Policies and
Procedures Manual
|
|
Subject of Policy Statement |
Effective Date |
Policy Number |
|
Use of Copyrighted Materials |
Rev: 07/20/07 |
0-105 |
I.
INTRODUCTION (Purpose and Intent)
The
As such, the University is committed to complying with all applicable
laws regarding copyrights as set forth in the United States Code, Title 17 (the
“Copyright Act”), and supports responsible use of copyrighted material as
statutorily exempted by §110(1) and (2) of the Copyright Act (Face-to-Face
Teaching Exemption and the “Technology, Education and Copyright Harmonization
Act” or “TEACH Act”, respectively) and further supports the responsible, good
faith fair use of copyrighted materials in accordance with §107 of the
Copyright Act (“Fair Use”).
II.
GENERAL PRINCIPLES OF COPYRIGHT LAW
A. What Is a Copyright and What Does
It Protect?
1.
Types of Work Protected
Copyright law protects "original works of authorship," that
are “fixed in a tangible medium.” This
protection is available for both published and unpublished works. Copyrightable works include the following
categories:
·
Literary works (including
software and “compilations”)
·
Musical works (including any
accompanying words)
·
Dramatic works (including any
accompanying music)
·
Pantomimes and choreographic
works
·
Pictorial, graphic, and
sculptural works (including architectural plans)
·
Motion pictures and other
audiovisual works
·
Sound recordings
·
Architectural
works
2.
Rights That Are Protected by Copyright
Under copyright law, copyright owners have the exclusive right to do
(and authorize others to do) certain things with respect to their copyrighted
work, including: make copies of the work, distribute copies of the work,
display or perform the work publicly, make derivative works, and transmit the
work electronically.
B. Works That Are Not Protected by
Copyright
Several categories of material are generally not eligible for federal copyright
protection. Such materials may be used
freely without regard to copyright protections.
These include among others:
·
Works in the public
domain. For example, most government
works are in the public domain and may be freely used. All copyrighted works will eventually fall
into the public domain. Copyright
protection generally lasts for the life of the author plus 70 years.
·
Works that have not
been fixed in a tangible form of expression, (for example, improvisational
speeches or performances that have not been written or recorded).
·
Titles, names, short phrases,
and slogans; familiar symbols or designs; mere variations of typographic
ornamentation, lettering, or coloring; mere listings of ingredients or
contents.
·
Works consisting entirely
of information that is common property and containing no original authorship
(for example: standard calendars, height and weight charts, tape measures and
rulers, and lists or tables taken from public documents or other common
sources).
III. USE OF
COPYRIGHTED WORKS BY FACULTY, STAFF AND STUDENTS
The University supports the responsible use of copyrighted material as
statutorily exempted for face-to-face and distance teaching activities, and for
the good faith exercise of full fair use rights by faculty, librarians, staff
and students in teaching, research and services activities.
However, except as allowed by law, it is a violation of law and this
Policy for University faculty, staff or students to use copyrighted material
without proper purchase or to reproduce, distribute, display publicly, perform,
digitally transmit, or prepare derivative works based upon a copyrighted work
without permission of the copyright owner.
As such, appropriate methods of using copyrighted
material are as follows:
A. Obtaining the Right to Use
Material by Proper Purchase
Unless you have the copyright owner’s permission or your activity is
covered by a legal exemption (as discussed below), faculty, staff and students
may not copy, reproduce or distribute copyrighted material. Faculty, staff and students must purchase
appropriate copies of all material needed for classroom activities. Purchasing a copy of copyrighted material
only provides the right to use that copy for personal use. Purchasing a copy does not
provide the right to make and distribute copies of the material.
B. Obtaining Permission of the Owner
Except when the activity is covered by a legal exemption (as discussed
below), faculty, staff and students of the University must obtain permission
from the copyright owner for any use that involves the copying and distribution
of copyrighted work to others. A
standard permission request is attached.
Permission
Request Form
C. Face-to-Face Teaching Exemption
Section 110 of the Copyright Act allows faculty to use or display copyrighted materials during
face-to-face teaching activities.
Such use does not require the owner’s permission. The exemption applies as long as there is: (i) no direct or indirect admission charge; (ii) it is a regular part of the instructional activities; and (iii) it is directly related to the teaching content. Note, however, this exemption does not permit
copying or distributing a work – only the display, teaching and/or
performing. (See section IV.B. of this
Policy, “Additional Guidelines for Classroom Copying.”)
D. Fair Use Exemption
The “Fair Use” statutory exemption allows certain specified uses of
limited portions of copyrighted material without requiring permission of the
copyright holder. Fair use allows
faculty to make copies of limited portions of a copyrighted work for non-profit
educational purposes.
IV. FAIR USE GUIDELINES
A.
Elements
of Fair Use–Good Faith Consideration Required
University faculty or staff who propose to make fair use of copyrighted
material must consider four statutory factors to be weighed in making a fair
use analysis. Faculty or staff must make
a good faith advance determination based on these four factors:
1.
What is the character
of the use?
·
Is it for an educational purpose?
·
Educational purposes are more likely to be
considered fair use.
2.
What is the nature of the work to be used?
·
Is the work primarily imaginative or
factual?
·
Use is more likely to be considered fair if the
work is more factual
in nature.
3.
What
is the amount and substantiality of the portion to be used?
·
Is it a small portion or the whole work?
·
Using a portion of the work is more likely to
be considered a fair use.
4.
Will the use negatively
affect the value of the copyrighted material?
·
Does the copied material compete with
potential profits to the
copyright owner?
·
An instance is more likely to
be considered fair use if it has no
impact on potential profits of the copyright owner.
·
Repeated use tends to affect market value.
B.
Additional
Guidelines for Classroom Copying
The following guidelines will assist you in determining if your use of
copyrighted materials is permissible.
The outer limits of fair use may reach further than the limitations suggested
by these guidelines. When material
sought to be copied falls outside the scope of the guidelines, faculty and
staff should secure permission to copy from the copyright owners.
1.
A single copy of material to
be used for teaching purposes is acceptable.
2.
Use only a small amount of the
copyrighted material in relation to the whole work – for example, a single
chapter of a book, an article, or a few photos from a larger collection.
3.
Making multiple copies is
acceptable provided that:
·
The number of
copies does not exceed more than one copy per student.
·
The inspiration and decision
of the teacher to use the work and the moment of its use should be reasonably
close in time.
·
The work
includes a notice of copyright.
4.
Multiple copying and
distribution of copyrighted material should not be substituted for the purchase
of books by the students.
5.
If copies of copyrighted
material will be used in the classroom or put on reserve in the library for
multiple semesters, then obtain permission from the copyright owner.
6.
Obtain permission and/or pay
appropriate license fees to use copyrighted material for course packs or other
material used for non-classroom study purposes.
7.
Do not copy and distribute
consumable materials such as workbooks, standardized tests, test booklets, etc.
C.
Additional
Guidelines for Using Audiovisual, Literary and Musical Works
A teacher may perform, display, or otherwise use motion pictures and
other audiovisual works, or recorded copies thereof, and literary or musical
works in the classroom, provided:
1. The use, performance or display is in the normal and regular course of
teaching activities and not for entertainment purposes;
2. All recorded copies of audiovisual works are lawfully made;
3. No transmission is made beyond the place where the copy is located (i.e.
outside the building or general area of classroom);
4. The use is limited to students enrolled in the course;
5. The purpose is strictly educational in nature, not for the recreation
and/or entertainment of the audience; and
6. The following restrictions are observed in the off-the-air recording and
use of television and cable programs:
a)
The program can be recorded
only once by or at the request of an individual teacher, even if the program
has been broadcast numerous times, and must include the copyright notice;
b)
The program must be used
within ten school days of its recording and can be used only twice during that
period once as a teaching aid and once for reinforcement;
c)
The copy must be erased or
destroyed at the end of forty-five school days after recording (during the last
thirty-five days, the program can be used only by the teacher for evaluation
purposes); and
d)
Recorded programs may not be
physically or electronically combined or merged to create teaching anthologies
or compilations, and may not be altered from their original content.
V.
ONLINE AND DISTANCE LEARNING ACTIVITIES
Copyright laws and Fair Use principles also apply
to Online and Distance Learning Courses.
However, a newer law called the TEACH Act also applies to such courses,
but for slightly different uses of copyrighted materials.
Traditional online course formats, such as
Blackboard, often include posting copyrighted materials for students to use
during the online course. Faculty or
staff use of Blackboard or similar formats should ensure that the use of such
material complies with Fair Use principles or is used with permission of the
copyright owner.
The TEACH Act applies to secondary transmissions
of a copyrighted work within a teaching performance. For example, when a professor’s teaching
performance is being recorded and subsequently transmitted online, and if that
professor is also showing a movie during that performance, then the TEACH Act
applies.
A. General Principles of the TEACH
Act
1.
The
TEACH Act (§110(2) of the Copyright Act) extends the face-to-face teaching
exemption to distance learning activities.
2.
The
TEACH Act allows faculty to use copyrighted materials during the act of
teaching when the teaching performance is then transmitted via the Internet or
video.
3.
The
TEACH Act only applies to works that an instructor would show or play during
class. Any uploading of material for
study purposes must otherwise comply with copyright laws, including fair use
principles.
4.
Provided
that the requirements of the Act are followed, transmissions (via Internet or
video) of teaching performances using copyrighted material may be made without
obtaining permission from the copyright owner.
B.
Guidelines
for Distance Education Courses Under the TEACH Act
1. The
performance or display of copyrighted material must be:
a) A
regular part of mediated instructional activity.
b) Made
by, at the direction of, or under the supervision of the instructor.
c) Directly
related and of material assistance to the content of the course.
2. The
following technological restraints must be in effect:
a) The
content must be accessible only to those students who are enrolled in the
course;
b) The
content must be accessible only for the duration of a class session;
c) To the
extent technologically possible, the content must be protected from further
distribution; and
d) To the
extent technologically possible, the content must not be subject to retention
by students.
3. All
material displayed must contain a notice similar to the following:
The materials on this course website are only for the use of students
enrolled in this course for purposes associated with this course and may not be
retained or further disseminated. The
materials on this course website may be protected by copyright; any further use
of this material may be in violation of federal copyright law.
4. Guidelines
for complying with the TEACH Act:
a) Notify students that works used are subject to copyright protection.
b)
Supervise the digital performance or display. Make it an integral part of your
instructional activity.
c) Work with University Information Technology to limit access to the works.
d) Reading
e) Do NOT
upload material such as textbooks, course packs or other resources typically
purchased by students to review outside of the classroom unless permission has
been received by the owner or such use otherwise complies with Fair Use
principles.
f) Do NOT
transmit or upload materials specifically marketed as distance education
courses.
g) Do NOT
use pirated works or works that you have reason to know were illegally made.
h)
Do NOT play an entire motion picture or act out a
performance of an entire play during a class that will then be
transmitted. Only a reasonable and
limited portion of these types of works can be used.
VI.
Course Packs and Course
Reserves
A. Guidelines for Printed Course Packs and Course Reserves
1.
Materials may be copied and placed in course
packs or made available for course reserves when they are:
·
In the
public domain; or
·
Used with
permission from the copyright holder; or
·
Used
under the provisions of a contract or license agreement, noting that agreements
may differ from, and often take precedence over, what is allowed under copyright
law; or
·
Used
under the provision of Fair Use–faculty must consider the four part fair use test.