III.  COPYRIGHT POLICY AND PROCEDURES

 

BACKGROUND

 

Copyrighted works include articles, books, photographs, movies, art, music, software, databases, and web pages. A copyright owner is the author or creator of the work, or, if the copyright has been legally transferred, perhaps a publisher or other agent. As a result of changes in the copyright law, it is no longer necessary for the author to register the work with the Copyright Office or to insert a copyright notice in the text. A work is considered to be copyrighted as soon is it is created. Federal law gives copyright owners various exclusive rights over what happens to their work. Others may not copy the work, make a derivative work, distribute the work, or perform the work. However, copyright law does provide some accommodation for the needs of educational institutions through the doctrine of fair use.

 

FAIR USE

 

Built into the copyright law is the doctrine of fair use, which enables educators, operating within certain guidelines, to copy protected material without the owner's permission. It is important to understand that merely referring to fair use will not protect educators from infringement charges, if their use of the protected material is a serious violation of the guidelines for fair use. Penalties for copyright violation include fines of up to $250,000. If the college is sued for copyright infringement, the responsible employee will be held liable.

 

The Copyright Act establishes four basic factors to be examined in determining whether a use constitutes a fair use under the copyright law. These factors are discussed below.

 

1) The nature of the use: The courts are more likely to view a use as fair if it occurs at a nonprofit educational institution; if the purpose is teaching, research, or scholarship; and if the use is restricted to a class or other small group.

2) The nature of the copyrighted work: The courts are not as ready to acknowledge fair use in the case of unpublished or highly original and creative work as they are in the case of mostly factual or non-fictional work.

 

3) The amount and substantiality of the portion reproduced: It is important that the amount copied be small and that the portion reproduced not be central or significant to the entire work.

 

4) The effect of the use in question upon the potential market for the copyrighted work: Infringement of copyright is more likely to be found if sales of the copyrighted work have possibly been impaired by the reproduction; if many copies were made and this was done year after year; if you did not seek permission from the copyright owner even though affordable permission was available; if there was a reasonably available licensing mechanism that you did not make use of; or if you made the copied material available on the Web.

 

THE INTERNET AND COPYRIGHT

 

Remember that the contents of a web site are implicitly protected by copyright, even if there is no copyright notice posted on the site.

 

Linking to another web site is not normally a violation of copyright, but if you are going to cause the remote site to come up within a frame surrounded by your own material, you need the permission of the owner of the remote site.

A web site associated with The University of Texas System contains an excellent discussion of what is permissible and what is not when it comes to the use of material found on the Internet:

 

        http://www.utsystem.edu/OGC/IntellectualProperty/useofnet.htm

DISTANCE EDUCATION AND COPYRIGHT

 

In 2002, the “Technology, Education and Copyright Harmonization Act” (the TEACH Act) was signed into law. This act sets forth guidelines for educational institutions that use copyrighted materials in distance education, including their use on web sites.

 

A thorough discussion of this complex law is provided by the American Library Association on one of its web sites. Starting from the organization's home page (www.ala.org), navigate as follows to reach this discussion: Home—Our Association—Offices—Washington Office—Issues—Copyright—Copyright-Related Pages—Distance Education and the TEACH Act.

 

CLASSROOM PHOTOCOPYING

 

The widely published guidelines for classroom photocopying that are presented below do not have the weight of law but the college encourages adherence from all employees. In particular, no one should ever distribute to classes the same copyright-protected materials year after year without getting written permission from the copyright owner.

 

The following information is taken from the Copyright Primer for Librarians and Educators, Mary Hutchings Reed, l987, pp. 13-16.

 

The legislative history of the Act provides teachers and librarians with guidelines as to the fair use of copyrighted materials photocopied from books and periodicals for classroom use.  Although the guidelines refer to teachers, they are also applicable to librarians and other instructional specialists working with teachers.

 

The guidelines provide a minimum.  Copying for classroom use that exceeds the guidelines may be also justified in special circumstances under the rubric of fair use.

 

The guidelines embody three standards:  brevity, spontaneity, and cumulative effect.  The following guidelines are printed in the Report of the House Committee on the Judiciary (House Report No. 94-1476):

 

AGREEMENT ON GUIDELINES FOR CLASSROOM COPYING IN NOT-FOR-PROFIT EDUCATIONAL INSTITUTIONS With Respect to Books and Periodicals

 

The purpose of the following guidelines is to state the minimum and not the maximum standards of educational fair use under Section 107 of H. R. 2223.  The parties agree that the conditions determining the extent of permissible copying for educational purposes may change in the future; and conversely that in the future other types of copying not permitted under these guidelines may be permissible under revised guidelines.

 

Moreover, the following statement of guidelines is not intended to limit the types of copying permitted under the standards of fair use under judicial decision and which are stated in Section 107 of the Copyright Revision Bill.  There may be instances in which copying which does not fall within the guidelines stated below may nonetheless be permitted under the criteria of fair use.

 

GUIDELINES

 

I.  Single Copying for Teachers

 

A single copy may be made of any of the following by or for a teacher at his or her individual request for his or her scholarly research or use in teaching or preparation to teach a class:

 

A.       A chapter from a book;

B.       An article from a periodical or newspaper;

C.       A short story, short essay or short poem, whether or not from a collective work;

D.       A chart, graph, diagram, drawing, cartoon or picture from a book, periodical, or newspaper.

 

II.   Multiple Copies for Classroom Use

 

Multiple copies (not to exceed more than one copy per pupil in a course) may be made by or for the teacher giving the course for classroom use or discussion, provided that:

 

      A.  The copying meets the tests of brevity and spontaneity as defined below; and,

      B.  Meets the cumulative effect test as defined below; and,

      C.  Each copy includes a notice of copyright.

 

DEFINITIONS

 

BREVITY

 

      A.  Poetry

 

               1. A complete poem if less than 250 words and if printed on not more that two pages

               2. From a longer poem, an excerpt of not more that 250 words.

 

      B.      Prose

 

               1. Either a complete article, story or essay of less than 2,500 words

               2.            An excerpt from any prose work of not more than 1,000 words or 10 percent of the work, whichever is less, but in any event a minimum of 500 words.

 

                        [Each of the numerical limits stated above may be expanded to permit the completion of an unfinished line of poem or of an unfinished prose paragraph.]

 

      C.  Illustration

 

               1.            One chart, graph, diagram, drawing, cartoon or picture per book or per periodical issue.

 

      D.  "Special" works

 

               1.            Certain works in poetry, prose or in "poetic prose" which often combine language with illustrations and which are intended sometimes for children and at other times for a more general audience fall short of 2,500 words in their entirety.  Paragraph B above notwithstanding, such "special works" may not be reproduced in their entirety; however, an excerpt comprising not more than two of the published pages of such special work and containing not more that 10 percent of the words found in the text thereof, may be reproduced.

 

SPONTANEITY

 

      A.     The copying is at the instance and inspiration of the individual teacher, and

 

      B.      The inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission.

 

CUMULATIVE EFFECT

 

      A.     The copying of material is for only one course in the school in which the copies are made.

 

      B.      Not more than one short poem, article, story, essay or two excerpts may not be copied from the same author, nor more than three from the same collective work or periodical volume during one class term.

 

      C.     There shall not be more than nine instances of such multiple copying for one course during one class term.

 

               [The limitations stated in B and shall not apply to current news periodicals and newspapers and current news sections of other periodicals.]

 

III. Prohibitions as to I and II Above

 

      Notwithstanding any of the above, the following shall be prohibited:

 

      A.         Copying shall not be used to create or to replace or substitute for anthologies, compilations or collective works.  Such replacement or substitution may occur whether copies of various works or excerpts therefrom are accumulated or reproduced and used separately.

 

      B.      There shall be no copying of or from works intended to be "consumable" in the course of study or of teaching.  These include workbooks, exercises, standardized tests and test booklets and answer sheets and like consumable material.

 

      C.         Copying shall not:

               (a)    substitute for the purchase of books, publisher's reprints or periodicals;

               (b)    be directed by higher authority;

(c)         be repeated with respect to the same item by the same teacher from term

         to term.

 

      D.     No charge shall be made to the student beyond the actual cost of the photocopying.

 

Advisory Bulletin of Attorney General of the Commonwealth of Virginia.  October 26, 1981.

 

Schools operated and supported by the Commonwealth of Virginia may be liable for copyright infringement pursuant to the provisions of the United States Copyright Act [17 U.S.C. 101, et seg.]  with respect to copyright protected works if they photocopy such works without the authority of the copyright owner unless such photocopying is permitted under the "fair use" provisions of copyright law.  In this latter connection, the provisions of U.S.C. 107 apply.