The framework described below is adapted from the original by Kevin Smith and Lisa Macklin and is used under a Creative
Commons Attribution-ShareAlike 4.0 International License.

One of the most difficult issues when faced with a copyright problem is simply knowing where to begin and figuring out which parts of the legal rules and doctrines apply to this specific problem.  To deal with this uncertainty, try working through the following five questions, in the order they are presented.  They are simple questions, but they might not be easy to answer.  All of the material we cover in this course is relevant to addressing one or more of them.  But by working through them in order, it is possible to identify which parts of copyright law apply to the specific problem you need to address.

The five questions that form this framework for copyright analysis are:

1. Is the work protected by copyright?
2. Is there a specific exception in copyright law that covers my use?
3. Is there a license that covers my use?
4. Is my use covered by fair use?
5. Do I need permission from the copyright owner for my use?

Let’s look at each question in more detail.

1. Is the work protected by copyright?

Remember from week 1 that, while copyright is far reaching and long lasting, it doesn’t apply to everything.

• Is the work I want to use protected by copyright, or is it in the public domain?  Try using this Digital Slider (flash required)  to determine if a work is still protected by copyright.
• If I created it, do I still own copyright, or did I sign over rights for my intended use to a publisher or other entity?

2. Is there a specific exception in copyright law that covers my use?

We did not address the specific exemptions in copyright law in this class, because they are very specific indeed.  I’ll describe them below just so you know that they exist, but unless you work in education or libraries, it is unlikely that these will apply to your situation.

• In Class Performance: In a face to face teaching situation at a nonprofit educational institution, both students and teachers may display or perform a work (text, video, images, etc.)   This must be done in a classroom or other location devoted to instruction, and the work must be lawfully made (no bootlegs or counterfeits.)
• TEACH Act: Authorizes some online performances and displays for purposes of distance education.  This is a complicated law with many provisions and covers only non-dramatic literary or musical works, and allows amounts comparable to what is typically displayed in a live classroom setting.”
• Library Exception: Libraries may make up to three copies of works for preservation or security purposes.  If the copies are digital they may not be placed on the web, and may be available only on library premises.

3. Is there a license that covers my use?

• Is there a Creative Commons license 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?  Review the material from week 4 and week 5 to refresh your memory on Creative Commons licenses.
• 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.

The library has subscriptions to a wide variety of content (journal articles, ebooks, videos, audio) that you can access and make limited use of.  Really, when we say that the library “subscribes” to these things, we mean that the library pays for licenses for students and faculty affiliated with our school to be able use the licensed materials.  Usually these licenses includes creating copies for personal, educational use only.

4. Is my use covered by fair use?

• Remember from week 2, the four factors are:
  • 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.

• Questions for transformative fair use under factor one are:
  • Does the copyrighted material help me make my new point?
  • Will it help my readers or viewers get my point?
  • 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?

• If so, first locate the copyright owner and fully explain your intended use in your permission request.  Review week 3 for information on getting licenses to use others’ copyrighted works.
• If you get no response or the answer is no, reconsider your use of this work to see if you can make a fair use, or consider using
  another work.

The framework described above is available in a variety of printable formats, including the original:

• https://lib.calpoly.edu/wp-content/uploads/2015/08/copyright_five_questions.pdf 
• http://krex.k-state.edu/dspace/bitstream/handle/2097/34609/Analyzing-Copyright-Infographic.pdf?sequence=1&isAllowed=y 

Risk Management

There will inevitably arise situations where the answers to one or more of the above questions is not clear.  For example, you might think you have a pretty good, but not airtight fair use case.  You may not be able to find the copyright holder to ask permission.  You may not have enough information about a work to determine whether or not copyright even applies.  In these situations it can help to analyze the risk you take if you move forward with your use.

This seems like another good time to remind you that I am a librarian and not a lawyer.  This is not legal advice, just information for educational purposes.  Here are some things to think about:

• What do you know about the creator of the work?  Are they relatively well-known, and easy to contact?  Have they given any signals that they are likely to enforce their copyrights?  If so, the risk goes up.  A photographer who makes a living off their images is likely to be on the look out for copyright infringement of their work.  A large company may have sufficient resources to monitor for infringement of their copyrighted works.  Whereas using a work that is out of print and where the copyright holder can’t be traced is a lower risk activity.
• Where are you planning to share or distribute your work that incorporates the work in question?  If you are going to post it on the web, consider how easy it is to use Google to discover infringing material (and not just for text, but also for images – there is such a thing as Google Reverse Image Search.)  If you are using the work in a more limited environment (a setting where only a small number of people have access to your work for example), the risk of discovery is lower.
• What is the embarrassment factor if the copyright holder objects to your use?  For example, if you are doing work for an employer, and you use someone else’s work in a way that results in the company receiving a take down notice, your employer would probably not be too happy with you.
• How difficult would it be to take down all the infringing material?  If the use is on a website it’s relatively straightforward to remove the offending content.  But if you have widely distributed physical copies it could be a much larger undertaking to take the content down.
• What level of risk are you personally comfortable with?  If getting a take down notice would be very stressful for you or if you would be very disappointed if you had to remove your work maybe you should not proceed with the use.
• What is your budget?  It is possible that a copyright holder might propose to charge you for your use if it is discovered.  Are you prepared to compensate the copyright holder in that case?

There are some tools available online that can help you weight the risk in using a particular work without permission the copyright holder.  Try out this Risk Management Calculator.

Another important risk management strategy is to keep good records.  If you have received permission for your use, of course you want to keep copies of those licenses, or of the emails or letters if your arrangement was more informal.  But if you have made attempts to identify and contact the copyright holder, even if you were unsuccessful, keep records of this as well.  If you ever do end up in court to determine damages, the judge will look more favorably on your case if you can show you made a good faith effort to request permission.