Because these are the creator’s rights, the creator can decide who else can do these things, or the creator can assign her rights to someone else. Further, the law says how long the creator has these rights (as opposed to when the work belongs to everyone – Public Domain) and the law grants certain exceptions to the creator’s rights – the most important for our purposes being Fair Use.
How does a copyright holder grant rights or permissions to another person to use his/her work?
The most common way a creator gives rights is through a license – “open access” and “freely available online” are simply versions of a license (read more about Open Access below). A license grants permission to use the works and sets the terms of use. The most important take-away on licensing is in order to grant a license you must have the “right to copy” – the copyright – i.e. the right to grant others reproduction, derivation, distribution or performance. If you don’t have the right in the first place then you are not a “licensor” you are a pirate or a thief.
What does it mean if something says it is "Open Access"?
According to the Director of the Harvard Open Access Project, Peter Suber, "Open-access (OA) literature is digital, online, free of charge, and free of most copyright and licensing restrictions. What makes it possible is the internet and the consent of the author or copyright-holder." You can read Suber's brief definition of OA literature here, or read the slightly longer version here. Each year, there is also an Open Access Week promoting OA resources and the philosophy of open access to information. Open Access does NOT mean that the items are without copyright, or that there are no limitations on their use. Often, OA resources are governed by Creative Commons licenses, which you can read more about on the Creative Commons website.
Can I use the same article(s) each semester on eLearn without copyright permission, if it was fair use the first time?
The answer to these questions starts with understanding what Fair Use is. In a nut shell, fair use grants a privilege to non-creators to use copyrighted works without permission. In order for a “use” to be “fair” there are four factors which need to be considered; for our purposes, in simplest terms the four factors are as follows:
EVERY time you use a work without permission you must answer these questions. Notice that nowhere within the doctrine of Fair Use does it limit your fair use based on how many times you use a work. So where did this notion come from? – the concept of “spontaneity” comes from a negotiated set of rules that never became part of the law called the “Classroom Guidelines.” This document also gave us concept of “brevity.” As long as you conduct a reasonable analysis under the Fair Use factors, there is no need to adhere to the pro-publisher concepts of spontaneity and brevity. For example, the most restrictive safe-harbors say that a professor can use an article once without permission, but after that they need permission, and conservative estimates of "brevity" generally state that you can use no more than 10-15% of a published book. More pro-user definitions of Fair Use argue that articles can be reused under Fair Use and that a larger percentage of a published book can still fall under the Fair Use exception. However, there is no hard and fast rule when it comes to Fair Use, which is why users must conduct an analysis each time they use a copyrighted work.
Does Stonehill have a "best practice" for Fair Use?
Here is one example of a suggested "best practice": the occasional use of the same article is acceptable if when analyzing Fair Use under the four factors the professor determines that her use:
If, however, she knows that intends to use every semester, or every time the class is taught, permission should be sought.
If I think I need copyright permission, what are my next steps?
Contact the library! We work with the Copyright Clearance Center both to determine whether or not copyright permissions are needed, and to obtain and pay for permissions when they are required. If you believe you need copyright permission, or if you are not sure and would like assistance making that determination, email Sue Conant or call 508-565-1289.
Am I able to freely use my own publications?
Generally yes, but you need to be cognizant of any rights you may have given up, and you also need to be cognizant of your use of other’s work within your work.
What kind of a take-down/due diligence statement should I include on course sites outside eLearn?
Remember that a take-down notice DOES NOT substitute for conducting a Fair Use analysis of the materials you've posted or linked to online. However, having a take-down statement can also help copyright holders to get in touch with you and is a mark that you have done your due diligence in setting up your website. In many cases, you are more likely to receive a take-down notice (or "cease and desist" letter), that to immediately face litigation from a copyright holder. Below is suggested language from the Office of General Counsel:
“NOTICE: As a member of the Faculty of Stonehill College I have developed this course for the purpose of providing an outstanding academic experience for my students. This course site contains copyrighted material, the use of which has not always been specifically authorized by the copyright owner. Before posting any materials to this site I engaged in a Fair Use analysis of the materials and I believe my use is consistent with the exceptions afforded to me under Section 107 of the US Copyright Law. Should you have any questions about my use of any of the materials on this site or disagree with my Fair Use assessment, please contact me directly at <email> or you may contact the Stonehill College Office of the General Counsel at tflynn@stonehill.edu.”
What if I want to provide my students with less expensive ways to access course materials?
What do I do if I needed copyright permission, and the copyright holder doesn’t grant it?
Fair use still applies, so you may want to consider using a smaller portion of the work more consistent with a fair use. If it is a critical piece of information then you have a couple of choices:
If you have a question about copyright, and you couldn't find the answer in this LibGuide, let us know! Email librarydeskgroup@stonehill.edu and we will do our best to answer your question or find the resources you need.
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