Intellectual Property and Copyright Policies

(From Southern Arkansas University Faculty Handbook, 12th Edition, 2010, Sections F & G, pages 40-53)

A.     Intellectual Property Policy

The primary purpose of the Intellectual Property Policy is to provide the necessary protections and incentives to encourage both the discovery and development of new knowledge and its transfer for the public benefit; a secondary purpose is to enhance the generation of revenue for the home institutions and the creators.

 

1.      Definitions

Although the law provides for several different types of Intellectual Property, SAU faculty concerns center on two: copyrightable and patentable properties. The following definitions are adapted from the AAUP document, “Sample Intellectual Property & Policy Contract Language,” which relies on pertinent federal statutes:

a.       The term “Copyrightable” shall be understood to mean that bundle of rights that protect original works of 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. “Works of authorship” (including computer programs) include, but are not limited to, the following: literary works; musical works, including any accompanying words; dramatic works, including any accompanying music, pantomimes, and choreographic works; pictorial, graphic, and sculptural works (photographs, prints, diagrams, models, and technical drawings); motion pictures and other audiovisual works; sound recordings; and architectural works. “Tangible media” include, but are not limited to, books, periodicals, manuscripts, phonograph records, films, tapes, and disks. “Tangible media” also include material created for ordinary teaching use (including, but not limited to, traditional, distance, and online course delivery methods) and in departmental programs, such as course content/materials, syllabi, assignments, tests, activities, and exercises.

b.      The term “Patentable” shall be understood to mean that bundle of rights that protects inventions or discoveries which constitute any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.

c.       “Directed work” or “work for hire” is defined as a work agreed upon between the University faculty creator(s), the creation of which is based upon a specific request by the University and which requires substantial University resources. To qualify as a “directed work” or a “work for hire,” the following three conditions must be satisfied:

i.        A specific request by the University.

ii.      Substantial resources invested by the University.

iii.    Agreement between the University and the faculty creator. Such arrangement is to be agreed to in writing in advance, and in full conformance with other provisions of this agreement.

Substantial resources will vary by department and context. To be “substantial,” the resources must be beyond the ordinary (e.g., computer or BlackBoard or equivalent) and must be more than that to which other members of the department or unit are regularly offered as support for their work. For example, if a unit moves all courses online, support to move these courses online would not, in this context, be substantial as support was not differentially provided.

2.      Ownership of Copyright or Patent:

Intellectual property created, made, or originated by a faculty member shall be the sole and exclusive property of the faculty, author, or inventor, except as he or she may voluntarily choose to transfer such property, in full, or in part, except when the work qualifies as a “directed work” or “work for hire” by meeting the three criteria stated in the definition of such work, found above.

3.      Ownership of Copyright of Course Materials:

Material created for ordinary teaching use in the classroom or for distance or online courses or programs, such as course content/materials, syllabi, assignments, tests, activities, and exercises, shall remain the property of the faculty author, but institutions shall be permitted to use such material for internal instructional, educational, and administrative purposes, including satisfying requests of accreditation agencies for faculty-authored syllabi and course descriptions

4.      Frequently Asked Questions:

a.       Do I own copyright in my course?

To be copyrightable, a work must be “fixed in tangible form” – that is, it cannot be oral. Thus, “courses” are not copyrightable as a general matter. Course materials (syllabus, class notes, etc.) of sufficient originality can be copyrightable and as academic works, copyright in such materials belongs to the faculty member.

b.      For the University to own a directed work, must the agreement be in writing?

No. However, administrators and faculty are encouraged to memorialize agreements in writing.

c.       What are “substantial resources” under this policy?

The substantial resources threshold will vary by college, department, unit, and context. At the broad policy level, it would be unwise to try to capture such a variety of potential situations. However, resources beyond the normal provision made to faculty members are, at a minimum, a threshold factor in this determination. Remember also that the other two criteria (request and agreement by the faculty member) must be satisfied for a work to qualify as “directed” under this policy.

A.     Copyright Policy

Significant portions of this policy are derived from Complete Copyright: An Everyday Guide for Librarians, by Carrie Russell, Creative Deed License 2004, American Library Association. This use is subject to the following: original credit to the author, non commercial use, and sharing based on these same conditions

 1.      Copyright Basics

The founding fathers believed that authors and inventors would be more likely to create new works if they were given an incentive. Congress established a set of exclusive rights that gave copyright holders the sole right to reproduce and market their works to the public for “limited times.” During the term of copyright, copyright holders would have no competitors in the market for their particular copyrighted works. Initially, the exclusive rights pertained only to the rights of reproduction and distribution, but over the years, Congress has created additional rights. Copyright law is found in Title 17 of the United States Code.

The owner of copyright, under this title, has exclusive rights to do and to authorize any of the following:

a.       to reproduce the copyrighted work in copies or phonograph records;

b.      to prepare derivative works based upon the copyrighted work;

c.       to distribute copies of phonograph records of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

d.      in the case of literary, musical, dramatic, choreographic works, pantomimes, motion pictures, and other audiovisual works, to perform the copyrighted work publicly;

e.       in the case of literary, musical, dramatic, choreographic works, pantomimes, pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

f.       in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

If a person other than the copyright holder uses one of the exclusive rights without the authorization of the copyright holder, that person has infringed copyright (unless an exemption applies).

Once an expression is fixed in a tangible medium, it is afforded copyright protection immediately. A doodle made during a staff meeting, a webpage published on the World Wide Web, and the video one makes of a friend’s wedding are all equally copyrighted. In the past, to gain copyright protection for a work, the work had to be registered with the U.S. Copyright Office and/or contain a copyright notice (© 1999 Joe Creative) on the published work.  The Berne Convention Implementation Act of 1988 (which went into effect on March1, 1989) amended the Copyright Act of 1976 by eliminating the registration and notice requirement.

Since copyright is automatic, copyright is the rule rather than the exception. The creator or author must do something in order not to have copyright protection. She can put notice on her work saying, “This material is not protected by copyright” or “I assert as the creator of this work that this work be recognized as public domain material.” If the creator does not take action to the contrary, all works she creates are automatically protected. Thus, materials are copyright protected, instantly.

2.      Duration of Copyright

The copyright term has been extended many times throughout the history of copyright law, and the rules for copyright registration, renewal, and notice have also been amended numerous times. As a result, it can be very difficult to determine whether materials are protected by copyright. To complicate matters, additional modifications of the law have affected the term of unpublished materials. Furthermore, materials published outside the United States may be treated differently that U.S. publications. Consequently, one needs a copyright duration reference guide such as the one found in Exhibit A at the end of this section on copyright.

3.      Exceptions to Copyright Protection

a.       Non-copyrightable work

Copyright does not protect ideas, but it does protect expression. The idea of a story – “boy meets girl” – cannot be protected by copyright, but a “boy meets girl” story expressed in an original way can be protected.

Works that are obvious in their nature, such as the 12-month Julian calendar, cannot be protected by copyright. However, other parts of the calendar, such as original art or photography, may be protected by copyright.

Copyright law does not protect facts, but it does protect the original and creative selection and arrangement of facts. For example, a bibliography is a list of citations that cannot be protected. An annotated bibliography is copyright protected (not the list of citations but the original and creative annotations). On the other hand, a non-annotated bibliography might arguable qualify for copyright protection based on the originality of the selection of citations. Likewise, a bibliography arranged in a novel and creative way might also qualify.

Current copyright law protects only those elements of databases that contain originality and creatively in selection, coordination, or arrangement. Copyright protection for databases is often considered minimal since databases frequently are composed almost entirely of public domain materials. These types of works of authorship are sometimes said to have “thin” copyright protection.

Since existing copyright law protects an original selection, arrangement, and coordination of facts in databases, librarians and other public interest groups have argued that additional copyright protection is not necessary. If database producers could also copyright the facts that reside within a database, basic tenets of copyright law would be challenged:

i.        Originality is a constitutional requirement for copyright protection.

ii.      Copyright only protects expression and not ideas.

iii.    Copyright’s purpose to advance learning demands that ideas and information presented by others be built upon to create new works.

iv.    Once materials fall into the public domain, they cannot be copyright protected.

b.      Public Domain

The public domain is information, knowledge, discoveries, and artistic creation never or no longer protected by copyright. Most of us know that facts, for example, are automatically part of the public domain, because facts cannot be copyrighted. The copyright law (§ 102) goes on to say that “in no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery.” Thus, while a particular process a person may have designed for shelving books in his library cannot be protected by copyright, a description, explanation, or illustration of the process could be protected by copyright.

In addition, works of the U.S. government produced by government employees are in the public domain. This category includes works that are created by all agencies of the federal government, such as the Internal Revenue Service, federal legislation, the president’s speeches, and court rulings.

Works created by state governments and their employees may or may not be in the public domain.

Once materials are in the public domain, anyone can exercise a right of copyright without the prior permission of the copyright holder. For example, publishing a work from the public domain is not violation of copyright. In fact, the re-publication of such a work can generate new revenue, not for the original copyright holder, but for whoever publishes and markets it.

c.       Fair Use

Fair use is limited use without signing a license, and without paying a fee. It not only allows but also encourages socially beneficial uses of copyrighted works such as teaching, learning, and scholarship. There is never an immediate answer to the question, “Is this a fair use?” One must make a fair use determination based on sound judgment and the careful consideration of the situation at hand and that determination may take some time. Those who prefer a “yes” or “no” answer may be troubled by the ambiguous nature of fair use, but fair use cannot be reduced to a checklist. Fair use requires people to think.

But at least the fair use section of the copyright law is short and easy to read:

Sec.107. Limitations on exclusive rights: Fair use notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonograph records or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is fair use, the factors to be considered shall be:

i.        the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.

ii.      the nature of the copyrighted work.

iii.    the amount and substantiality of the portion used in relation to the copyrighted work  as a whole.

iv.    the effect of the use upon the potential market for or value of the copyrighted work.

See Exhibit B at the end of this section for a practical analysis of fair use.

The Supreme Court has framed the larger policy issue by saying that “to negate fair use one need only show that if the challenged use should become widespread, it would adversely affect the potential market for the copyrighted work.” Usually, one will need to investigate a few facts to assess the “market” and “effect” on the copyrighted work for a particular use. A person considering the issue of fair use might ask questions such as these:

 What is the market and “potential” market?

Has a market developed at all?

What is its rough size – a handful of possible buyers for some precisely focused newsletters, or a wealth of takers for a Hollywood film?

Making a copyrighted work available to a small group of enrolled students for the purpose of teaching, learning, and scholarship is likely an easier fair use case than sharing that work with six billion people worldwide on a publicly accessible website. Ease and cost of acquiring permission also is a question to ponder and address in assessing the potential market.

d.      The TEACH Act

Before the TEACH Act was passed in 2002, section 110 did not address transmitting digital materials to students in distance education situations. Unlike fair use, the TEACH amendment is more of a checklist – one is allowed to do this and that, but you have to follow these particular conditions. The TEACH Act allows copyrighted works in digital formats to be digitally transmitted to students in the classroom or in distance learning environments without prior permission from the copyright holder. But make no mistake; the exemptions addressing the use of digital materials in the classroom are limited in scope. In particular, educational institutions must meet specific requirements before the exemption can be used.

e.       Public Displays and Performances in the Classroom

In the face to face teaching situation (physical classroom or other place devoted to instruction), instructors and pupils at non-profit educational institutions may display analog works protected by copyright holder. For audiovisual works, like videotapes, the copy used must be a lawful copy. But, as you know by now, copyright has to be confusing most of the time. When transmitting material via digital networks, the rules for the display and performance of copyrighted works to the classroom are more complex and detailed in nature.

See Exhibit C at the end of this section for analysis.

4.      Additional Rules for Digital Works and Digital Transmission of Works Protected by Copyright

a.       All materials used for display and performance in the classroom must be works that were lawfully made and acquired, or at least one should have every reason to believe that the copies are lawful copies.

b.      Teaching must occur at an accredited, non-profit educational institution. Accreditation for K-12 schools is recognition by the applicable state certification or licensing board. For higher education, the college or university must be approved by a regional or national accrediting agency recognized by the Council on Higher Education and Accreditation or the U.S. Department of Education.

c.       The use of the copyrighted resources must be within the confines of “mediated instructional activities” – integral to the course, under the direction of the course instructor, and analogous to the kinds of performances or displays one would expect in a physical classroom.

d.      The use of dramatic literary works – those works with a dramatic element like an opera or play – and any other work (including audiovisual works) is limited to smaller, discrete portions of the work unless performing or displaying the entire work is essential to the course. For example, an instructor teaching the course “Films of John Ford” probably needs to show one or more John Ford Films in their entirety to meet course goals. In the rare instance where it is necessary to transmit a digital copy of a film via a computer network to students in remote locations, TEACH could also apply, but only if the digital copy is necessary to meet pedagogical goals. The digital transmission is made for enrolled students only and to the extent technologically feasible, limited to enroll students.

To use these exemptions, educational institutions must also have in place copyright policies and copyright educational resources that promote lawful use of copyrighted works and that are readily available to instructors, staff, and students. In addition, students should be alerted to the fact that copyrighted works used in courses may be protected by copyright. Labeling works as protected by copyright and including the notice of copyright whenever possible is more important when works are in digital formats. Furthermore, the educational institution that transmits digital works must use technological protection measure (passwords, watermarking, encryption) that reasonably prevent:

i. retention of the work in accessible form for any time longer than the class session.

ii. unauthorized further dissemination of the work to others.

iii. activities that would decrypt or otherwise interfere with technological measures already employed by the copyright holder to prevent retention or unauthorized distribution of the work.

Digital materials are more vulnerable to copyright infringement because of the ease of reproduction and broad distribution. With TEACH, Congress said digital works should be more tightly controlled. To achieve this end, educational institutions are required to make a concerted effort to prevent infringements in two ways – by educating the educational community about copyright law and by using technology to limit the possibility of infringement.

5.      Effectiveness of Technological Controls Required by TEACH

Arguably, the most difficult aspect of interpreting the TEACH Act is the technological requirements expected of institutions who want to exercise the TEACH exemptions. Congress used the “reasonable measures” language as an acknowledgement that educators” judgment and our demonstration of good faith will come into play when educators implement protection technologies. The institution should take reasonable measures to protect copyrighted works as best as possible, given existing technology, its availability, and the technological capabilities of the individual school, college, or university.

Fair use is always an alternative option for educational institutions. Teachers and students can use digital materials for teaching if the use is a fair use. In fact, before the TEACH amendment, many educational institutions exercised fair use when using digital materials for educational purposes. As far as can be determined, none of these actions led to litigation. If the use of digital material is fair, the institution is not infringing. Note that with fair use, the institution is not required by law to meet the technological requirements outlined in section 110.

6.      Course Packs

Publishers and other copyright holders have long been concerned about course packs, for a number of reasons. If course packs are used rather than textbooks, profits are affected. Publishers and other copyright holders believe that they should be compensated – through permission fees, for example – for the use of copyrighted material in a course pack. Indeed, copyright permission fees are an increasing source of income for many publishers. Publishers are able to continue to collect royalties even on materials they no longer print or make available in the market.

On the other hand, educators may feel that, if the materials are being used for non-profit, educational purposes, course packs are fair uses. After all, one of the exemplars of fair use listed in section 107 is “multiple copies for classroom use.” Even so, two court cases have found against course packs without copyright permissions.

Unfortunately, the copyright law does not tell us when permission is necessary for the copyrighted works included in course packs. We know that if a copyright exemption such as fair use does not apply, permission should be sought. Some people assert that the “first use” of a copyrighted work in a course pack is fair, and subsequent uses of the same material are unfair. The copyright law does not provide a specific indication that repeated use of the same item is an infringement. However, if the repeated use is conducted to avoid a purchase, the fourth factor – effect on the market – would certainly come into play, and permission should be sought. For those institutions that rely on the Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions, to make fair use decisions, repeated use may be in conflict with the “spontaneity” constraint. However, the Classroom Guidelines are merely one way to make decisions about copying. “True” fair use determinations (based on section 107) do not rely on the guidelines. Magale Library is the contact point for seeking permission for use when that need is determined. The Library currently is paying the copyright permission cost if it is not unreasonable.

7.      The TEACH Act and Reserves

The legislative history for the TEACH Act makes clear that exemptions to public performance and public display of resources outlined in section 110 do not apply to reserves. This makes sense if one considers that rarely would an instructor publicly display a journal article for classroom purposes. Students do not read their materials during the class period. It is more likely that a portion of a resource (like a graph or illustrative model) may be displayed in the classroom. Public performance applies only to works that are publicly performed (recitation, theatrical production, choreography) or that are shown or heard by means of a playback device (videos, motion pictures, sound recordings). Public displays are for work “on display” as in works that would be displayed in an art gallery.

See Exhibit D at the end of this section for additional information.

8.      Digital Millennium Copyright Act (DMCA) of 1998

The DMCA is the principal amendment that attempts to update the copyright law for the digital environment. This law remains unsettled and controversial. The DMCA:

a.       provides some protection to online service providers from liability for online infringement if certain conditions are true and particular rules are followed;

b.      allows libraries and archives to make up three reproductions for replacement or preservation purposes under certain conditions;

c.       gives copyright holders the right to control or deny access to digital works protected by copyright;

d.      makes the circumvention of technology used to protect copyrighted materials a civil and criminal offense;

e.       prohibits the manufacture, provision, importation of, and trafficking of ant-circumvention and anti-copying devices or software;

f.       prohibits tampering with copyright management information;

g.       maintains that rights, remedies, limitations, or defenses to copyright infringement, including fair use, are not affected regardless of new prohibitions on anti-circumvention technologies (although fair use is not a defense to the criminal act of circumvention);

h.      establishes that an ongoing, administrative rule-making proceeding be held to evaluate the impact of the anti-circumvention provisions on non-infringing uses of copyrighted works;

i.        directs the U.S. Copyright Office and the National Telecommunications and Information Administration of the Department of Commerce (NTIA) to produce a joint report on first sale and computer software exemptions and how encryption research may be affected by DMCA; and

j.        directs the U.S. Copyright Office to hold public hearings and make recommendations regarding distance education.

Exhibits

Exhibit A

Copyright for Published Works

Time of Publication

Conditions

Public Domain Status

Before 1923

None

In Public Domain

Between

1923 and 1978

Publish without a copyright notice

In Public Domain

Between 1978 and March 1, 1989

Published without a notice, and without subsequent registration

In Public Domain

Between 1978 and

March 1, 1989

Published without a notice, but with a subsequent registration

70 years after death of author, or if work of corporate authorship, the shorter of 95 years from publication, or 120 years from creation

Between

1923 and 1963

Published with notice but copyright was not renewed

In Public Domain

Between

1923 and 1963

Published with notice and copyright was renewed

95 years after publication date

Between

1964 and 1978

Published with notice

70 years after death of author, or if work of corporate authorship, the shorter of 95 years from publication, or 120 years from creation

Between 1978 and

March 1, 1989

Published with notice

70 years after death of author, or if work of corporate authorship, the shorter of 95 years from publication, or 120 years from creation

After March 1, 1989

None

70 years after death of author, or if work of corporate authorship, the shorter of 95 years from publication, or 120 years from creation

 

Copyright for Unpublished Works

Type of work

Copyright Term

What Became Public Domain on January 1, 2003 in U.S.

Unpublished works

Life of the author + 70 years

Works from authors who died before 1933

Unpublished anonymous and pseudonymous works,  and works made for hire

(corporate authorship)

120 years from date of creation

Works created before 1883

Unpublished works created before 1978 that are published before January 1, 2003

Life of the author + 70 years or December 31, 2047, whichever is greater

Nothing. The earliest publications can enter the public domain is January 1, 2048

Unpublished works created before 1978 that are published after December 31, 2002

Life of the author + 70 years

Works of authors who

died before 1933

Unpublished works when

 the death date of the

 author is not known

120 years from date of creation

Works created before 1883

 

Exhibit B

Applying the Four Factors

One useful way to begin any fair-sue analysis is to examine the model prepared by Professors Kenneth D. Crews and Dwayne K. Buttler: (See below)

The model gathers together a multiplicity of facts and circumstances that have occurred in fair use cases and that courts have found significant in weighing how those facts and circumstances fit within the four-factor analysis.

(Sample analysis in Appendix B – Buttler’s Analysis)

Buttler’s Analysis

1.      Purpose

E-reserve service furthers the teaching, learning, and scholarship of students. Libraries typically limit the use of resources solely to particular students enrolled in specific classes, not allowing access to all who might happen upon a webpage. That limit further reinforces and demonstrates the purpose of using the materials: teaching and learning. E-reserves also can serve as something of a “multiple-copies-for-classroom-use” opportunity, yet in practice actually might lessen the number of copies. The library typically would make only one copy of the work and would make the lone copy available electronically to multiple students. These facts and circumstances might generally favor a finding of fair use, but they certainly do not end the fair use inquiry. All four factors must be analyzed and weighed applying fair use, not just the purpose.

2.      Nature

This factor asks about the nature of the original work. Fair use generally favors the use of published works over unpublished works. Unpublished works enjoy a bit thicker protection under the theory that the author should have the right to decide not only when to publish but also whether to publish at all. However, the statute itself indicates: “the fact that a work is unpublished shall not itself bar a finding of fair use.” Thus, fair use could support the use of unpublished works in some circumstances. The other three factors, for instance, might weigh heavily in favor of fair use. Making use of more factually based works also can support a fair use finding. On the other hand, using fictional or highly creative works such as art, music, novels, plays, and the like might make a fair use outcome less likely. Professor Kahn assigns a range of diverse readings and materials; some may fall easily within fair use, others outside its ambit. Nature is but one of four factors.

3.      Amount

            In general, less is better, but there may be instances when using a greater amount of work, maybe    even the whole thing, is legitimate. Purpose relates closely to amount or, more precisely, ought to       relate closely to amount of the copyrighted material used. The more one uses a given work, the   more one will need to articulate – not only well but also clearly – how that amount might be    critical to serving one’s purpose, for instance, directly supporting teaching goals and pedagogy.

            A difficulty in understanding and applying an incremental approach, that is an amount standard, to fair use determinations is the seeming bias toward print materials. It is usually less difficult for faculty, librarians, and others to appreciate how one might limit the use of written works to particular teaching and learning designs rather than a photograph or musical work. If students donot need to read a whole article to understand a particular nuance, for instance, why copy and     assign the whole work? Just copy and assign directly relevant portions of it. The more difficult conundrum is communicating visually or aurally in their broadest sense. Think about teaching photography and photographic principles. Can one teach photography by using only increments or percentages of photographs or other visual works? Is the lower left-hand corner, somewhere near the middle, just above the border, enough to meet learner needs? Probably not. What about         teaching music composition? Is listening to 10 percent or ten seconds of a particular work sufficient to convey the flavor of the work or something of more substance? Can one use a wholework and still fit within fair use? Such a quandary can raise difficult challenges in applying fair use. Whole works have successfully constituted fair use in some fairly narrow instances. Using   whole works also has weighed against fair use in other instances.

 4.      Effect

Effect is in some ways the most mysterious, and perhaps most irreconcilable, factor of fair use. Some courts have suggested that it might “weigh” more than the other factors, but the Supreme Court has sought to refine and arguable to extinguish this narrow interpretation. Copyright owners might claim that effect ought to determine the outcome of a fair use analysis. If there is a significant loss of revenue to the copyright holder, then the effect would be significant.

Exhibit C

Showing a Movie on Campus

 

If a person is showing a movie to anyone other than family and friends in a nonpublic place, the following questions may apply to determine whether a public performance license is required. All of this assumes that the copy of the movie is a legal one.

Is the movie being shown as a part of live, face to face teaching activities in a classroom or similar place devoted to instruction?

If yes, then a public performance license is not required, but fair use and TEACH still apply.

If no, is there any specific license for nonprofit educational purposes?

If no, then a public performance license is required.

Exhibit D

Library Reserve Policy Options

 

Following are three different hypothetical approaches a library might take, from the risk-averse approach to the more liberal, when developing library reserve copyright policies. It cannot be said with any certainty that a court of law would consider any of these options non-infringing.

1.      Fair use claimed for all items, for a limited time. Photocopied or scanned material will be placed on course reserve for a number of semesters before permission is requested of the copyright holder. This will be done for all items, regardless of whether the library owns an original, except for “consumables.” These materials will not be copied for use on course reserve. Of course, permission will never be sought for works in the public domain. The advantage of this approach is that legally it is fairly – though certainly not absolutely – safe. The disadvantages are that it requires extensive tracking of use, and that asking permission always carries with it the possibility of either a refusal or of a request for a fee that is prohibitive.

2.      Fair use claimed for a limited time for items not owned; indefinitely for those the library has purchased. Same as (1), except that permission will not be requested to make copies of items the library has already purchased for the educational use of its clientele. For materials that are in print, a copy of an un-owned item may be purchased for the library in lieu of asking permission and paying a fee. The advantages of this approach are that it is fairly easy to articulate to staff and faculty, and there are fewer items that require tracking of use. The disadvantages are that some sort of checking must be done to determine (1) whether items are owned, (2) that the legalities are less certain, and (3) that (for those items that are not owned) permission requests always carry with them the risk of refusal or prohibitive fees.

 3.      Fair use claimed indefinitely. Fair use will be claimed any time the professor requests that the material be placed on reserve, except for “consumables.” The advantage of this approach is that it is very easy to articulate to faculty and staff. The disadvantage is that the legalities are perhaps even less certain.

                        Note: The three scenarios outlined above are by no means the only possible ones but areintended to serve as broad examples of possible approaches to copyright management of reserve materials.

A.     Intellectual Property Policy

 The primary purpose of the Intellectual Property Policy is to provide the necessary protections and incentives to encourage both the discovery and development of new knowledge and its transfer for the public benefit; a secondary purpose is to enhance the generation of revenue for the home institutions and the creators.

1.      Definitions

Although the law provides for several different types of Intellectual Property, SAU faculty concerns center on two: copyrightable and patentable properties. The following definitions are adapted from the AAUP document, “Sample Intellectual Property & Policy Contract Language,” which relies on pertinent federal statutes:

a.       The term “Copyrightable” shall be understood to mean that bundle of rights that protect original works of 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. “Works of authorship” (including computer programs) include, but are not limited to, the following: literary works; musical works, including any accompanying words; dramatic works, including any accompanying music, pantomimes, and choreographic works; pictorial, graphic, and sculptural works (photographs, prints, diagrams, models, and technical drawings); motion pictures and other audiovisual works; sound recordings; and architectural works. “Tangible media” include, but are not limited to, books, periodicals, manuscripts, phonograph records, films, tapes, and disks. “Tangible media” also include material created for ordinary teaching use (including, but not limited to, traditional, distance, and online course delivery methods) and in departmental programs, such as course content/materials, syllabi, assignments, tests, activities, and exercises.

b.      The term “Patentable” shall be understood to mean that bundle of rights that protects inventions or discoveries which constitute any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.

c.       “Directed work” or “work for hire” is defined as a work agreed upon between the University faculty creator(s), the creation of which is based upon a specific request by the University and which requires substantial University resources. To qualify as a “directed work” or a “work for hire,” the following three conditions must be satisfied:

i.        A specific request by the University.

ii.      Substantial resources invested by the University.

iii.    Agreement between the University and the faculty creator. Such arrangement is to be agreed to in writing in advance, and in full conformance with other provisions of this agreement.

Substantial resources will vary by department and context. To be “substantial,” the resources must be beyond the ordinary (e.g., computer or BlackBoard or equivalent) and must be more than that to which other members of the department or unit are regularly offered as support for their work. For example, if a unit moves all courses online, support to move these courses online would not, in this context, be substantial as support was not differentially provided.

2.      Ownership of Copyright or Patent:

Intellectual property created, made, or originated by a faculty member shall be the sole and exclusive property of the faculty, author, or inventor, except as he or she may voluntarily choose to transfer such property, in full, or in part, except when the work qualifies as a “directed work” or “work for hire” by meeting the three criteria stated in the definition of such work, found above.

3.      Ownership of Copyright of Course Materials:

Material created for ordinary teaching use in the classroom or for distance or online courses or programs, such as course content/materials, syllabi, assignments, tests, activities, and exercises, shall remain the property of the faculty author, but institutions shall be permitted to use such material for internal instructional, educational, and administrative purposes, including satisfying requests of accreditation agencies for faculty-authored syllabi and course descriptions

4.      Frequently Asked Questions:

a.       Do I own copyright in my course?

To be copyrightable, a work must be “fixed in tangible form” – that is, it cannot be oral. Thus, “courses” are not copyrightable as a general matter. Course materials (syllabus, class notes, etc.) of sufficient originality can be copyrightable and as academic works, copyright in such materials belongs to the faculty member.

b.      For the University to own a directed work, must the agreement be in writing?

No. However, administrators and faculty are encouraged to memorialize agreements in writing.

c.       What are “substantial resources” under this policy?

The substantial resources threshold will vary by college, department, unit, and context. At the broad policy level, it would be unwise to try to capture such a variety of potential situations. However, resources beyond the normal provision made to faculty members are, at a minimum, a threshold factor in this determination. Remember also that the other two criteria (request and agreement by the faculty member) must be satisfied for a work to qualify as “directed” under this policy.

B.     Copyright Policy

 Significant portions of this policy are derived from Complete Copyright: An Everyday Guide for Librarians, by Carrie Russell, Creative Deed License 2004, American Library Association. This use is subject to the following: original credit to the author, non commercial use, and sharing based on these same conditions

 1.      Copyright Basics

The founding fathers believed that authors and inventors would be more likely to create new works if they were given an incentive. Congress established a set of exclusive rights that gave copyright holders the sole right to reproduce and market their works to the public for “limited times.” During the term of copyright, copyright holders would have no competitors in the market for their particular copyrighted works. Initially, the exclusive rights pertained only to the rights of reproduction and distribution, but over the years, Congress has created additional rights. Copyright law is found in Title 17 of the United States Code.

The owner of copyright, under this title, has exclusive rights to do and to authorize any of the following:

a.       to reproduce the copyrighted work in copies or phonograph records;

b.      to prepare derivative works based upon the copyrighted work;

c.       to distribute copies of phonograph records of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

d.      in the case of literary, musical, dramatic, choreographic works, pantomimes, motion pictures, and other audiovisual works, to perform the copyrighted work publicly;

e.       in the case of literary, musical, dramatic, choreographic works, pantomimes, pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

f.       in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

 

If a person other than the copyright holder uses one of the exclusive rights without the authorization of the copyright holder, that person has infringed copyright (unless an exemption applies).

Once an expression is fixed in a tangible medium, it is afforded copyright protection immediately. A doodle made during a staff meeting, a webpage published on the World Wide Web, and the video one makes of a friend’s wedding are all equally copyrighted. In the past, to gain copyright protection for a work, the work had to be registered with the U.S. Copyright Office and/or contain a copyright notice (© 1999 Joe Creative) on the published work.  The Berne Convention Implementation Act of 1988 (which went into effect on March1, 1989) amended the Copyright Act of 1976 by eliminating the registration and notice requirement.

Since copyright is automatic, copyright is the rule rather than the exception. The creator or author must do something in order not to have copyright protection. She can put notice on her work saying, “This material is not protected by copyright” or “I assert as the creator of this work that this work be recognized as public domain material.” If the creator does not take action to the contrary, all works she creates are automatically protected. Thus, materials are copyright protected, instantly.

2.      Duration of Copyright

The copyright term has been extended many times throughout the history of copyright law, and the rules for copyright registration, renewal, and notice have also been amended numerous times. As a result, it can be very difficult to determine whether materials are protected by copyright. To complicate matters, additional modifications of the law have affected the term of unpublished materials. Furthermore, materials published outside the United States may be treated differently that U.S. publications. Consequently, one needs a copyright duration reference guide such as the one found in Exhibit A at the end of this section on copyright.

3.      Exceptions to Copyright Protection

a.       Non-copyrightable work

Copyright does not protect ideas, but it does protect expression. The idea of a story – “boy meets girl” – cannot be protected by copyright, but a “boy meets girl” story expressed in an original way can be protected.

Works that are obvious in their nature, such as the 12-month Julian calendar, cannot be protected by copyright. However, other parts of the calendar, such as original art or photography, may be protected by copyright.

Copyright law does not protect facts, but it does protect the original and creative selection and arrangement of facts. For example, a bibliography is a list of citations that cannot be protected. An annotated bibliography is copyright protected (not the list of citations but the original and creative annotations). On the other hand, a non-annotated bibliography might arguable qualify for copyright protection based on the originality of the selection of citations. Likewise, a bibliography arranged in a novel and creative way might also qualify.

Current copyright law protects only those elements of databases that contain originality and creatively in selection, coordination, or arrangement. Copyright protection for databases is often considered minimal since databases frequently are composed almost entirely of public domain materials. These types of works of authorship are sometimes said to have “thin” copyright protection.

Since existing copyright law protects an original selection, arrangement, and coordination of facts in databases, librarians and other public interest groups have argued that additional copyright protection is not necessary. If database producers could also copyright the facts that reside within a database, basic tenets of copyright law would be challenged:

i.        Originality is a constitutional requirement for copyright protection.

ii.      Copyright only protects expression and not ideas.

iii.    Copyright’s purpose to advance learning demands that ideas and information presented by others be built upon to create new works.

iv.    Once materials fall into the public domain, they cannot be copyright protected.

b.      Public Domain

The public domain is information, knowledge, discoveries, and artistic creation never or no longer protected by copyright. Most of us know that facts, for example, are automatically part of the public domain, because facts cannot be copyrighted. The copyright law (§ 102) goes on to say that “in no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery.” Thus, while a particular process a person may have designed for shelving books in his library cannot be protected by copyright, a description, explanation, or illustration of the process could be protected by copyright.

In addition, works of the U.S. government produced by government employees are in the public domain. This category includes works that are created by all agencies of the federal government, such as the Internal Revenue Service, federal legislation, the president’s speeches, and court rulings.

Works created by state governments and their employees may or may not be in the public domain.

Once materials are in the public domain, anyone can exercise a right of copyright without the prior permission of the copyright holder. For example, publishing a work from the public domain is not violation of copyright. In fact, the re-publication of such a work can generate new revenue, not for the original copyright holder, but for whoever publishes and markets it.

c.       Fair Use

Fair use is limited use without signing a license, and without paying a fee. It not only allows but also encourages socially beneficial uses of copyrighted works such as teaching, learning, and scholarship. There is never an immediate answer to the question, “Is this a fair use?” One must make a fair use determination based on sound judgment and the careful consideration of the situation at hand and that determination may take some time. Those who prefer a “yes” or “no” answer may be troubled by the ambiguous nature of fair use, but fair use cannot be reduced to a checklist. Fair use requires people to think.

But at least the fair use section of the copyright law is short and easy to read:

Sec.107. Limitations on exclusive rights: Fair use notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonograph records or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is fair use, the factors to be considered shall be:

i.        the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.

ii.      the nature of the copyrighted work.

iii.    the amount and substantiality of the portion used in relation to the copyrighted work  as a whole.

iv.    the effect of the use upon the potential market for or value of the copyrighted work.

See Exhibit B at the end of this section for a practical analysis of fair use.

The Supreme Court has framed the larger policy issue by saying that “to negate fair use one need only show that if the challenged use should become widespread, it would adversely affect the potential market for the copyrighted work.” Usually, one will need to investigate a few facts to assess the “market” and “effect” on the copyrighted work for a particular use. A person considering the issue of fair use might ask questions such as these:

What is the market and “potential” market?

Has a market developed at all?

What is its rough size – a handful of possible buyers for some precisely focused newsletters, or a wealth of takers for a Hollywood film?

Making a copyrighted work available to a small group of enrolled students for the purpose of teaching, learning, and scholarship is likely an easier fair use case than sharing that work with six billion people worldwide on a publicly accessible website. Ease and cost of acquiring permission also is a question to ponder and address in assessing the potential market.

d.      The TEACH Act

Before the TEACH Act was passed in 2002, section 110 did not address transmitting digital materials to students in distance education situations. Unlike fair use, the TEACH amendment is more of a checklist – one is allowed to do this and that, but you have to follow these particular conditions. The TEACH Act allows copyrighted works in digital formats to be digitally transmitted to students in the classroom or in distance learning environments without prior permission from the copyright holder. But make no mistake; the exemptions addressing the use of digital materials in the classroom are limited in scope. In particular, educational institutions must meet specific requirements before the exemption can be used.

e.       Public Displays and Performances in the Classroom

In the face to face teaching situation (physical classroom or other place devoted to instruction), instructors and pupils at non-profit educational institutions may display analog works protected by copyright holder. For audiovisual works, like videotapes, the copy used must be a lawful copy. But, as you know by now, copyright has to be confusing most of the time. When transmitting material via digital networks, the rules for the display and performance of copyrighted works to the classroom are more complex and detailed in nature.

See Exhibit C at the end of this section for analysis.

4.      Additional Rules for Digital Works and Digital Transmission of Works Protected by Copyright

a.       All materials used for display and performance in the classroom must be works that were lawfully made and acquired, or at least one should have every reason to believe that the copies are lawful copies.

b.      Teaching must occur at an accredited, non-profit educational institution. Accreditation for K-12 schools is recognition by the applicable state certification or licensing board. For higher education, the college or university must be approved by a regional or national accrediting agency recognized by the Council on Higher Education and Accreditation or the U.S. Department of Education.

c.       The use of the copyrighted resources must be within the confines of “mediated instructional activities” – integral to the course, under the direction of the course instructor, and analogous to the kinds of performances or displays one would expect in a physical classroom.

d.      The use of dramatic literary works – those works with a dramatic element like an opera or play – and any other work (including audiovisual works) is limited to smaller, discrete portions of the work unless performing or displaying the entire work is essential to the course. For example, an instructor teaching the course “Films of John Ford” probably needs to show one or more John Ford Films in their entirety to meet course goals. In the rare instance where it is necessary to transmit a digital copy of a film via a computer network to students in remote locations, TEACH could also apply, but only if the digital copy is necessary to meet pedagogical goals. The digital transmission is made for enrolled students only and to the extent technologically feasible, limited to enroll students.

To use these exemptions, educational institutions must also have in place copyright policies and copyright educational resources that promote lawful use of copyrighted works and that are readily available to instructors, staff, and students. In addition, students should be alerted to the fact that copyrighted works used in courses may be protected by copyright. Labeling works as protected by copyright and including the notice of copyright whenever possible is more important when works are in digital formats. Furthermore, the educational institution that transmits digital works must use technological protection measure (passwords, watermarking, encryption) that reasonably prevent:

i. retention of the work in accessible form for any time longer than the class session.

ii. unauthorized further dissemination of the work to others.

iii. activities that would decrypt or otherwise interfere with technological measures already employed by the copyright holder to prevent retention or unauthorized distribution of the work.

Digital materials are more vulnerable to copyright infringement because of the ease of reproduction and broad distribution. With TEACH, Congress said digital works should be more tightly controlled. To achieve this end, educational institutions are required to make a concerted effort to prevent infringements in two ways – by educating the educational community about copyright law and by using technology to limit the possibility of infringement.

5.      Effectiveness of Technological Controls Required by TEACH

Arguably, the most difficult aspect of interpreting the TEACH Act is the technological requirements expected of institutions who want to exercise the TEACH exemptions. Congress used the “reasonable measures” language as an acknowledgement that educators” judgment and our demonstration of good faith will come into play when educators implement protection technologies. The institution should take reasonable measures to protect copyrighted works as best as possible, given existing technology, its availability, and the technological capabilities of the individual school, college, or university.

Fair use is always an alternative option for educational institutions. Teachers and students can use digital materials for teaching if the use is a fair use. In fact, before the TEACH amendment, many educational institutions exercised fair use when using digital materials for educational purposes. As far as can be determined, none of these actions led to litigation. If the use of digital material is fair, the institution is not infringing. Note that with fair use, the institution is not required by law to meet the technological requirements outlined in section 110.

 6.      Course Packs

Publishers and other copyright holders have long been concerned about course packs, for a number of reasons. If course packs are used rather than textbooks, profits are affected. Publishers and other copyright holders believe that they should be compensated – through permission fees, for example – for the use of copyrighted material in a course pack. Indeed, copyright permission fees are an increasing source of income for many publishers. Publishers are able to continue to collect royalties even on materials they no longer print or make available in the market.

On the other hand, educators may feel that, if the materials are being used for non-profit, educational purposes, course packs are fair uses. After all, one of the exemplars of fair use listed in section 107 is “multiple copies for classroom use.” Even so, two court cases have found against course packs without copyright permissions.

Unfortunately, the copyright law does not tell us when permission is necessary for the copyrighted works included in course packs. We know that if a copyright exemption such as fair use does not apply, permission should be sought. Some people assert that the “first use” of a copyrighted work in a course pack is fair, and subsequent uses of the same material are unfair. The copyright law does not provide a specific indication that repeated use of the same item is an infringement. However, if the repeated use is conducted to avoid a purchase, the fourth factor – effect on the market – would certainly come into play, and permission should be sought. For those institutions that rely on the Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions, to make fair use decisions, repeated use may be in conflict with the “spontaneity” constraint. However, the Classroom Guidelines are merely one way to make decisions about copying. “True” fair use determinations (based on section 107) do not rely on the guidelines. Magale Library is the contact point for seeking permission for use when that need is determined. The Library currently is paying the copyright permission cost if it is not unreasonable.

7.      The TEACH Act and Reserves

The legislative history for the TEACH Act makes clear that exemptions to public performance and public display of resources outlined in section 110 do not apply to reserves. This makes sense if one considers that rarely would an instructor publicly display a journal article for classroom purposes. Students do not read their materials during the class period. It is more likely that a portion of a resource (like a graph or illustrative model) may be displayed in the classroom. Public performance applies only to works that are publicly performed (recitation, theatrical production, choreography) or that are shown or heard by means of a playback device (videos, motion pictures, sound recordings). Public displays are for work “on display” as in works that would be displayed in an art gallery.

See Exhibit D at the end of this section for additional information.

8.      Digital Millennium Copyright Act (DMCA) of 1998

The DMCA is the principal amendment that attempts to update the copyright law for the digital environment. This law remains unsettled and controversial. The DMCA:

a.       provides some protection to online service providers from liability for online infringement if certain conditions are true and particular rules are followed;

b.      allows libraries and archives to make up three reproductions for replacement or preservation purposes under certain conditions;

c.       gives copyright holders the right to control or deny access to digital works protected by copyright;

d.      makes the circumvention of technology used to protect copyrighted materials a civil and criminal offense;

e.       prohibits the manufacture, provision, importation of, and trafficking of ant-circumvention and anti-copying devices or software;

f.       prohibits tampering with copyright management information;

g.       maintains that rights, remedies, limitations, or defenses to copyright infringement, including fair use, are not affected regardless of new prohibitions on anti-circumvention technologies (although fair use is not a defense to the criminal act of circumvention);

h.      establishes that an ongoing, administrative rule-making proceeding be held to evaluate the impact of the anti-circumvention provisions on non-infringing uses of copyrighted works;

i.        directs the U.S. Copyright Office and the National Telecommunications and Information Administration of the Department of Commerce (NTIA) to produce a joint report on first sale and computer software exemptions and how encryption research may be affected by DMCA; and

j.        directs the U.S. Copyright Office to hold public hearings and make recommendations regarding distance education.

 Exhibits

 Exhibit A

Copyright for Published Works

Time of Publication

Conditions

Public Domain Status

Before 1923

None

In Public Domain

Between

1923 and 1978

Publish without a copyright notice

In Public Domain

Between 1978 and March 1, 1989

Published without a notice, and without subsequent registration

In Public Domain

Between 1978 and

March 1, 1989

Published without a notice, but with a subsequent registration

70 years after death of author, or if work of corporate authorship, the shorter of 95 years from publication, or 120 years from creation

Between

1923 and 1963

Published with notice but copyright was not renewed

In Public Domain

Between

1923 and 1963

Published with notice and copyright was renewed

95 years after publication date

Between

1964 and 1978

Published with notice

70 years after death of author, or if work of corporate authorship, the shorter of 95 years from publication, or 120 years from creation

Between 1978 and

March 1, 1989

Published with notice

70 years after death of author, or if work of corporate authorship, the shorter of 95 years from publication, or 120 years from creation

After March 1, 1989

None

70 years after death of author, or if work of corporate authorship, the shorter of 95 years from publication, or 120 years from creation

 

Copyright for Unpublished Works

Type of work

Copyright Term

What Became Public Domain on January 1, 2003 in U.S.

Unpublished works

Life of the author + 70 years

Works from authors who died before 1933

Unpublished anonymous and pseudonymous works,  and works made for hire

(corporate authorship)

120 years from date of creation

Works created before 1883

Unpublished works created before 1978 that are published before January 1, 2003

Life of the author + 70 years or December 31, 2047, whichever is greater

Nothing. The earliest publications can enter the public domain is January 1, 2048

Unpublished works created before 1978 that are published after December 31, 2002

Life of the author + 70 years

Works of authors who

died before 1933

Unpublished works when

 the death date of the

 author is not known

120 years from date of creation

Works created before 1883

 

Exhibit B

Applying the Four Factors

One useful way to begin any fair-sue analysis is to examine the model prepared by Professors Kenneth D. Crews and Dwayne K. Buttler: (See below)

The model gathers together a multiplicity of facts and circumstances that have occurred in fair use cases and that courts have found significant in weighing how those facts and circumstances fit within the four-factor analysis.

(Sample analysis in Appendix B – Buttler’s Analysis)

Buttler’s Analysis

1.      Purpose

E-reserve service furthers the teaching, learning, and scholarship of students. Libraries typically limit the use of resources solely to particular students enrolled in specific classes, not allowing access to all who might happen upon a webpage. That limit further reinforces and demonstrates the purpose of using the materials: teaching and learning. E-reserves also can serve as something of a “multiple-copies-for-classroom-use” opportunity, yet in practice actually might lessen the number of copies. The library typically would make only one copy of the work and would make the lone copy available electronically to multiple students. These facts and circumstances might generally favor a finding of fair use, but they certainly do not end the fair use inquiry. All four factors must be analyzed and weighed applying fair use, not just the purpose.

2.      Nature

This factor asks about the nature of the original work. Fair use generally favors the use of published works over unpublished works. Unpublished works enjoy a bit thicker protection under the theory that the author should have the right to decide not only when to publish but also whether to publish at all. However, the statute itself indicates: “the fact that a work is unpublished shall not itself bar a finding of fair use.” Thus, fair use could support the use of unpublished works in some circumstances. The other three factors, for instance, might weigh heavily in favor of fair use. Making use of more factually based works also can support a fair use finding. On the other hand, using fictional or highly creative works such as art, music, novels, plays, and the like might make a fair use outcome less likely. Professor Kahn assigns a range of diverse readings and materials; some may fall easily within fair use, others outside its ambit. Nature is but one of four factors.

3.      Amount

            In general, less is better, but there may be instances when using a greater amount of work, maybeeven the whole thing, is legitimate. Purpose relates closely to amount or, more precisely, ought to relate closely to amount of the copyrighted material used. The more one uses a given work, the more one will need to articulate – not only well but also clearly – how that amount might be critical to serving one’s purpose, for instance, directly supporting teaching goals and pedagogy.

            A difficulty in understanding and applying an incremental approach, that is an amount standard, to fair use determinations is the seeming bias toward print materials. It is usually less difficult for faculty, librarians, and others to appreciate how one might limit the use of written works to   particular teaching and learning designs rather than a photograph or musical work. If students do not need to read a whole article to understand a particular nuance, for instance, why copy and assign the whole work? Just copy and assign directly relevant portions of it. The more difficult conundrum is communicating visually or aurally in their broadest sense. Think about teaching photography and photographic principles. Can one teach photography by using only increments or percentages of photographs or other visual works? Is the lower left-hand corner, somewhere near the middle, just above the border, enough to meet learner needs? Probably not. What about         teaching music composition? Is listening to 10 percent or ten seconds of a particular worksufficient to convey the flavor of the work or something of more substance? Can one use a whole work and still fit within fair use? Such a quandary can raise difficult challenges in applying fair use. Whole works have successfully constituted fair use in some fairly narrow instances. Using whole works also has weighed against fair use in other instances.

 4.      Effect

Effect is in some ways the most mysterious, and perhaps most irreconcilable, factor of fair use. Some courts have suggested that it might “weigh” more than the other factors, but the Supreme Court has sought to refine and arguable to extinguish this narrow interpretation. Copyright owners might claim that effect ought to determine the outcome of a fair use analysis. If there is a significant loss of revenue to the copyright holder, then the effect would be significant.

Exhibit C

Showing a Movie on Campus

If a person is showing a movie to anyone other than family and friends in a nonpublic place, the following questions may apply to determine whether a public performance license is required. All of this assumes that the copy of the movie is a legal one.

Is the movie being shown as a part of live, face to face teaching activities in a classroom or similar place devoted to instruction?

If yes, then a public performance license is not required, but fair use and TEACH still apply.

If no, is there any specific license for nonprofit educational purposes?

If no, then a public performance license is required.

Exhibit D

Library Reserve Policy Options

Following are three different hypothetical approaches a library might take, from the risk-averse approach to the more liberal, when developing library reserve copyright policies. It cannot be said with any certainty that a court of law would consider any of these options non-infringing.

1.      Fair use claimed for all items, for a limited time. Photocopied or scanned material will be placed on course reserve for a number of semesters before permission is requested of the copyright holder. This will be done for all items, regardless of whether the library owns an original, except for “consumables.” These materials will not be copied for use on course reserve. Of course, permission will never be sought for works in the public domain. The advantage of this approach is that legally it is fairly – though certainly not absolutely – safe. The disadvantages are that it requires extensive tracking of use, and that asking permission always carries with it the possibility of either a refusal or of a request for a fee that is prohibitive.

2.      Fair use claimed for a limited time for items not owned; indefinitely for those the library has purchased. Same as (1), except that permission will not be requested to make copies of items the library has already purchased for the educational use of its clientele. For materials that are in print, a copy of an un-owned item may be purchased for the library in lieu of asking permission and paying a fee. The advantages of this approach are that it is fairly easy to articulate to staff and faculty, and there are fewer items that require tracking of use. The disadvantages are that some sort of checking must be done to determine (1) whether items are owned, (2) that the legalities are less certain, and (3) that (for those items that are not owned) permission requests always carry with them the risk of refusal or prohibitive fees.

 3.      Fair use claimed indefinitely. Fair use will be claimed any time the professor requests that the material be placed on reserve, except for “consumables.” The advantage of this approach is that it is very easy to articulate to faculty and staff. The disadvantage is that the legalities are perhaps even less certain.

                        Note: The three scenarios outlined above are by no means the only possible ones but are intended to serve as broad examples of possible approaches to copyright management ofreserve materials.


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