Copyright Corner. Busting Common Myths about Copyright

by Gretchen McCord, January 2019

I've been teaching copyright workshops for more than twenty years. Not surprisingly, I hear many of the same misunderstandings over and over again. I like to call them "myths": widely held but false beliefs that seem to perpetuate themselves.

Myth #1: If I'm using it for a class, it's fair use.

Busted: Not necessarily. As you know from my last column, no single circumstance determines whether a use is fair. The fair use analysis must take into account all four fair use factors, only one of which considers whether the use is for educational purposes:
1. Purpose and character of the use;
2. Nature of the work used;
3. Amount and substantiality of the portion being used; and
4. Effect of the use on the potential market for the work.

Myth #2: It's OK to post materials in a course/learning management system if access is restricted to students enrolled in that class.

Busted: Not necessarily. No law or regulation specifically governs this situation. You must first ask yourself whether the work is subject to a license; if so, the license dictates how you may use the work. If not, you must depend on fair use, which means going through the four-factor assessment. Restricting access to students in the class is a big help, but doing so doesn't allow you to use anything and everything.

Myth #3: If I make changes to a work protected by copyright, or just use a small portion of it, I'm not infringing the copyright.

Busted: Copying is copying. If you copy from a work but make changes, you have still copied and are potentially infringing the copyright owner's right to reproduce the work. By making changes, you may also be infringing the owner's right to create derivatives (works based on the original). Likewise, copying only a small portion of a work does not move the copying out of the realm of infringement. If what you've copied is "substantially similar" to the original work, you may have infringed. The amount you copy plays a role in the fair use analysis, but it is not determinative.

Myth #4: If I give credit when I use something, I don't need to get permission.

Busted: Although plagiarism often occurs together with copyright infringement, it is an issue of ethical behavior, not a legal issue. Citing something you quote is the "right" thing to do, and it can indicate that you are trying to "play by the rules," but copyright law does not require citing a quoted work, and citing a work does not in and of itself have legal implications. Think of it like this: If you make 50,000 copies of Harry Potter and the Goblet of Fire and sell them online, would leaving J. K. Rowling's name on the cover make it legal?

Myth #5: When my faculty or staff write or create something, they own it.

Busted: It depends. The work-made-for-hire doctrine states that when a work is created by an employee (as opposed to an independent contractor) acting in their line of employment, the employer is deemed to be the author and therefore the copyright owner of the work. However, if the employee created the work completely on their own (e.g., at home, on their own time, using their own resources) and doing so was not part of the employment, the work is not a work-made-for-hire, and the employee owns the copyright. This is true even if the subject matter of the work is the expertise for which the employee was hired.

Works created by independent contractors are treated differently. No matter how much your institution pays a contractor to create a work, the institution does not own the copyright in the work unless a written document signed by the parties says so.

Myth #6: Making digital copies of analog works (like digitizing VHS tapes) doesn't infringe copyright, because I'm only changing the format of the work.

Busted: A copy is a copy is a copy. Generally speaking, format or medium doesn't matter. If you make a copy of a work, you potentially infringe the copyright in the work, regardless of the format or medium. However, the Copyright Act does allow digitizing print or audiovisual works in certain limited circumstances. Section 108(b) and (c) allow a library or archives to make copies for archival purposes within significant limitations. The TEACH Act allows making digital copies of either digital or analog works for purposes of use in distance education, but again, only under very limited circumstances. Section 121 allows making digital copies if the sole purpose is for use by the blind or otherwise disabled and other conditions are also met.