproductions for library users (e.g., students and faculty), provided the following criteria are met:

• The library or archive may make one reproduction of an article from a periodical or a small part of any other work.
• The reproduction must become the property of the library user.
• The library must have no reason to believe that the reproduction will be used for purposes other than private study, scholarship and research.
• The library must display the copyright register’s notice at the place where library users make their reproduction requests to the library.

A provision in the Copyright Act absolves libraries from infringement liability for photocopy activity on their premises by patrons at unsupervised, self-service photocopiers. This provision requires that libraries display a specific notice stating, among other things, that photocopying may be subject to copyright law. This notice is often displayed on a wall behind the photocopier or on the copier itself.

Photocopying by Students
Photocopying by students is subject to a fair use analysis as well. However, unlike classroom instructors who usually distribute copies in large numbers, students typically act only on their own behalf. As a result, their fair use analysis is likely to result in a different conclusion than that of a faculty member or instructor.

For students, a single photocopy of part of a copyrighted work, such as a copy of an article from a scientific journal made for research, would likely be considered fair use. Yet there are limits, even for students. For example, photocopying all the assignments from a book recommended for purchase by the instructor, making multiple copies of articles or book chapters for distribution to classmates, or copying material from workbooks, would most likely not be considered fair use under a reasonable application of the four fair use factors.

Classroom Handouts
In general, classroom handouts fall into two categories – spontaneous and planned – and each follows a different fair use analysis.

Spontaneous. These handouts are produced spur-of-the-moment for one-time use, such as when an instructor photocopies a journal article for use in that day’s class discussion.. This type of handout may be covered under fair use and would not require copyright permission for two reasons: 1) the unplanned nature of the use and 2) the work is so new that the instructor could not reasonably be expected to obtain permission in a timely manner.

Planned. This category includes handouts that are either used repeatedly or involve works that have existed long enough for the instructor to obtain copyright permission in advance. For example, if the instructor were to copy and reuse the same article in future semesters—or if he or she were to copy an article from a back issue of a newspaper or magazine—fair use would probably not apply.