Scholarly Communication Services Toolkit

A Framework for Analyzing Any Copyright Question

One of the most difficult issues for library staff, when faced with a copyright question, is simply knowing where to begin -- which parts of the legal rules and doctrines apply to this specific problem. To deal with this uncertainty, we suggest working through the following five questions in the order they are presented. They are simple yet not easy to answer. By working through them in order, it is possible to identify which of the parts of copyright law apply to the specific question that you need to address (Smith, Macklin & Gilliland, 2012).

Recommended:  Gather information about the work to be used, and then proceed to the five questions. 

Optional:  This form can be used for recordkeeping for the library staff/faculty and the person with the question.

Information about Copyrighted Work – Get as much information possible.

• Name/ Citation of Copyrighted Work:
• Type of Work (Book, chapter, journal article, sound, image, video, etc.):
• Format (Print; Digital file - .pdf, .mp3, etc.; Streaming video; DVD; etc.):
• Copyright Holder/ Owner:
• Describe course/ project and when the work will be used:
• Describe why and how much of the work will be used:
• Describe where the work was viewed or how/ where it was acquired:

Five Questions – Framework for Copyright Analysis

___      1.   Is the work in question protected by copyright?

a.    Is the work I want to use protected by copyright, or is it in the public domain (https://guides.library.cornell.edu/copyright/publicdomain)?

b.    If I wrote it, do I still own copyright, or did I sign over rights for my intended use to the publisher?

___      2.   Is there a specific exception in copyright law that covers my use? (Fair Use will be covered in #4.)

a.    Is my intended use covered by a specific exception to the exclusive rights in the copyright law, such as the one for libraries or for classroom performances and displays (https://libguides.fau.edu/copyright/law-exceptions)?

___      3.   Is there a license that covers my use?

a.    Is there a Creative Commons license (https://libguides.fau.edu/creative-commons) attached to the work? If so, can I comply with the terms of the license, or can I find another useful work that is CC-licensed?

b.    If affiliated with an educational institution, is there a license that governs how the copyrighted material I’m accessing through my library can be used? If so, can I comply with the license terms? If you are uncertain, your librarian should be able to help you.

___      4.   Is my use covered by fair use (https://libguides.fau.edu/fair-use)?

a.    Four factors to evaluate and balance:

i.      the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

ii.    the nature of the copyrighted work;

iii.   the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

iv.   the effect of the use upon the potential market for or value of the copyrighted work.

b.    Questions for transformative fair use under factor one (purpose and character) are:

i.      Does the copyrighted material help me make my new point?

ii.    Will it help my readers or viewers get my point?

iii.   Have I used no more than is needed to make my point? (Is it “just right”?)

___      5.   Do I need permission from the copyright owner for my use?

a.    If so, first locate the copyright owner and fully explain your intended use in your permission request (https://libguides.fau.edu/copyright/request-permission).

b.    If no response or the answer is no, reconsider your use of this work to see if you can make a fair use consideration, or consider using another work.

Sources: 

Smith, K., Macklin, L.A., & Gilliland, A. (2012). Copyright for educators and librarians [Online course]. Coursera. https://www.coursera.org. Permission to reuse by CC-BY-SA license.

10/2022, Reviewed 05/2022.

Coaching Copyright

Providing copyright assistance is like giving a specialized reference interview where the facts of a given scenario need to be considered.  This helps a patron evaluate their options, strategy of using a work, and risk which help them find a situationally appropriate direction.  The 'coaching' reference enters because coaching focuses on a patron's particular copyright situation which may differ from others we may encounter.

Although it's important to educate patrons on copyright, it's equally important to provide them with pertinent information and to not inundate them with nuances of copyright law.  With that, attorneys (and some librarians who are also attorneys) created a 5-step way of approaching copyright questions, known as a Framework for Analyzing Any Copyright Question.

Handouts and Checklists