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This policy provides practical advice and procedures on copyright-related matters; however, it is not a substitute for legal advice, and proper legal advice should be obtained when necessary. If it is unclear whether legal advice is necessary or not, you should err on the side of caution. Also, this policy is in two parts: The first concerns the basics of copyright law in the United States as of the date this was published. The Appendix applies the copyright law to several specific instances that come up here at Regis.
The purpose of the Regis College Copyright Compliance Policy: Library and Classroom is to provide a summary of United States Copyright law as it relates to the use of text-based copyright-protected works in the classroom and library at Regis, and to provide guidelines and procedures for obtaining copyright permission to use these works.
U.S. copyright law contains many gray areas, and the goal of this policy is to provide Regis administrators, faculty, librarians, students, employees, and others with a standard approach for addressing complex copyright issues. This policy covers classroom issues such as photocopying, online and distance education, and coursepacks. It also covers library uses for print and electronic reserves, ILL and document delivery. Other Regis copyright and intellectual property policies may complement the policy by providing guidance on copyright issues beyond text-based materials used in the classroom and library.
Copyright is an area of law that provides creators and distributors of creative works with an incentive to share their works by granting them the right to be compensated when others use those works in certain ways. Specific rights are granted to the creators of creative works in the U.S. Copyright Act (Title 17, U.S. Code):
Copyright protection subsists, in accordance with this title, in original works authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. (Section 102)
If you are not a copyright holder for a particular work, as determined by the law, you must ordinarily obtain copyright permission prior to reusing or reproducing that work. However, there are some specific exceptions in the Copyright Act for certain users, and permission is never required for certain other actions, such as reading or borrowing original literary works or photographs from a library collection.
The rights granted by the Copyright Act are intended to benefit “authors” of original works of authorship”, including:
- to reproduce the copyrighted work in copies or phonorecords;
- to prepare derivative works (adaptations) based upon the copyrighted work;
- to distribute copies or phonorecords of the copyrighted work to the public by
sale or other transfer of ownership, or by rental, lease, or lending (except as
limited by the “First Sale” rights outlined in section 109);
- in the case of literary, musical, dramatic, and choreographic works,
pantomimes, and motion pictures and other audiovisual works to perform
copyrighted work publicly;
- in the case of literary, musical, dramatic, and choreographic works,
pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
- in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission. (Title 17, Section 106)
This means that virtually any creative work that you may come across – including books, magazines, journals, newsletters, maps, charts, photographs, graphic materials, and other printed materials; unpublished materials, such as analysts’ and consultants’ reports; and non-print materials, including electronic content, computer programs and other software, sound recordings motion pictures, video files, sculptures, and other artistic works – is almost certainly protected by copyright. Copyright law does not protect ideas, data, or facts.
In the United States, the general rule of copyright duration for a work created on or after January 1, 1978 is the author’s life plus 70 years after the author’s death. This is often referred to as “life-plus-70”. Works created by companies or other types of organizations generally have a copyright term of 95 years. For more information on copyright duration, visit the United States Copyright Office.
NOTE: While most works belong to their authors, when work is done by employees during the course of their employment, those works may belong to the employer. These works are known as “works made for hire”. Title 17, Section 101 states that:
A “work made for hire” is—
- a work prepared by an employee within the scope of his or her employment; or
- a work specially ordered or commissioned for use as a contribution to a collected work.
To determine what works are considered “works for hire” here at Regis; please consult your faculty/employee handbook.
Whenever copyright is mentioned, the term “public domain” arises. The public domain comprises all works that are either no longer protected by copyright or never were. It should not be confused “with the mere fact that a work is publicly available”. All works first published in the United States before 1923 are considered to be in the public domain. It also extends to works published between 1923 and 1963 on which copyright registrations were not renewed. All materials created since 1989 are presumed protected by copyright. And don’t forget even if copyright does not apply, trademark or patent laws might. Works created by the U.S. federal government are in the public domain and can be used freely.
A provision for fair use is found in Title 17, Section 107. Under the fair use provision, a reproduction of someone else’s copyright-protected work is likely to be considered fair if it is used for one of the following purposes: criticism, comment, new reporting, teaching, scholarship and research. If the reproduction is for one of these purposes, a determination as to whether the reproduction is fair use must be made based upon four factors:
- The purpose and character of use (principally, whether for commercial or nonprofit educational use);
- The nature of the copyright-protected work;
- The amount and substantiality of the portion used; and
- The effect of the use being evaluated upon the potential market for or value of the copyright-protected work.
Fair use is an ambiguous concept and the law does not state exactly what uses of a copyrighted work will be considered fair uses under the law and may therefore be used without obtaining permission. As such, individuals who are not lawyers may often need to be interpreters of the law in everyday circumstances, and answers as to how much reproduction may be considered fair use often remain unclear.
The bottom line is that fair use requires a very circumstance-specific analysis as to whether a particular use or reuse of a work may indeed be considered fair use.
To avoid confusion and minimize the risk of copyright infringement, Regis interprets the following situations as fair use:
- Quotation of short passages in a scholarly or technical work for illustration or clarification of the author’s observations.
- Reproduction of material for classroom use where an article is unexpected and spontaneous – for example, where an article in the morning’s paper is directly relevant to that day’s class topic. This would generally cover one time use in only one semester. For longer use, copyright permission is necessary.
- Use in a parody of short portions of the work itself.
- A summary of an address or article, which may include quotations of short passages of the copyright-protected work.
If your use does not meet the above criteria and the work is protected by copyright, you probably need to obtain permission to use the work from the copyright holder or its agent.
Talk to anyone about copyright, and you will hear the phrase “first sale”. Ask them what it means, however, and you will get a variety of responses. Because most copyright intellectual property has a physical manifestation (for example as a book, videotape, or compact disc) common law tradition suggests that the owner of a physical object has particular rights associated with that object. Title 17, Section 109 talks about the limitations on those exclusive rights, usually known as “first sale” rights. Section 109 states that
Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.
The United States Courts have also interpreted this section to permit the leasing of some works, hence we have Blockbuster and NetFlix. This exception is the law that permits libraries in the United States to loan books and other materials to the general public.
The Digital Millennium Copyright Act (DMCA) and the Technology, Education, and Copyright Harmonization Act (TEACH)
The Digital Millennium Copyright Act (the DMCA) was passed into law in 1998 to address some of the issues unique to digital copyright that were not being addressed by the copyright laws in effect at that time. The first two sections of the DMCA implement two international treaties -- the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. The DMCA can be viewed in its entirety at the U.S. Copyright Office website or the Copyright Clearance Center’s website. In sum, the DMCA contains provisions forbidding circumvention of digital protections and protecting copyright management information.
The anti-circumvention provisions prohibit the unauthorized circumvention of technological measures which control access to or restrict the use of a copyright-protected work. Those measures include passwords or encryptions; breaking a password or encryption is illegal.
The DMCA provides limited liability for university networks acting as Internet service providers (ISPs) for students and faculty, provided that certain requirements are met. These include:
- Appointing a designated agent to receive reports of copyright infringement and registering the agent with the U.S. Copyright Office.
- Developing and posting a copyright policy and educate the campus community about copyright.
- Comply with “take down” requests.
- Apply measures to protect against unauthorized access to content and dissemination of information.
- Using only lawfully acquired copies of copyrighted works.
The TEACH Act was signed in 2002. It amends sections 110(2) and 112(f) of the U.S. Copyright Act that applies to teachers. The TEACH Act facilitates and enables the performance and display of copyrighted materials for distance education by accredited, non-profit educational institutions (and some government entities) that meet the Act’s qualifying requirements. The TEACH Act applies to distance education that includes the participation of any enrolled student, on or off campus. For more information on what the TEACH Act does and does not allow, see the material at the end of this document.
The rest of this document contains various FAQs to assist faculty, staff and students in determining whether copyright laws and regulations have been followed.
The unauthorized distribution of copyrighted material, including through peer-to-peer file sharing, may subject a student to criminal and civil penalties. These laws cover both making copies using a photocopier and sharing materials through electronic means. Students can violate the rights of a copyright holder using many different types of technology. Both uploading and downloading of files can pose a violation of the copyright law. Students should be cautious when obtaining any copyrighted material. Before a student receives anything for free, they shouls research whether that source provides material licensed by the copyright owner. For specific examples, see Part Two, below. Regis College's specific policy (including a summary of the civil and criminal penalties for Violation of Federal Copyright Laws) can be found at HEOA (Higher Education Opportunity Act of 2008) Peer-to-Peer File Sharing Requirements.
Based on Regis’ fair use analysis, classroom handouts fall into two categories – one that requires permission and one that does not. If the handout is a new work for which you could not reasonably be expected to obtain permission in a timely manner and the decision to use the work was spontaneous, you may use that work without obtaining permission. However, if the handout is planned in advance, repeated from semester to semester to semester, or involves works that have existed long enough that one could reasonably be expected to obtain copyright permission in advance, you must obtain copyright permission to use the work.
All articles, chapters and other individual works in any print or electronic coursepack require copyright permission. Copyright permission is usually granted for only the academic period the coursepack is in use. [This means if you request permission to use an article for a course for Spring 2008 and permission is granted, you cannot use that article in a coursepack to be used for a course in Fall 2008. Ask for permission for the ENTIRE PERIOD you plan to use the material(s) in class.]
When ordering coursepacks it is important to clarify who will obtain permission for the coursepack – the copy shop or reprographic center, the faculty member or a member of the administrative staff. It is not a defense to copyright infringement that you thought someone else got the copyright permission.
If Regis library owns a copy of a publication or work, the library may place that copy on reserve without obtaining copyright permission. If the library wishes to reproduce additional copies of a work and place them on reserve for students to review, in either paper or electronic format, the 7 All rights reserved. Regis College. 2008.
library must obtain copyright permission. This rule also applies to faculty members’ personal copies they wish to place on reserve.
Photocopying by students is subject to a fair use analysis. A single photocopy of a portion of a copyright-protected work, such as a copy of an article from a scientific journal made for research, may be made without permission.
Photocopying all the assignments from a book recommended for purchase by the instructor, making multiple copies of articles or book chapters for distribution to classmates, or copying material from consumable workbooks all require permission.
It is important to maintain a distinction between ILL and Document Delivery Services (DDS). Photocopying for DDS requires copyright permission.
Regis Library may participate in interlibrary loans without obtaining permission provided that the “aggregate quantities” of articles or items received by the patron do not substitute for a periodical subscription or purchase of a work. Regis Library follows the CONTU guidelines for defining “aggregate quantities”. The CONTU guidelines state that requesting and receiving more than five articles from a single periodical within a calendar year or a total of six or more copies of articles published within five years prior to the date of request would be too many under CONTU.
If the articles or items being copied have been obtained through a digital license, you must check the license to see under what terms and conditions, if any, interlibrary loan is permitted.
The United States is a member of the leading international copyright treaty, the Berne Convention. As such, when Regis uses a copyright-protected work from another country, the protections provided to works by U.S. copyright law automatically apply to the use of that workas well (assuming the use takes place in the United States). The Copyright Clearance Center has many reciprocal licenses to allow use of materials from other countries.
The Teach Act
Technology, Education And Copyright Harmonization Act Of 2002
As stated previously, the TEACH Act was signed into law in 2002. The Act expanded the latitude universities, including Regis, have for the performance and display of copyright- protected materials in a distance education environment, including through the use of Course Management Systems (CMS).
In order for the use of copyrighted materials in distance education to qualify for the TEACH exemptions the following criteria must be met
Only “reasonable and limited portions,” such as might be performed or displayed during a typical live classroom session, may be used.
- The institution must be an accredited, non-profit educational institution.
- The use must be part of mediated instructional activities.
- The use must be limited to a specific number of students enrolled in a specific class.
- The use must either be for ‘live’ or asynchronous class sessions.
- The use must not include the transmission of textbook materials, materials “typically purchased or acquired by students,” or works developed specifically for online uses.
The institution (Regis) is responsible for the following
- The institution must have developed and publicized its copyright policies, specifically informing students that course content may be covered by copyright, and include a notice of copyright on online materials.
- The institution must implement some technological measures to ensure compliance with these policies, beyond merely assigning a password. Ensuring compliance through technological means may include user and location authentication through Internet Protocol (IP) checking, content timeouts, print-disabling, cut & paste disabling, etc.
The new exemptions under TEACH specifically Do Not extend to
- Electronic reserves, coursepacks (electronic or paper) or interlibrary loan (ILL)
- Commercial document delivery.
- Textbooks or other digital content provided under license from the author, publisher, aggregator or other entity.
- Conversion of materials from analog to digital formats, except when the converted material is used solely for authorized transmissions and when a digital version of a work is unavailable or protected by technological measures.
It is also important to note that TEACH does not supersede fair use or existing digital license agreements.
Resources For Permission To Use Copyrighted Works
(from the Copyright Clearance Center)
- Association of American Publishers, Inc., http://www.publishers.org
- Copyright Clearance Center, Inc., http://www.copyright.com
- International Federation of Reproduction Rights Organisations, http://www.ifrro.org
- National Writers Union, http://www.nwu.org
- U.S. Copyright Office, http://www.copyright.gov
Non-textual copyrighted works
- American Society of Composers, Authors and Publishers, http://www.ascap.com
- Broadcast Music, Inc., http://www.bmi.com
- Recording Industry Association of America, http://www.riaa.com
- American Society of Media Photographers, http://www.asmp.org
- Graphic Artists Guild, http://www.gag.org
- The Business Software Alliance, http://www.bsa.org
- Software & Information Industry Association, http://www.siaa.net
- Motion Picture Association, http://www.mpaa.org
- Motion Picture Licensing Corporation, http://www.mplc.com
- U.S. Copyright Office, http://www.copyright.gov
blogs, books, cartoons, e-mails, letters, magazines, memos, newspapers, newsletters, trade journals, training materials and other written material, in paper or digital format
on disc, downloaded or in other formats
three-dimensional artworks and other creations, as well as two-dimensional cartoon characters, graphical images, maps and photographs, in paper or digital format
buildings and the like
recorded or performed on cassette tapes, compact discs, phonographic records, podcasts or other media
motion pictures, multimedia presentations, demonstrations and slideshows, in analog or digital format
plays and screenplays, regardless of the medium in which performed or displayed
dance and mime performances
(thanks to www.copyright.com for this list)