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Ideas are not copyrighted, but the copyright law protects the expression of those ideas captured in writing, video, audio, or other formats. The old rule of copyrighted materials containing a copyright symbol is gone. Since January 1, 1978, anything set into a physical format is protected under the copyright law. Physical formats include slides, handouts, illustrations, video and audio recordings, Web pages, computer memory, electronic presentations, photos, artwork, books, journals, and personal notes. 

Anything published before 1923 is in the public domain and can be used without permission. 

What does it mean when something is in the public domain? May I freely use it? The copyright law does not protect material in the public domain. The kind of materials found in the public domain includes US government documents and works whose copyright terms have expired. US government documents are not covered by the copyright law. Therefore, government documents are usually in the public domain, unless they specifically state restrictions on their use. Documents created by state governments and the governments of other countries, however, may be copyrighted. While information in the public domain is freely available, user fees may be charged to recover the costs of reproducing information and making it available. When copyrights expire, the works pass into the public domain and are freely available for use. However, for works published after 1923, but created before 1978, convoluted rules concerning copyright term apply.

• As noted above, assume that everything published before 1923 is in the public domain. 
• Use US government materials that have no copyright restrictions (in the public domain). 

Like other materials, Web pages and their content are protected under the copyright law. Many people who have Web content expect others will use it but not for commercial purposes.

Suggested Practices: 

• Check the Website for statements about restrictions on use. 
• Give attribution—state the source of information (Website name and URL). 
• Check to see if the site has a Creative Commons license (www.creativecommons.org). 
• Link to the site instead of copying the content or placing the content on your Website.

If you answer yes to the following questions, you may be covered under fair use; but if you answer no to one of them, you will need to carefully weigh the fair use criteria: 

• Are you using the material for nonprofit educational purposes? 
• Are you teaching or presenting for a nonprofit group? 
• Is this the first time you have used the materials? 
• Are you using selected images and portions of the text and not substantial amounts of one article? 
• Is the material you seek to copy not a commercial “consumable” item designed specifically for the course, such as a workbook, exam questions, or a study guide?

 If you answered no, then you may need to consider seeking permission or paying the royalty fee for using the copyrighted materials. If your use is covered under fair use, then you do not need to seek permission or pay a royalty fee for using the material the first time. However, under the Classroom Guidelines repeated use for the same class or program may not be covered and you may need to seek permission to use the materials and pay a royalty fee.

Is 10% or 25% of a work too much or too little? The Classroom Guidelines have precise formulas for prose, but no similar guidelines for fact works like databases exist. As a general rule, the less you use, the better. 

Under the Classroom Guidelines, repeated use of a copyrighted work probably exceeds fair use. Restating the information in your own words or creating your own table of data is not a violation of copyright, but you should cite the source of the information to avoid charges of plagiarism. If you use an online article that is part of your library’s electronic subscriptions, you can repeatedly link to it without seeking permission or paying fees. Your license may also permit reproduction of the article. If you give out a photocopy of an online article or book chapter, you fall under the same constraints as a paper copy under the fair use guidelines. 

In many cases, your work as a teacher or presenter while at an educational or nonprofit institution is covered under fair use. Nonprofit educational activities include teaching residents, students, and fellow clinicians. The same is true for continuing educational activities sponsored by the educational institution for its staff and physicians. Follow suggested practices for using materials under fair use. If the continuing medical education (CME) or continuing education (CE) program looks like a commercial event or large revenue generator, you may need to seek permission and pay a royalty fee. 

 If you can make a photocopy for personal use, you may also scan a copy of an article or book chapter for personal use. Copyright restrictions, and fair use, apply in the digital world in the same manner as they apply in the analog world. Thus, under fair use, you might be able to scan an article for a class and post it on a password-protected Website for your class one time. As a practical matter, this would be equivalent to handing out a hard copy of the article to every class member. However, you should not post the article to a publicly accessible Website, because this could lead to much wider distribution. Also you should not use the scanned item repeatedly if you would not use a hard copy repeatedly. 

Suggested Practices 

• Scan one copy for your personal use. 
• Post the file for students on a password-protected Website for first-time use. 
• Ask the library about its reserve (electronic or paper) services. 
• Consider seeking permission if you want to use the article repeatedly on the class Website. 

 Open access journals—those that provide free access immediately or after a certain period of time—are still copyrighted materials that are either owned by the publisher or the author. Treat them the same as other materials. The advantage of these journals is that they are free to everyone, so placing a link to the Website gives everyone access. 

Suggested Practices 

• Visit the publisher’s Website to determine policies and restrictions on downloading or distributing files of journal articles. 
• Instead of making copies in paper or digital format, give students and colleagues the uniform resource locator (URL) link. 
• Put links to articles on your course site for others to use. 

It is important to remember that the Classroom Guidelines were developed to provide further clarification to the law but are not considered to be the law or regulation. They are simply guidelines to help librarians and faculty decide how to apply fair use in teaching. They are as follows. 

• Were designed for not-for-profit educational institutions for books and journals; they do not apply to for-profit educational institutions or non educational settings. 
• Represent the minimum, not the maximum, standards of educational fair use and are not intended to limit the types of copying permitted under the standards of fair use under section 107 of the copyright revision bill; in some instances copying may fall outside of the guidelines that are permitted under the criteria of fair use. 
• Intend to provide a safe harbor for instructors wishing to make a single copy of works for their own scholarly research or classroom instruction; they also outline three factors to consider when making and distributing multiple copies of works without seeking copyright permission or paying royalties, including brevity, spontaneity and cumulative effect. 

The Classroom Guidelines allow librarians and teachers to make a single copy of a chapter from a book; an article from a journal or newspaper; a short essay, story, or poem; or a chart, graph, diagram, drawing, or picture from a book or periodical. The single copy is to be used by the instructor for research, use in teaching, or preparation to teach a class. 

The Classroom Guidelines also permit making multiple copies for classroom use or discussion, if the use meets certain tests: 

• The copy is brief and spontaneous and has limited cumulative effect, as discussed below. 
• A copyright notice appears on the copy so that students realize the work is protected under the copyright law. 
• The copying should not replace a textbook, anthology, collective works, or the purchase of books, reprints, or journals.
• Consumable works—such as workbooks, exercises, and study guides—may not be reproduced. 
• Copying of the same item by the same teacher should not be repeated from term to term. 
• If students are asked to pay for the copies, the fee cannot be higher than the actual cost of copying the material.  

Assigning online materials available through your library is the easiest and safest path through copyright issues. The library licenses for electronic journals usually include the right to repeatedly access these materials online and make personal copies. Also, you can repeatedly use the online articles from semester to semester. However, e-journal licenses often prevent you from making copies of the portable document format (PDF) or other digital files that contain the articles, sending those files to students or colleagues, or placing them on Blackboard, an Internet site, or database. But once you find the need to print a copy and make multiple copies for students, you should review the Classroom Guidelines. 

If you are involved in nonprofit educational activities, you may apply the fair use criteria to see if your educational use of materials fits under those tests. In terms of the purpose of the use, most nonprofit institutions (e.g., hospitals, health care agencies, etc.) fit under the first criteria for fair use. Given the specific circumstances, for-profit institutions may also be able to use materials under fair use. For example, training a for-profit hospital’s personnel to respond to a public health emergency might tip the first factor in favor of the use. In any event, as noted above, for-profit institutions will need to carefully weigh the other factors. On the other hand, if your nonprofit institution holds a large educational event to generate profit, you may have crossed the threshold of what is permitted under fair use. The type of material is the next fair use test. Most health care materials fall in the category of scientific or factual information as opposed to literary or expressive works that have greater restrictions on fair use. If you decide to use poetry or a section from a novel, your use will be subject to that stricter interpretation of fair use. 

A scientific article may be easier to defend as being covered under fair use. Substantiality and market impact are the two factors likely to affect whether the use of works will fall under fair use.

• How much of the work are you using? Several articles from the same journal or several chapters from the same book might not be fair use. Are you using many pictures or tables from the same article or book? If yes, this may also exceed fair use. 
• How many copies are you using? Making a reasonable number of copies for one class and only one class could fall under fair use, but making copies for every nurse in the hospital or multiple classes is not likely to be fair use. 
• How often do you plan on using the article? Repeated use might not be fair use, even if it is for the same presentation that you are giving over and over again. 
• Is it possible to purchase reprints or a textbook? Have you replaced a textbook with photocopies of articles? You must balance all of these factors to determine whether something is fair use for CE, inservice training, or patient education. Unfortunately, clear-cut measures do not exist to indicate when you have crossed the line and are no longer able to use the fair use privilege. No one answer is right, because every situation may be different.

The following examples provide more guidance on this issue: 

• If you take an entire journal article and give it to a nursing in-service class of twenty students, it probably would be fine. However, if you teach the class twenty times to any number of nurses and use the same article, this would probably not be fair use. 
• The same applies for patient education. The use of one article for one reasonably sized patient class probably is fair use. However, giving every patient the same article over several weeks, months, or a year would likely exceed fair use. 
• The same scenario applies for continuing education. One class probably is fair use, but repeatedly using the same article might not be fair use. You might be able to justify a one-time use for a large conference, but not for a second use or repeated use of the same article. 
• Creating a handout using most of the tables and illustrations from one book or journal is probably not fair use. 
• Including a cartoon in an electronic presentation probably is a fair use, even if the presentation is given many times. However, if the participants of each session are given copies of the presentation, including the cartoon, then the fair use exception probably will have been exceeded. Suggested Practices 
• Check to see if the materials are available in your institutional library and send people to the library to use them. 
• Determine if your institution’s library has online access to the materials and send out the link or post the link to the item on an intranet or private Web page for internal CE and inservice training programs. 
• Always check with your institutional library before providing external participants, including patients, with links to electronic resources, because license and contract terms may prohibit sharing resources outside of the institution. 
• You usually will need to seek permission or pay royalty fees if you plan to place copyrighted materials on a public Website. 
• For patient handouts, check to see if your institution subscribes to a service that allows copying for patients. 
• Use an article, chapter, or other works only once per training session or class, but make sure that the size of the class is within reason. 
• Seek permission from the copyright owner (author or publisher) to see if they will allow free use, especially for in-service programs or patient education. 
• Create your own handouts; restate the content and facts in articles and chapters in your own words and give credit (attribution) to the original authors of the materials.
• Use only one or two figures, illustrations, or images from the same work in presentations and handouts. 

 It all depends… Ask yourself the following questions: 

• Is the program sponsored by a commercial or nonprofit entity? 
• Are you being hired to provide training by a commercial group? 
• Is a large part of your income coming from speaking engagements? 
• Does the commercial entity have a blanket license that covers copyright? 

When in doubt, seek permission to use materials.

You may create a collection or database of articles for your own personal use, but you should not make copies of this collection available to students and colleagues. However, you may create a database of links to electronic journals and books and share those links with colleagues and students. 

Suggested Practices 

• Keep databases or collections of articles only for personal use. 
• Seek permission to make your database or collection available to others. 
• Create a list of links to electronic journal articles or books for use by others.