Copyright and the Web
New media and the proliferation of electronic networks bring new challenges
to the copyright equation. Creators and users of copyrighted works must
extrapolate from general principles based on an understanding of the Copyright
Law for print media and exercise their best judgment when making the transition
to digital applications.
Copyrighted works are protected regardless of the medium in which they
are created or reproduced. Thus, copyright extends to both digital works
and works transformed into a digital format. The copyright protections
that we normally associate with print media also govern the use of text,
graphics, sound, and video on the Web. When you create original text,
images, and other content for a Web site, you are most likely creating
original works that are fixed in some tangible medium. A tangible medium
in the online world may be a Web server, floppy disk, or CD-ROM.
Because copyright protection vests automatically to any original work
that is fixed in a tangible medium, anything and everything on a posted
Web site could potentially be under copyright protection. Copyright law
protects not only the content of a Web site, but also the arrangement,
the graphics, and the selection of links. The decision to post material
on the Web and to give unrestricted access does not put it in the public
domain. Likewise, the lack of a copyright notice on a Web page does not
put it in the public domain. Therefore, you should assume that copyright
protects almost everything that you find on the Web.
Fair Use on the Web
Copyrighted material on the Web is also subject
to fair use and other limitations on the rights of the copyright
owner. Underlying copyright concepts that apply to traditional print
media are also applicable to works found on the Web. The use of
limited portions of Web material (printing, downloading, or communicating
electronic information) without obtaining permission from the copyright
owner may be allowable for nonprofit educational purposes.
Remember, however, all academic uses of materials on the Web are
not necessarily within fair use. The purpose of the use is only
one of four factors, all of which need to be evaluated and balanced
in making determinations about fair use (see Four
factors of fair use ).
Web Rules of Thumb
- Assume that copyright protects almost all works on the Web.
- Limit access to your Web site. If access is limited through
passwords or firewalls to only faculty and students, your fair
use argument will be stronger.
- Fair use generally favors nonfiction over fiction and other
creative works. The use of scientific or other fact-based works
is more likely to lean in favor of fair use than would the use
of excerpts from artistic or creative works.
- The shorter the excerpt the more likely it will be fair use.
Be sure that you use only the amount that serves specific educational
- Always credit the sources of your information. Even though
proper attribution does not make a use fair, attribution is important
for intellectual honesty.
- Find out if the author of a work (e.g., text, video, audio,
or graphic) provides information on how to use his or her work.
If explicit guidelines exist, be sure to follow them.
- When in doubt, ask the owner of the copyright for permission.
Keep a copy of your request for permission and the permission
- When building your own web site, include a copyright notice
in a prominent location and consider registering your work with
the U.S. Copyright Office if your site content and design is unique.
Most Web pages contain hypertext links. By clicking on a link, a Web
user can access a particular file anywhere on the Web. Most users consider
linking fundamental to the functioning of the Web and the equivalent of
a cross reference in a bibliography or a card catalog. Links do
not contain information themselves but are merely an embedded electronic
access that points to another Web location where information may be found.
There are several types of links, each with different copyright implications.
In general, permission is not needed for a regular text link to other
Web pages, providing the linked Web site does not contain unauthorized
copying of a copyrighted work. Linking activity that contributes or encourages
access to unauthorized copying is most likely a copyright infringement.
To reduce the likelihood of any legal problems, you may want to consider
including a disclaimer on your home page, stating that your site does
not guarantee or endorse the information available at these linked sites.
A text link that bypasses a Web site's home page and instead goes to
another page within that site is often called a "deep link." Many copyright
experts believe that text-only deep linking is not a copyright infringement.
There is no law prohibiting deep linking, and no U.S. court has prohibited
the practice. Nevertheless, you should be cautious about using deep links
that might interfere with advertising, especially deep linking to advertising-rich
commercial sites. If a commercial Web site has a no linking policy or
says that deep links are not allowed, it's wise to ask for permission
before deep linking.
Other common types of linking activity involve importing content from
one Web site into another Web site. "Framing" is the practice of importing
information from another page for display into a special frame on a Web
site. "Inlining" content pulls certain elements from a Web site, such
as an image, from one Web site and incorporates them into another Web
site. These two types of inline linking are more likely to violate copyright
as they create a potential for creating a derivative work and could be
viewed as modifying the appearance of the linked site and cause confusion
as to the association between the two sites. While case law hasn't developed
definitive rules on these types of internal links, you should ask for
permission before framing and inlining content from another web site.
Generally speaking, you should try to avoid using frames and inlining
in a manner that might cause confusion to the viewer and avoid using deep
links that might interfere with advertising.
Distance Education (TEACH Act)
On November 2nd, 2002, a new law called the "Technology,
Education and Copyright Harmonization Act" (The TEACH Act), became
effective which amends Section
110 (2) of the U.S. Copyright Act and establishes new standards
for copyright and distance education. The TEACH Act redefines the
terms and conditions on which accredited, nonprofit educational
institutions in the U.S. may use copyprotected materials in distance
education without permission from the copyright owner and without
the payment of royalties. Prior to the new amendment, Section 110
(2) severly restricted the types of works that could be performed
in the course of instructional transmissions in distance education.
The new law expands the categories of works that can be performed
in distance education to include "reasonable and limited" portions
of most works, with the exception of works produced primarily for
the education market.
Additionally, the law also removes restrictions on the locations of receiving
sites, permits the temporary storage of copyrighted materials for remote
asynchronous performances and displays, and allows institiutions to digitize
works to use in distance education under certain circumstances. For more
information on applying the TEACH Act in higher education, see TEACH Guidelines.
While the TEACH Act expands the scope of educators' rights
to perform and display works for distance education, the new law
still contrasts markedly from the "classroom exemption" provision
110 (1) that provides an absolute exemption to the exclusive
rights of the copyright holder for perfomances and displays in face-to-face
classroom instruction. In a classroom environment an educator may
show or perform any work regardless of format with no permission
required and without paying royalites. Under the new law, the same
educator would have to scale back some of those materials to show
them to distant students.
The TEACH Act offers many improvements over the previous version of Section
110 (2), but the law requires universities to meet numerous conditions
to safeguard against unauthorized and inapproporiate use of copyright
Resources on Copyright and the Web