Copyright EssentialsFor Educators©

Nan MyersAssociate Professor

Director for Public ServicesWichita State University Libraries

February 2008

Presentation Outline

Copyright Protection and the Law Fair Use and TEACH

Fair Use in a Paper (Analog) World Fair Use in a Digital World

Reserves & E-Reserves Online Courses Blackboard

Coursepacks And more … audiovisuals, videos, taping, computer

software, scanners, music, multimedia Managing copyright in educational institutions

Copyright ProtectionRights of the Creator

Right to reproduce the work Right to prepare derivative works based upon

the work Right to distribute copies of the work Right to perform the work publicly Right to display the work publicly Right to digital audio transmission (for sound

recordings) Right to assign these rights to others

What works are protected?

Literary works, incl. databases & softwares Musical works, incl. accompanying words Dramatic works, incl. accompanying music Pantomimes and choreographic works Pictorial, graphic and sculptural works Motion pictures and other audiovisuals Sound recordings Computer programs Architectural works

Timeline: U.S. Copyright Law & Guidelines 1790 – U.S. Constitution 1886 – Berne Convention (U.S. became a

signatory in 1988) 1909 – Revision of Copyright Act

28 years plus 28 years 1976 – Revision of Copyright Act

Life plus 50 years, Fair Use, Section 108 for libraries

Timeline, continued:

1994 – CONFU (Conference on Fair Use): developing guidelines for electronic environment.

1998 – Digital Millennium Copyright Act and Sonny Bono Term Extension Life plus 70 years

2002 – TEACH Act (Technology, education and copyright harmonization)

Copyright for Education: Quick Cues Fair Use

See the Blackboard handout called

“Red Light, Green Light” Technology Education and Copyright Harmonization Act

See the checklist for TEACH Review “Crash Course in Copyright” from the University

of Texas Systemhttp://www.utsystem.edu/ogc/Intellectualproperty/cprtindx.htm

What is “fair use”

Portions of a copyrighted work may be used without the author’s permission for specific purposes. This is referred to as “fair use.”

For purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarships or research.

Fair Use

The “Educational Exemption” Encourages education and research Permits users conditional rights to use or

reproduce copyrighted materials

Four Fair Use Factors

1. Purpose and character of the use2. Nature of the copyrighted work (fact vs.

imagination)3. Amount and substantiality of the portion used

in relation to the work as a whole4. Effect of the use upon the potential market

for or value of copyrighted work

The Four Factor Fair Use Test is “Key” – Commit it to Memory Weighing and Balancing

No single factor is determinative All four factors must be weighed and balanced. Findings as to one factor influence the weight given to

other factors. Some factors, the first one in particular, are more

important than others. The character of the use under the first factor affects

the weight given the third and fourth factors.

Also factor in “intention”

“Intention” has three levels: Innocent Standard Willful

Damages and court costs may also be levied against the guilty party

Who is liable?

“Deliberate infringer” “Contributing infringer”

One who helps “Vicarious infringer”

One who “knows” Use of library-owned equipment Administrative liability

Fair Use for Faculty

Make sure the use is for education, and in a non-profit setting. Use needs to be germane to the instruction of the topic.

Make sure you legally obtain the copy. When possible, use factual works, but when

necessary, creative works can be used to illustrate a point or as a basis for criticism or commentary. You may also use excerpts from periodicals.

Fair Use for Faculty

Make sure a copyright notice and complete source citation appears on the first page of each copy used, either passed out in class, placed on Reserve, or posted on Blackboard.

Unless you are teaching a class on a specific author, it is not a good idea to use too many items from one author. Also, you need to either obtain permission or use another author after one-time use.

Fair Use for Faculty

Use of copyright-protected material should not be a substitute for students purchasing textbooks or other books readily available in the market place, such as course packs.

Your use should not dilute the market or potential income of the copyright holder.

Licensing agreements supersede copyright. For example, computer software comes with separate licensing agreements that put limits on uses, precluding “fair use” provisions.

Technology, Education, and Copyright Harmonization Act Distance Education: expands categories of works Removes concept of physical classroom Allows storage of copyrighted materials on a server Permits institutions to digitize works to use in

distance education Except when digitized work is subject to technological

protection measures Transmission must be limited to students enrolled in

the course for which the transmission is made. Transmission must be made by accredited non-profit

educational institutions.

TEACH, continued

Clarifies that “participants in authorized distance education courses and programs are not liable for infringement for any transient or temporary reproductions that occur through the automatic technical process of digital transmission.”

Fair Use in a Paper World

Guidelines for Classroom Teachers

Single Copies for Teachers

A single copy of a chapter from a book A single copy of an article from a periodical or

newspaper A single of a short story, short essay, or short

poem A chart, graph, diagram, picture or cartoon

from a book, periodical or newspaper

But do not:

Create your own anthology or book from “pieces” gathered

Copy from works that are “consumable” like workbooks, exercises, tests

Substitute copying for purchasing Copy the same item from term to term Make copies of copyrighted, syndicated

cartoon characters

Multiple copies for classroom use

Can make only one copy for each student in the class

Each item copied must be for classroom use or discussion

Each copy must include a notice of copyright (it can be simple)

Teachers must actually use the copies

Three tests for copying

Test 1: Brevity Poetry – All, if less than 250 words. If longer

than 250 words, only 250 words can be copied.

Prose – All, if less than 2,500 words. For other, no more than 1,000 words or 10%, whichever is less.

Three tests for copying

Test 2: Spontaneity The individual teacher must initiate the making

of multiple copies. The decision to copy must be close to the time

of use. Otherwise, permission must be requested.

Three tests for copying

Test 3: Cumulative Effect Copying must be done for only one course. Limits – generally 3 or fewer items from a

collective work; 3 or fewer items from one periodical volume.

No more than 9 items may be copied in multiples per course during one class term.

Currents news articles from newspapers or magazines are exempt from this.

Copies for Vertical Files

Illegal to make copies and put them in a vertical file.

Acceptable use to include original magazine articles or pictures cut out of a magazine.

So, remember to review:

Fair use Purpose and character of the use Nature of the work Amount and substantiality used Is use denying income to copyright holder?

Degrees of intention Guidelines of brevity, spontaneity, and

cumulative effect

Fair Use in a Digital World

Guidelines for Faculty,

Libraries and Other Partners

Is content on the Internet copyrighted?

Yes – everything on the Internet (including everything on the World Wide Web) is copyrighted.

Documents on the Web (and other digital formats) are easier to reproduce and distribute, but that does not change the copyright.

Digital content is still content – and thus copyrighted. Copying or reproducing without permission may be illegal.

Internet, continued

Notification of copyright status is not required, but remember that Web-based materials are copyrighted just as print and audiovisual materials are.

Large portions of documents, images and Web sites must not be taken without permission.

Small portions (as with print materials) can be used by teachers in class.

Many Web pages grant permission to educators automatically.

If in doubt, request permission to use – usually an e-mail address is posted on the site.

Is linking to something on the Web a copyright violation?

No – a hyperlink from one Web page to another is not a copy of the original work.

You are not expected to request permission to link to a Web page, but it is considered courteous to do so.

Reserves & E-Reserves

The Library and the Reserve Room are considered extensions of the classroom, and must conform with fair use principles.

Who makes the copies? Does not matter – the Library is the agent of the faculty member who is an agent of the University.

Reserves & E-Reserves

What happens to copies at the end of the semester? Widespread belief that libraries should not retain a

copy longer than one semester. Obtain permission for uses beyond one semester. The faculty member should be considered the

owner of the copy.

Copies for Reserve

Fair Use permits single copies of a book chapter, an entire periodical article, or a single poem.

Multiple copies must be: Of reasonable amount for size of class Less than six = good guideline Each copy must have notice of copyright Cannot diminish the market for the original

Materials which may be placed on reserve without obtaining copyright permission:

Exams Lecture notes Virtually all Government publications (there

are some exceptions)

Portions of copyrighted materials that may be photocopied & placed on electronic reserves:

A chapter from a book An article from a periodical or a newspaper A short story, essay or short poem A chart, graph, diagram, drawing, cartoon or

picture from a book, periodical or newspaper

Copyrighted materials that may not be photocopied or scanned and placed on reserve:

Pages from works intended to be “consumable” in course of study or teaching. These include workbooks, exercises, standardized tests,

test booklets and answer sheets.

An entire book, whether in-print or out-of-print (electronic reserves only)

Length of time photocopied/scanned materials may be on reserve:

Photocopies of copyrighted materials may be placed on reserve for one semester only without permission

Permission is required to keep these materials on reserve for more than one consecutive semester

When copyright permission is needed:

When a journal article, book chapter or a portion of a work is on reserve for consecutive semesters

When multiple articles from one issue of a journal are needed for reserve during the same semester

When multiple chapters from a book are needed during one semester

How to Interpret Guidelines for E-Reserves?

This is a major transitional period, with significant disagreement about the scope of rights and privileges.

Fair Use for E-Reserves

1994 Conference on Fair Use Draft “Electronic Reserve Guidelines” did not

achieve consensus support, but do provide a good framework for thinking about fair use in a reserve context. Yet, they are not the law.

The “Guidelines” permit placing small parts of others’ works on reserve for one semester without permission.

Nature of E-Reserves

An electronic reserve request will always involve copying, but will also involve at least one and perhaps both the performance rights (public display and/or performance).

However, it is not a face-to-face performance or display. It is a “transmission.”

E-Reserves Rules-of-Thumb

Basically, rely on fair use analyses described for print copies & sound and video recordings & photo image duplication.

Limit access to students registered for the class; or computers located in specific places.

Don’t reuse the same materials over and over without asking for permission.

Longer works, such as books, should not be placed on E-Reserves.

Course packs should not be placed on Reserve.

Online Courses & Blackboard

1996 – “Fair Use Guidelines for Educational Multimedia” published by a Congressional subcommittee on intellectual property.

You can make fair use of copyrighted digital media for specific educational tasks under certain limitations.

More stringent fair use limitations for digital media than other media, because digital is much easier to reproduce and distribute.

What do the guidelines cover?

Educational material created by faculty as part of curriculum-based instruction;

By students as part of assignment; As part of conference presentations or

professional portfolios.

What are the limits?

Time – Use is limited to two years after the 1st instructional use.

Copying – Every effort should be made to prevent the consumer of the content from making more copies. Students should be told not to make copies. Material should only be available for 15 days, but can then be put in Reserve for two years. After that, permission from the copyright holder is required.

Limits, continued

Distribution – must be limited to students enrolled in the course and there must be “technological limitations on access to the network and educational multimedia project (such as password or PIN).”

Limits: Portion (amount of a single copyrighted work that can be included)

Media Motion media (e.g., video)

Text material

Music, lyrics, music video

Allowable Portion Up to 10% or 3

minutes whichever is less.

Up to 10% or 1000 words, whichever is less

Up to 10%, but no more than 30 seconds.

Limits: Portion, continued

Media Illustrations, Photographs

Numerical Data Sets (e.g., databases)

Allowable Portion No more than 5 images

from an artist/photographer, or no more than 10% or 15 works from a published collective work.

Up to 10% or 2500 fields, whichever is less.

See Handout: “Copyright and Blackboard”

Chart of “Red Lights” and “Green Lights” for most items you would post in Blackboard.

Checklist for the TEACH Act

Academic Coursepacks

What is an academic coursepack? Collection of materials (usually photocopied)

used in the classroom, distributed either in book format or as class handouts.

Commonly offered for sale in campus bookstores; sometimes sold in class.

Most publishers grant “clearances” for use of their books or articles in coursepacks for a fee. Clearances normally last 1 semester.

There is no such thing as “fair use” for coursepacks.

What can be used in coursepacks without permission:

Works not protected by copyright, such as facts, government documents, and works in the public domain

Works that you own Works for which you have a license that

permits this use

Do not:

Copy to substitute for the purchase of an anthology, collective work, or work intended to be “consumed” in the course of study or teaching

Repeat use of the same item from semester to semester

Charge students beyond the actual cost of the photocopying

Coursepacks Rules of Thumb:

Limit what you photocopy to a single chapter from a book, or

Limit to a single article, essay, or story from a periodical issue or newspaper, or

Limit to a single chart, graph, or illustration from a book, periodical issue, or newspaper, or

Limit to other similarly small parts of a work.

Coursepacks “Rules” continued:

Include photocopies of no more than nine copyrighted works in a coursepack.

Include a bibliography in the coursepack with appropriate citation to the original source of each item in the packet.

Include a copyright notice and appropriate citation on each photocopy.

If your use is outside the scope of “fair use,” obtain permission from the copyright owner for each item included in the coursepack.

Save requests and responses in your personal files.

Audiovisuals

The same fair use guidelines that apply to print materials DO NOT apply to audiovisuals.

Producers worry about unauthorized copies and unauthorized performances of protected works.

Multiple copyrights usually involved, making permissions more difficult.

Audiovisuals: 5 Fair Use Criteria

Performance in nonprofit educational institution; Performance is used for face-to-face teaching; Performance is presented by instructors or pupils; Performance takes place in a classroom or similar

place for instruction (including the library); and Performance is of legally acquired (or legally copied)

copy of the work.

Videos

“Home Use Only” stickers on videos are NOT binding on schools in any way, so long as the video is not used for entertainment, reward, or time-filling.

“Home Use Only” tapes may be used in instructional situations.

Rentals may be restricted to home use if an agreement was signed.

Taping Broadcasts

From open air (not cable or satellite) For instructional use only, under following

conditions: Institution retains no longer than 45 days Use only once with each class during first

consecutive school days of 45-day period. Cannot record regularly in anticipation of

requests

Taping Broadcasts, continued

Limited copies may be reproduced to meet legitimate needs of teachers

Program recorded in entirety and may not be altered

But, programs do not need to be used in their entirety

To tape from cable or satellite, must have permission from copyright holders

Computer Software

Software piracy = felony status. Users are in the arena of contract law. License vs. copyright

Site licenses Legitimate copying vs. piracy

Software can be placed on 1 hard drive Only 1 copy as backup is allowed

Computer Software:Direct Infringement Downloading software Uploading software Making software available for download Transmitting software files

Computer software:Indirect infringement Contributory infringement applies Linking to FTP sites where software may be

unlawfully obtained. Or, informing others of the sites.

Vicarious infringement applies If you have authority and ability to control the

infringer If you are deriving a financial benefit

Scanners:

Original copyright holder holds the right of reproduction, adaptation and display.

BUT, a student may use a scanned copyrighted image in a report.

Staff members CANNOT scan a cartoon or article into a newsletter.

Scanned copies of photographs cannot be modified in any way.

Mediated Courseware/Multimedia Productions Mediated Courseware: course materials

disseminated through electronic media Multimedia Productions: Segments of

materials taken from a variety of copyrighted sources, such as CD-ROMs, laser discs, audio recordings, and videotapes

Fair Use for Music Materials

Permissible: Emergency copying to replace purchased

copies which are not available for performance. Copies of excerpts, so long as they do not

comprise a performable unit; in no case more than 10% of the whole work.

Purchased copies may be edited or simplified, so long as this does not disturb the fundamental character of the work.

Fair Use for Music Materials

A single copy of a sound recording (tape, disc, cassette, etc.) of performances by students may be made for evaluation or rehearsal purposes and retained by the institution or teacher.

A single copy of a sound recording

What are the restrictions?

Conditions of use Length of time they may be kept Limitations on size or portion, for ex:

Motion media—up to 3 minutes or 10%, whichever is less.

Music, lyrics, music videos—up to 10% of the original work, but no more than 30 seconds; and no alterations.

Permissions

If uncertain, ask permission. Make requests far enough in advance – a

month to 6 weeks. For Internet information, a week should suffice.

Send request to correct party. Research through Library of Congress Copyright Office: http://www.loc.gov/copyright

Copyright Clearance Center

U.S.-based rights broker: (http://www.copyright.com) Has agreements with most standard U.S. commercial

and academic publishers. Sets for the rate structure and any restrictions on paper copies of each work.

Also handles digital permissions through its Electronic Course Content Service.

Can simplify and streamline permissions.

Managing Copyright in Educational Institutions: Some Suggestions

Have an institutional policy. Ask faculty to sign a copyright compliance

agreement. Have an institution-wide copyright

management program. Provide copyright training to educational

technologists who manage files in Blackboard for professors, departments or colleges.

Post copyright notices on photocopy machines, computers and other equipment.

Know Institutional Policies

Wichita State University Policies

Research and Sponsored Programs

http://webs.wichita.edu/inaudit/ch_9.htm

Intellectual Property (rev. Dec. 1, 2007)

http://webs.wichita.edu/inaudit/ch9_10.htm

And, most importantly:

Train faculty and employees in copyright awareness.

Model copyright compliance for your students: Have copyright guidelines for students too Explain the difference between copyright

violation and plagiarism.

Contact:

Nan Myers

Associate Professor

Director for Public Services Wichita State University Libraries

Voice: (316) 978-5130 E-mail: nan.myers@wichita.edu

(The preceding slide presentation is not intended to be construed as legal opinion. It is derived from publicly available information. However,

the presentation sequence and layout is copyrighted. © 2004-2008)