Copyright Manual for Faculty and Staff

OVERVIEW OF COPYRIGHT LAW

Copyright Defined
Certain materials are in the public domain or have expired copyrights. Other material may have never been copyrighted. These materials are encountered infrequently. Most published materials, including audiovisual items, web sites, and computer software, are copyrighted. According to law, only the copyright holder can make copies of a published work. Anyone else must obtain the permission of the copyright holder. The law makes exceptions to the prohibitions if copying is done to advance research or education. These exceptions are called "fair use." Other exceptions that apply to distance education are outlined in the TEACH Act of 2002. The BOT Rules and Procedures Manual includes an explanation of copyright and the exceptions. (P6Hx23-1.35 pages I-56 through I-81)

Obtaining a Copyright
If an author wants to get a copyright, a copy of the work must be sent to the Register of Copyrights in Washington. Forms must be filled out and included with the submission. The procedure is inexpensive but time consuming. Information can be obtained from:

Register of Copyrights
Copyright Office
Library of Congress
Washington DC 20559

Even if this procedure is not followed, published materials might be protected by copyright. However, legal remedies against unauthorized copying are easier to apply if the material is registered.

The BOT Rules and Procedures Manual covers the legal questions of copyright and patents obtained as a result of employment at SPC. (See BOT Rule 6Hx23-1.35 Page I-55i.)

Violation of Copyright
Violation of copyright for a nonprofit use can result in a civil suit or criminal action. In a civil suit, the violator can be called on to compensate the copyright holder for lost revenue and also might be required to pay court costs, attorney's fees and punitive damages. A plaintiff filing suit against the person(s) making the illegal copies could also sue the person's employer. Criminal penalties include fines up to $10,000 and imprisonment of not more than a year or both. Statutory penalties include fines up to $250,000, and a range of one to five years imprisonment.

Fair Use Defined
The Copyright Law of 1976 outlines conditions that constitute fair use for research and education, but does not define fair use. The House Judiciary Committee held hearings, however, which brought together various interest groups. The resulting agreements are not truly laws, but have so far been treated as such by the courts. Restrictive interpreters of the law focus on the ad hoc nature of the guidelines and recommend very cautious approaches to fair use. More liberal interpreters look to the intent of the law. The guidelines are seen to describe the minimal conduct that is obviously fair use, rather than setting specific limits. In any case, a "good faith" educational use is unlikely to result in a lawsuit. Fair use is discussed in the BOT Rules and Procedures Manual. (P6Hx23-1.35 Page I-58 through I-73)

The fair use guidelines make use of three basic standards: brevity, spontaneity, and cumulative effect. The material copied should be a small portion of the entire, the need should be such that obtaining permission would not be practical, and the use being made of the material should not compromise the value of the material to the copyright holder. Note that fair use means that copying is allowed for the classroom in cases where time constraints or need for spontaneity prevent a teacher from obtaining permission. Therefore, the same materials cannot be used every semester without permission.

See the information below on obtaining permission.

The fair use guidelines are included in the Appendix of this booklet.

Note that the fair use guidelines are published with a legal disclaimer that indicates they are "minimum" standards. In some cases copying that exceed the guidelines might still count as fair use. But it is safest to abide to the established limits.

SHEET MUSIC AND RECORDING OF PERFORMANCES
Guidelines for sheet music were developed by representatives from six national music organizations. Because the economic impact can be more severe in the case of lost sales from sheet music, the guidelines are quite strict. Educational institutions must be vigilant in complying with copyright, as there are many ways to fall short.

Note that simplifying music is allowed, but not adding new portions, nor adding lyrics. As in the case of other printed material, the requirement for spontaneity limits the opportunity to copy when sufficient time is available to receive permission. See the information below on obtaining permission. The guidelines, originally published in House Report 94-1476, are listed in the Appendix.

Recorded Music
There are no guidelines that allow records and tapes to be copied without permission. However, the copyright act specifies that if a particular recording is in bad condition, a copy can be made to replace the item provided that a replacement cannot be purchased at a fair price. Libraries may also be allowed to produce archival copies of certain recordings. These privileges are for libraries only.

Off-the-air taping
News programs

Libraries are permitted to make video tapes of news reports and distribute them with few restrictions. (Public Law 94-553, Sec. 108 [f] [3]). The law covers news reports only, not commentary such as McNeil/Leherer Report, or features such as 60 Minutes.

The Guidelines for fair use of Off-Air records are in the Appendix.

Downloading or Copying Music Files
The Internet provides opportunities to locate and copy music online. Since almost all recordings of music are copyrighted, downloading and copying these files without permission is a violation of the law. College policy prohibits the use of SPC equipment to visit these sites. Downloading or copying music online is not allowed.

COMPUTER SOFTWARE
Almost all software obtained through commercial sources is copyrighted. There are no guidelines for fair use, but Section 117 of the copyright law specifically allows a backup copy to be made. The backup copy can be used only if the original is damaged or destroyed. If the original is transferred or discarded, the backup may not be retained.

While making of a backup copy is permissible, making multiple copies of a program is a violation of the copyright. If use of the program on more than one machine is desired, the user should purchase a license for multiple use or purchase a copy of the program for each machine. Many computer programs are sold with licensing agreements that further restrict use. (For example, the restrictions might include a notice that the program cannot be sold or transferred.) These "shrink wrap" agreements may turn out to be legally unenforceable, but there have not been enough test cases. Until the law is clear, such restrictions should be honored.

Placing Items on Reserve for Student Use
 

Print Reserves. The Library has reserve collections where instructors can make items available for student to use and copy. Fair use applies to items placed on reserve.

Only one chapter from a particular book can be copied and only one article from a particular magazine. (The Scope and Brevity standards from the fair use guidelines are a good guide here.) It is important to avoid the creation of an anthology. The timeliness guideline suggests that copies can remain on reserve for only one semester. Alternatively, the original book or magazine can be placed on reserve for students to use. If this method is used, the college is not making a copy at all, and it is the student's responsibility to copy materials appropriately.

At SPC, we have an arrangement with EBSCO, a supplier of electronic journals. They have an easy system that provides students with an electronic link to full-text articles in their database. Since we already pay for this service, it makes sense to take advantage of this method, avoiding any copyright concerns. EBSCO has thousands of journals in this format. Ask a Librarian at your site for details.

Electronic Reserves.  Docutek ERes is a powerful and eas-to-use electronic reserves system.  Library patrons receive round-the-clock access to reserve materials online. Document-level and course-level passwords allow you to control the access to copyright-protected materials.  Please contact you campus librarian for more information.

Fair Use of Video and DVD
Video tapes and DVDs cannot be copied without permission. Small excerpts can be copied for educational or research purposes, but the "creative essence" cannot be duplicated. Libraries may make a copy if the original is worn and a replacement copy is not available at a fair price. This privilege is for libraries only.

Presentation of Video and DVD
Fair use guidelines permit the use of DVDs and videos in the classroom or library so long as the use is for an educational purpose. If the audience consists of teachers and students and the showing is for instructional purposes, any warning of "HOME USE ONLY" holds little weight. However, some experts advise that when purchasing video tapes, the seller should be notified of the intended classroom use.

Fair Use Guidelines for Educational Multimedia
Technological advances have allowed teachers and students to create multimedia products which combine original material with reproductions of images and sound. Such productions often include small excerpts from many different sources and it can be difficult to get permission from every copyright holder. The Consortium of College and University Media Centers organized a committee made up of educators and publishers to agree on guidelines for fair use in these cases. The committee's work was completed in September 1996.

The Multimedia Guidelines allow for students and teachers in nonprofit educational institutions to incorporate portions of copyrighted works into their projects without obtaining prior permission. The resulting projects may be performed and displayed by teachers and students for educational purposes. The guidelines also allow a teacher to use the project as a demonstration at professional seminars. Both students and teachers may keep a copy for professional portfolios. If the project is performed or displayed over a network, important restrictions are listed to minimize the chance for unauthorized promulgation.

Educators may use a multimedia project in the classroom for up to two years. The guidelines limit the portion of a copyrighted work that may be incorporated into a multimedia work. Generally, 10 percent of the contents from a given source may be included. In addition to the original, only one archival copy of the multimedia work may be retained.

The guidelines require permission if the multimedia work is used commercially, or if additional copies are to be made, or if wider network distribution is intended. Educators are warned that downloading from the Internet may result in inadvertently violating copyright. Attribution and acknowledgment of the sources used should be included in any multimedia project, and a notice of copyright should be included. There are also cautionary statements against altering copyrighted works and against reproducing computer programs.

ELECTRONIC COPYRIGHT
Information written and published in electronic form is copyrighted and copying without permission is an infringement. For example, the posting of e-mail, participation in electronic discussion groups, and messages to bulletin boards are copyrighted, even if the writer takes no further steps to register or protect the writing. Copying is not an infringement if it is fair use, if the copyright holder gives an implied license, or if the copyright owner gives explicit permission.

When someone sends a message to a large net discussion group, a reasonable person would assume that it was okay to copy the message and quote it to others. This is an example where there is probably an implied license to copy. Sending an e-mail message to only a few people would probably not qualify as an implied license for recipients to copy the message.

Because the law has not been clarified with regard to electronic copyright, the college attorney has advised caution. As we await congressional action and court interpretations, the College is best protected by a conservative view of the Copyright law, i.e., when any doubt arises, we should favor the protection of the copyright holder.

THE TEACH ACT
The Technology, Education, and Copyright Harmonization Act of 2002 extends certain copyright privileges to instructors in a distance learning environment. The new law allows SPC to provide distance students with the same sorts of experiences found in a traditional classroom. The TEACH Act generally covers material that is displayed during the act of instruction, traditional copyright law and Fair Use still applies when creating multiple copies of materials for student use.

General Provisions
When we digitalize copyrighted works and make them available, we must take steps to limit access to only our students. As with other copyright laws, the individual instructor chooses the materials and makes decisions about what will be included in the online content.

The college uses Web CT to provide a secure system to store digitalized materials. The TEACH Act allows materials to be posted for a limited time, generally whatever period is considered one class session for a distance course. Contact the campus Educational Technologist for further information.

Specific Provisions
Most materials may be used in distance education. However, dramatic works, such as plays and movies and audiovisual works, such as academic videos may only be shown in "reasonable and limited portions." The law suggests that the amount of material presented should be similar to what might be used in a traditional lecture as an illustration or example. Instructors would need permission to display an entire production in a distance format.

If a work is marketed primarily for performance or display in a digital environment, or if a copy of the work is available from the publisher in a digitalized format, then the instructor should make use of these resources rather than making a copy from some other media.

Scope and brevity limits apply under the TEACH act for making digital versions of a copyrighted work. If a digital version is not available, it is permissible to digitalize only the "limited portion" that will be used in instruction. [Note that the TEACH Act allows instructors to circumvent copy protection when necessary to digitalize course-related material. However the Digital Millennium Copyright Act specifically prohibits circumventing protections. Instructors are advised to use caution until this law is clarified.]

The law discourages the use of materials that are outside the scope of "mediated instructional activities." Generally, we can provide materials online that might generally be part of a lecture, such as handouts, pictures, etc. Copying of entire chapters from texts, textbooks, lengthy articles, etc. is not permitted under the new law.

Online courses are password protected. Only currently enrolled students in a specific course can access the materials. Instructors and staff who support instruction must take precautions that limit the ability of students to further disseminate the digital information. Materials posted on the course web page must include a copyright notice. Students should be specifically cautioned about forwarding the material or otherwise creating a copy.

Materials can be displayed only for a finite amount of time. The law requires displaying materials only for a class session. Obviously, an online course is different than the traditional situation, but the implication is that materials should be displayed for the amount of time equivalent to one session of a face-to-face class.

The college has a file on the server where instructional materials are stored. Instructors post the materials to their class. When the need for the materials is past, they are placed back in the file. The server file will be used to retain materials that may be needed later while securing them from use by students and the public. Authorized instructors will have access to stored materials. The Educational Technologists at each site are responsible for assisting instructors in storing and accessing course materials.

See the Appendix for a Basic TEACH Checklist developed at the University of North Carolina. The checklist helps instructors follow the law.

Inter-Library Loan Considerations
If a particular article from a magazine or journal is needed for research and not available in the library collection, it is often possible to obtain photocopies from another library. Libraries are concerned that the use of Inter-Library Loans may result in harm to copyright holders. The American Library Association has published guidelines for fair use. These guidelines put limits on the frequency and scope of borrowing. A librarian will explain potential restrictions when the service is requested. (These guidelines are incorporated into the BOT Rules & Procedures Manual P6Hx23 - 1.35 Pages I-75 through I-77.)

COPYRIGHT QUESTIONS AND ANSWERS

Regarding Copies of Printed Material
Q: Can I make slides or transparencies from illustrations in books?
A: A strict interpretation of the "brevity" requirement in the guidelines would allow copying of only one such illustration per book. Also, the slide or transparency could be used during one semester only. (Book publishers often get permission to include photographs that belong to others. This may further limit the right to make copies.)

Q: What if I use an Elmo projector to show pictures from a book?
A: In this case, no copies are being made. These projectors may be used without restrictions.

Q: Can someone purchase a book and then make a photocopy of the entire book for personal use?
A: If there are research-related need, the fair use guidelines allow one chapter or one story from a book to be copied, but not the entire book. Otherwise, the copyright holder is deprived of an additional sale. When you purchase a book, you may use it in any manner, but the copyright holder retains the rights to reproduce it.

Q: If a text is ordered for a class but is late in arriving at the bookstore, can copies be made?
A: The fair use guidelines allow for one chapter to be duplicated and given to students. However, the guidelines are concerned with defining the minimum standards for fair use. In this case, it is presumed that students would purchase the book as soon as it arrives, so copying additional chapters or pages would not deprive the copyright holder of revenue and might constitute fair use. It would still be best to obtain permission.

Regarding the Use of Video and Film
Q: A group of students wants to show a video from the library to commemorate a holiday. The video will be shown in the student lounge and anyone can attend. Do they need to get permission from the copyright holder?
A: This use requires permission unless the video license includes the right to public performance. Because the video is shown to a public gathering rather than in a classroom, and the purpose is for entertainment rather than instruction, fair use does not apply.

Q: A teacher saw an advertisement for some videos on Ethics. Since money is tight, is it a violation of copyright to request a free preview and then send the videos back after showing them to the class?
A: This tactic certainly isn't ethical! Preview privileges are normally intended for evaluation purposes and should include only faculty who are making the purchase decision. However, contract law rather than copyright may be the main concern in this case.

Regarding the Use of Computer Software
Q: Can I buy a program for use in the computer lab and set it up so that 12 students can access it simultaneously?
A: Since this use will deprive the copyright holder of additional sales, you must obtain permission. However, if the program was invented, advertised, and sold as a "multiple user" program, then permission is not needed. Check with your campus Educational Technologist.

PERMISSIONS

How to Locate a Copyright Holder
If the name and address of the copyright holder are not included with the work, the information can be found by using various reference sources; including, the US Copyright Office, www.copyright.gov/resces.html. Use Literary Marketplace and Books in Print for finding copyright information about books. Use the Standard Periodical Directory for magazines, and AV Marketplace for software. These reference books are available at SPC libraries.

Writing Letters for Permission
When writing to a copyright holder for permission, all of the information listed below should be included:

It is advisable to include a self-addressed, stamped envelope and to give the publisher sufficient time to respond to the request.

Sample Letter
The letter below was adapted from the American Library Association. A similar example appears in the BOT Rules and Procedures Manual (P6hx23-1.35 Page I-78).

ACKNOWLEDGEMENTS

Materials used in compiling this booklet:

Botterbusch, Hope Roland. Copyright in the Age of New Technology [Fastback #405] Bloomington, IN: Phi Delta Kappa, 1996.

Copyright. American Library Association. 2003. ALA. 5 August 2003
www.ala.org/Content/NavigationMenu/Our_Association/Offices/ALA_Washington/Issues2/Copyright1/Copyright.htm

Fowler, Mavis. The Law of Copyright. [Oceana's Legal Almanac Series: Law for the Layperson.] Dobbs Ferry, NY: Oceana, 1996.

Gasaway, Laura N. "Balancing copyright concerns: the TEACH Act of 2001." Educause Review November/ December, 2001: 82. Academic Search Premier. EBSCOHost. M.M. Bennett Lib., St. Petersburg College. 8 August 2003.

Harper, Georgia K. Crash Course in Copyright. 2001. U. of Texas. 5 August 2003.
http://www.utsystem.edu/ogc/intellectualproperty/cprtindx.htm#top

Helm, Virginia M. What Educators Should Know About Copyright. [Fastback #233] Bloomington, IN: Phi Delta Kappa, 1986.

North Carolina University Libraries & Distance Education and Learning Technology Applications. TEACH Act toolkit: an online resource for understanding copyright and distance education. 2003. U. NC. 5 August 2003.
http://www.lib.ncsu.edu/scc/legislative/teachkit/

Pinellas County Schools Copyright Guidelines for Educators and Staff. Rev. ed. Clearwater, FL: School Board of Pinellas County, 1990.

Questions and Answers on Copyright for the Campus Community. Oberlin, OH: National Association of College Stores; Association of American Publishers, 1989.

Reed, Mary Hutchings. The Copyright Primer for Librarians and Educators. Chicago: American Library Association; Washington, DC: National Education Association, 1987.

United States Copyright Office. Library of Congress. August 5, 2003. http://www.copyright.gov/laws/