Title 17 of the United States Code dealing with copyright was revised in April of 1999. For pertinent sections of Title 17 dealing with Copyright see Attachment 2.

The federal copyright statute governs the reproduction of works of authorship. In general, works governed by copyright law include such traditional works of authorship as books, photographs, music, drama, video and sculpture, and also software, multimedia, and databases. Copyrighted works are protected regardless of the medium in which they are created or reproduced; thus, copyright extends to digital works format. Copyrighted works are not limited to those that bear a copyright notice.

Two provisions of the copyright statute are of particular importance to teachers and researchers:

• a provision that codifies the doctrine of "fair use," under which limited copying of copyrighted works without the permission of the owner is allowed for certain teaching and research purposes; and

• a provision that establishes special limitations and exemptions for the reproduction of copyrighted works by libraries and archives.

The concept of fair use is necessarily somewhat vague when discussed in the abstract. Its application depends critically on the particular facts of the individual situation. Guidelines for classroom copying by not-for-profit educational institutions have been prepared by a group consisting of the Authors League of America, the Association of American Publishers, and an ad hoc committee of educational institutions and organizations. In addition, fair use guidelines for educational multimedia have been prepared by a group coordinated by the consortium of College and University Multimedia Centers (CCUMC). These guidelines describe safe harbor conditions, but do not purport to define the full extent of "fair use."

1. Fair Use for Teaching and Research The "Fair Use" doctrine allows limited reproduction of copyrighted works for educational and research purposes. The relevant portion of the copyright statue provides that the "fair use" of a copyrighted work, including reproduction "for purposes such as criticism, news reporting, teaching (including multiple copies for classroom use), scholarship, or research" is not an infringement of copyright. The law lists the following factors as the ones to be evaluated in determining whether a particular use of copyrighted work is a permitted "fair use," rather than infringement of the copyright:

   • 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.

   Although all of these factors will be considered, the last factor is the most important in determining whether a particular use is "fair." Where a work is available for purchase or license from the copyright owner in the medium or format desired, copying of all or a significant portion of the work in lieu of purchasing or licensing a sufficient number of "authorized" copies would be presumptively unfair. Where only a small portion of a work is to copied and the work would not be used if purchase or licensing of a sufficient number of authorized copies were required, the intended use is more likely to be found to be fair.

2. Course Reserves

   The "Fair Use" provision of the copyright statute is of particular importance to teachers and researchers and has direct implications for Lake Superior State University Library Reserve Operations. To help determine what constitutes "fair use" the four guidelines listed above should be used. Examples to consider when determining "fair use" is that spontaneous use is acceptable, but chronic use (year after year) would require permission. Copying only a small amount of a work would be another example of "fair use." Copying all of a work, even to put on the web, is not "fair use." In such an instance the copyright owner would need to be contacted for permission.

   In general, at the LSSU Circulation/Reserve Desk, one copy of an item will be accepted and put on reserve for a professor. Exceptions are made in some situations when 2 or 3 copies are allowed because of the size of the class. Original materials such as books and periodicals can be placed on Reserve so that students can make their own copies. It is the responsibility of the professor to obtain copyright permission for the material placed on reserve.

   These are the minimum guidelines, not the maximum, for applying the fair use doctrine. In the absence of a definitive conclusion, however, if the proposed use deviates from the guidelines, permission should be obtained to use the work from the copyright owner.

   For more complete explanations and guidance, check with the library.

Sec. 102. Subject matter of copyright: In general

• (a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

  (1) literary works;
  (2) musical works, including any accompanying words;
  (3) dramatic works, including any accompanying music;
  (4) pantomimes and choreographic works;
  (5) pictorial, graphic, and sculptural works;
  (6) motion pictures and other audiovisual works;
  (7) sound recordings; and
  (8) architectural works.

• (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

Sec. 106. Exclusive rights in copyrighted works

Subject to sections 107 through 120, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

• (1) to reproduce the copyrighted work in copies or phonorecords;

• (2) to prepare derivative works based upon the copyrighted work;

• (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

• (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

• (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

• (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

Sec. 107. Limitations on exclusive rights: Fair use

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 -

• (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

• (2) the nature of the copyrighted work;

• (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

• (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Sec. 108. Limitations on exclusive rights: Reproduction by libraries and archives

• (a) Except as otherwise provided in this title and notwithstanding the provisions of section 106, it is not an infringement of copyright for a library or archives, or any of its employees acting within the scope of their employment, to reproduce no more than one copy or phonorecord of a work, except as provided in subsections (b) and (c), or to distribute such copy or phonorecord, under the conditions specified by this section, if -

  (1) the reproduction or distribution is made without any purpose of direct or indirect commercial advantage;
  (2) the collections of the library or archives are (i) open to the public, or (ii) available not only to researchers affiliated with the library or archives or with the institution of which it is a part, but also to other persons doing research in a specialized field; and
  (3) the reproduction or distribution of the work includes a notice of copyright that appears on the copy or phonorecord that is reproduced under the provisions of this section, or includes a legend stating that the work may be protected by copyright if no such notice can be found on the copy or phonorecord that is reproduced under the provisions of this section.

• (b) The rights of reproduction and distribution under this section apply to three copies or phonorecords of an unpublished work duplicated solely for purposes of preservation and security or for deposit for research use in another library or archives of the type described by clause (2) of subsection (a), if -

  (1) the copy or phonorecord reproduced is currently in the collections of the library or archives; and
  (2) any such copy or phonorecord that is reproduced in digital format is not otherwise distributed in that format and is not made available to the public in that format outside the premises of the library or archives.

• (c) The right of reproduction under this section applies to three copies or phonorecords of a published work duplicated solely for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost, or stolen, or if the existing format in which the work is stored has become obsolete, if -

  (1) the library or archives has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price; and
  (2) any such copy or phonorecord that is reproduced in digital format is not made available to the public in that format outside the premises of the library or archives in lawful possession of such copy. For purposes of this subsection, a format shall be considered obsolete if the machine or device necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.

• (d) The rights of reproduction and distribution under this section apply to a copy, made from the collection of a library or archives where the user makes his or her request or from that of another library or archives, of no more than one article or other contribution to a copyrighted collection or periodical issue, or to a copy or phonorecord of a small part of any other copyrighted work, if -

  (1) the copy or phonorecord becomes the property of the user, and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research; and
  (2) the library or archives displays prominently, at the place where orders are accepted, and includes on its order form, a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation.

• (e) The rights of reproduction and distribution under this section apply to the entire work, or to a substantial part of it, made from the collection of a library or archives where the user makes his or her request or from that of another library or archives, if the library or archives has first determined, on the basis of a reasonable investigation, that a copy or phonorecord of the copyrighted work cannot be obtained at a fair price, if -

  (1) the copy or phonorecord becomes the property of the user, and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research; and
  (2) the library or archives displays prominently, at the place where orders are accepted, and includes on its order form, a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation.

• (f) Nothing in this section -

  (1) shall be construed to impose liability for copyright infringement upon a library or archives or its employees for the unsupervised use of reproducing equipment located on its premises: Provided, That such equipment displays a notice that the making of a copy may be subject to the copyright law;
  (2) excuses a person who uses such reproducing equipment or who requests a copy or phonorecord under subsection (d) from liability for copyright infringement for any such act, or for any later use of such copy or phonorecord, if it exceeds fair use as provided by section 107;
  (3) shall be construed to limit the reproduction and distribution by lending of a limited number of copies and excerpts by a library or archives of an audiovisual news program, subject to clauses (1), (2), and (3) of subsection (a); or
  (4) in any way affects the right of fair use as provided by section 107, or any contractual obligations assumed at any time by the library or archives when it obtained a copy or phonorecord of a work in its collections.

• (g) The rights of reproduction and distribution under this section extend to the isolated and unrelated reproduction or distribution of a single copy or phonorecord of the same material on separate occasions, but do not extend to cases where the library or archives, or its employee -

  (1) is aware or has substantial reason to believe that it is engaging in the related or concerted reproduction or distribution of multiple copies or phonorecords of the same material, whether made on one occasion or over a period of time, and whether intended for aggregate use by one or more individuals or for separate use by the individual members of a group; or
  (2) engages in the systematic reproduction or distribution of single or multiple copies or phonorecords of material described in subsection (d): Provided, That nothing in this clause prevents a library or archives from participating in interlibrary arrangements that do not have, as their purpose or effect, that the library or archives receiving such copies or phonorecords for distribution does so in such aggregate quantities as to substitute for a subscription to or purchase of such work.

• (h)
  
  (1) For purposes of this section, during the last 20 years of any term of copyright of a published work, a library or archives, including a nonprofit educational institution that functions as such, may reproduce, distribute, display, or perform in facsimile or digital form a copy or phonorecord of such work, or portions thereof, for purposes of preservation, scholarship, or research, if such library or archives has first determined, on the basis of a reasonable investigation, that none of the conditions set forth in subparagraphs (A), (B), and (C) of paragraph (2) apply.
  (2) No reproduction, distribution, display, or performance is authorized under this subsection if -

  (A) the work is subject to normal commercial exploitation;
  (B) a copy or phonorecord of the work can be obtained at a reasonable price; or
  (C) the copyright owner or its agent provides notice pursuant to regulations promulgated by the Register of Copyrights that either of the conditions set forth in subparagraphs (A) and (B) applies.

  (3) The exemption provided in this subsection does not apply to any subsequent uses by users other than such library or archives.

• (i) The rights of reproduction and distribution under this section do not apply to a musical work, a pictorial, graphic or sculptural work, or a motion picture or other audiovisual work other than an audiovisual work dealing with news, except that no such limitation shall apply with respect to rights granted by subsections (b) and (c), or with respect to pictorial or graphic works published as illustrations, diagrams, or similar adjuncts to works of which copies are reproduced or distributed in accordance with subsections (d) and (e).