Copyright policy guidelines

Table of Contents:

Overview: These Guidelines summarize the proper use of copyrighted works in the academic community. Their contents are listed below.

1. How to Use the Guidelines. Chapter 1 provides a discussion of how to apply these Guidelines when clearing copyright until you can document a good faith determination that your proposed use is arguably permissible. Chapter 1 covers ensuring that the law relied on is current and reliable, describes the scope of a reasonable investigation, and reviews other considerations (Digital Millennium Copyright Act, privacy, publicity, trademarks and other rights).

2. How to Clear Copyright. Chapter 2 explains how to clear copyright. Clearing copyright means determining that a proposed use of copyrighted materials is lawful. Otherwise, permission should be obtained. The chapter explains:

2.1 What is copyrighted. Generally, copyrightable works include literary works (e.g., books, poems, and essays), architectural works, musical works, dramatic works (e.g., plays, dance, and comedy routines) games, movies, videos, photographs, and all kinds of digital works (e.g., computer programs, web pages and Java applets). Copyright protection is automatic from the moment the work is created.

2.2 The copyright owner’s exclusive rights. Among other things, the copyright owner has the federal statutory exclusive rights to make and distribute paper or electronic copies, to perform and display a work, and to incorporate the work or parts of it into another, later copyrighted work (“derivative work”).

2.3 Using materials from the Internet. In response to increasing copyright litigation, the University has published “Using Materials from the Internet” (Appendix 2) to more fully inform the University community about the legal risks in unauthorized downloading, file sharing and other forms of improper use of copyright-protected materials. Members of the University community are encouraged to seek guidance from the University counsel with questions about the legality of various uses of copyrighted materials.

2.4 The general rule. The general rule is that nothing should be included in a course-pack or used in contravention of an author’s rights unless copyright is cleared.

2.5 The exceptions to copyright infringement. Chapter 2 explains the exceptions to copyright infringement for:

2.5.1 The public domain. Generally, works fall into the public domain when copyright expires. Some works, like specific government works , are in the public domain on creation.

2.5.2 The educational exceptions to copyright infringement: The classroom use exception and the fair use exception. The classroom use exception is created by Section 110(1) of the U.S. Copyright Act, covering the “performance” or “display” of copyrighted works in the classroom, and providing broad exceptions to copyright infringement, including “performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction. . . .” Because neither copying nor permanent storage of audiovisual work falls within the performance exception, you must evaluate the fair use exception to determine if copying or permanent storage is permissible.

To determine whether a use is a “fair use,” the law requires consideration of a four-factor test: the purpose and character of the use (commercial nature or nonprofit educational); nature of the work (factual or creative); the amount and substantiality of the portion used relative to the whole; and the effect on the potential market or value of work. (17 U.S.C. § 107).

2.5.3 The classroom guidelines. Chapter 2 provides a list and discussion of guidelines useful in determining if a proposed use in academia is a fair use: the so-called “Classroom Guidelines.” Four sets of guidelines exist: Fair use guidelines for classroom copying with respect to books and periodicals (1976); educational uses of music (1976); off-air videotaping (1981); and educational multimedia (1996). Although none of these guidelines has the force of law, copying that falls within the guidelines is generally considered to be fair use and permissible. These guidelines should be consulted because they provide guidance based on federal case law and academic norms that specifically distinguish among situations based on various tests (including the test of brevity, the cumulative effect test, and tests that inquire into the number of copies made/distributed per instructor, course and author and the like, and charges to the student beyond the cost of photocopying (not permitted)). Fair use guidelines have been developed for three groups of materials: print materials, music, and television. You must consider the type of material and you must apply the appropriate fair use guidelines. The guidelines also cover copying parts of books and sheet music.

2.5.4 Distance learning and the TEACH ACT. The TEACH Act (Technology, Education, and Copyright Harmonization Act of 2002, 17 U.S.C. § 110(2)) provides a list of distance learning activities exempt from the scope of copyright infringement. The law covers the scope of educators’ rights to perform and display works and to make the copies integral to such performances and displays for digital distance education. The Act applies to a virtual classroom, such as those faculty members create using the University’s course management software known as “ANGEL”. The rights identified by the TEACH Act are more restrictive than those applicable to face-to-face teaching.

2.5.5 Library and archive rights. Chapter 2 discusses 17 U.S.C. § 108, which provides a set of rules for library and archive uses of material.

2.5.6 The “First Sale” doctrine. Under 17 U.S.C. § 109, anyone who owns a lawfully manufactured and acquired copy of a published copyrighted work may distribute that copy by resale, rental, or loan.

3. Special Works. Chapter 3 identifies uses of copyrighted materials requiring prior written permission from the copyright owner. Uses for profit usually require permission. The chapter discusses special restrictions on use that apply to the following kinds of works:

3.1 Unpublished works (including theses and dissertations)

3.2 “Special works” (maps, anatomical diagrams and drawings)

3.3 Consumable works (workbooks, exercises, standardized tests and test booklets, answer sheets, and like consumable materials)

3.4 Music and other performances

3.5 Digital works

3.6 Software and databases

4. Permissions. Chapter 4 explains how to obtain permission in cases of doubt and how to document the permissions you receive; what information supports a copyright query or permission request; and from whom permission may be sought.

5. Infringement. Chapter 5 provides an overview of legal actions in the intellectual property field, describes the nature of infringement claims (e.g., in addition to directly infringing an author’s exclusive rights, an individual or institution may be liable for contributory infringement if he, she or it knowingly fails to rectify known infringing activities), defenses and the University’s role in defense, and the benefits of registering a copyright with the U.S. Copyright Office.

6. Copyright Notices and Attribution. Chapter 6 lists the proper forms of copyright notice and attribution.

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Chapter 1. Use of the Guidelines

1.1 How to use the Guidelines. To apply these Guidelines when clearing copyright, you must document the basis for a good faith determination that the proposed use is permissible under:

1.1.1 the University Copyright Policy, www.seattleu.edu/home/about_seattle_university/policies/copyright.asp;

1.1.2 these Guidelines; or

1.1.3 the additional guidelines listed in Appendix 1, which should be consulted as secondary resources (referred to in these Guidelines as the “Secondary Resources”).

1.2 Uses falling within the Guidelines. Uses clearly falling within any of the guidelines listed above generally can be assumed to be fair use, unless there is other reason to believe the specific use is likely to be copyright infringement.

1.3 Uses not covered by the Guidelines or Secondary Resources. The fair use exception may permit use of copyrighted works in excess of the word limit or other restrictions specified in these Guidelines and the Secondary Resources. Because the same facts can be considered permissible fair use by some courts and copyright infringement by others, you should use caution and discretion before using copyrighted works. You should seek advice from the University counsel in cases of doubt unless you obtain permission to use the work.

1.4 Ensure that the guidelines used refer to current law. The extent of permissible use of copyrighted materials for educational purposes changes constantly with:

1.4.1 amendments to applicable federal and state statutes (see http://uscode.house.gov/) for federal statutes, and

1.4.2 court decisions and changes in regulatory law

These Guidelines will be updated only once per academic year. Thus, these Guidelines provide a simplified overview of copyright laws and rules to direct members of the University community to recognized sources of current and accurate law and guidelines. Full compliance will require that you seek confirmation of the lawfulness of a contemplated use of copyrighted materials under then-current legal authority. The University policy provides that, in cases of doubt, you should consult with University counsel. Because court decisions and new statutes and regulations change the law often, please recognize that certain types of uses permitted under these Guidelines may, without notice, be prohibited in the future and types of use not permitted under these Guidelines may be permissible under new law. You should make a reasonable investigation in each instance whether the law has changed since the last revision of these Guidelines.

1.5 Review other considerations. The DMCA, privacy and publicity rights, and trademark issues can all affect the lawfulness of using copyrighted materials.

1.5.1 DMCA. The University community is expected to comply with the Digital Millennium Copyright Act of 1998 (the “DMCA”), which limits the liability of complying Internet service providers (“ISPs”), including universities, for the infringing acts of the users of the ISP’s systems. The University has a formal DMCA policy, incorporated by this reference. You can find the University’s DMCA policy at www.seattleu.edu/oit/file.aspx?ID=1300 The University has designated an agent for receiving notices of claims of copyright infringement pursuant to the DMCA. Among other provisions, the law imposes procedures on the University’s response to subpoenas for information about students’ use of electronic materials and forbids programs or devices that avoid, bypass, remove, deactivate, or impair a technological measure that prevents copying, without the authority of the copyright owner. You should bring DMCA infringement notices to the attention of the University counsel immediately. The law is downloadable at the Copyright Office website (www.copyright.gov/title17/) under Digital Millennium Copyright Act.

1.5.2 Respect for the privacy and publicity rights of others. Under the federal Family Educational Rights and Privacy Act (FERPA), the University generally may not release personally identifiable information from a student’s education records without his or her prior written consent. Members of the University community must comply with the University’s FERPA policy (found at www.seattleu.edu/registrar/page.aspx?ID=186). In addition, members of the University community must respect the privacy or publicity rights of others. Publication, including by e-mail or on a website, of intimate or offensive material about an individual, misrepresentations and appropriation of an individual’s likeness (for example, unauthorized use of someone’s photo or using a web cam to record or broadcast a person without his consent), and interception of private communications are all prohibited and may constitute actionable defamation, libel, invasion of privacy or publicity rights, or other tortious act. The broadcasting of web cam or similar materials on University property or using University facilities is strictly prohibited. For further information, the following are recommended resources:

1.5.2.1 Liability for the wrongful acts of publishers, www.utsystem.edu/ogc/intellectualproperty/publia.htm

1.5.2.2 Publicity rights, www.law.cornell.edu/topics/publicity.html

1.5.2.3 Privacy rights, www.law.cornell.edu/topics/privacy.html

1.5.3 Releases. Members of the University community should obtain a release before publishing personal information about or images of another. A release is an agreement that provides a release from legal liability for violation of the right of privacy (the right to be left alone), the right of publicity (the right to control the image, voice, or persona), trademark infringement, defamation and the like. Please contact either the University’s counsel or the Marketing Communications department for assistance with publishing or photography releases.

1.5.4 Trademarks and characters. Members of the University community should use trademarks and trademarked characters (for example, Mickey Mouse) properly. See www.law.cornell.edu/topics/trademark.html. The names and marks “Seattle University” and “Seattle University Redhawks” and University marks and symbols, including, but not limited to, the official seals, the “SU” logo, the Redhawk logo, and the University seals and the depiction of the Chapel of St. Ignatius are trade and service marks of significant value, and all members of the University community and the institution as a whole benefit when these marks are used properly. Members of the University community should not use the University marks and names in connection with domain name registrations or for the sale or distribution of goods or services for financial consideration, and should consult with the Marketing Communications department about proper use of University marks for authorized communications.

1.6 University copyright ownership and license grant. Consistent with its past practices, and in keeping with long-standing tradition in academia, the University will not, absent exceptional circumstances, assert sole rights to control or receive income from works authored by students or faculty. The University does require, however, the right to be notified of, to use, edit and adapt, archive and index, (including digitally and later-developed media), class-related works of students and faculty for educational, research and scholarly purposes in perpetuity.

1.7 Ensure that the authority is reliable. These Guidelines were developed based on a thorough review of leading academic policies and third-party guidelines in the areas of copyright, computer use, and related issues. No single set of guidelines provides a thorough analysis of laws and rules applicable to academia, and the law is constantly changing. Moreover, no reference materials about academic copyright issues, from listserv group materials to the official congressional classroom guidelines, are completely reliable because they contain opinionated analysis about fair use rules and other issues that are controversial and the subject of congressional lobbying.

Therefore, the University developed these summary Guidelines to assist members of the University community in making maximum lawful use of available resources while ensuring that the University complies with the law.

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Chapter 2. How to Clear Copyright, Research, and Document

This Chapter provides summaries of the following topics:

Section 2.1 Defines “copyright clearance”

Section 2.2 Explains how to research and document clearing copyright

Section 2.3 Provides an overview of when copyright should be cleared

Section 2.4 Describes copyrightable works

Section 2.5 Describes the copyright owner’s exclusive rights (see also Appendix 1, definitions and quick reference guide)

Section 2.6 Explains the legal risks of using materials from the Internet (see also the summary in Appendix 2)

Section 2.7 Explains how copyright laws apply to course-packs and section provides an overview of:

2.7.1 Copyright infringement

2.7.2 The public domain

2.7.2.1 Guidelines about the public domain

2.7.2.2 Duration of copyright

2.7.2.3 Other considerations concerning the public domain

2.7.3 The educational exceptions to copyright infringement, including:

2.7.3.1 The classroom use exception

2.7.3.2 The fair use exception, including fair use rules, the “four-factor” fair use test and Congressional and other guidelines specific to classroom copying, music in education, recordings of broadcast materials, electronic class materials and software.

Section 2.8 Describes the virtual classroom and the TEACH Act

Section 2.9 Outlines the rights of libraries

Section 3.0 Describes the “first sale doctrine,” which gives the owner of a lawfully acquired copyrighted work the right to dispose of it.

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Chapter 2

2.1 Clearing copyright. Clearing copyright means that you determine that a proposed use of copyrighted materials is lawful. Otherwise, you should obtain permission.

2.2 Research and documentation. You should research to a reasonable level of inquiry (see CHAPTER 1) any unlicensed use of a copyrighted work. You should document your effort and retain the documentation for at least three years, which is the statute of limitations applicable to civil copyright infringement. 17 U.S.C. § 507.

2.3 When copyright should be cleared. You should clear copyright whenever your proposed use of a copyrighted work falls within the exclusive rights of the copyright owner.

2.4 What is copyrighted. Copyrightable works include literary works (e.g., books, poems, and essays), architectural works, musical works, dramatic works (e.g., plays, dance, and comedy routines) games, movies, videos, photographs, and all kinds of digital works (e.g., computer programs, web pages and Java applets). Copyright protection is automatic from the moment the work is created. See Appendix 1, "Use" of a Copyrighted Work.

2.5 The copyright owner’s exclusive rights. The complete list of an owner’s exclusive rights can be found under “use” of a copyrighted work in the Definitions and quick reference guide. Among other things, the copyright owner has the federal statutory exclusive rights to make and distribute paper or electronic copies, to perform and display a work, and to incorporate the work or parts of it into another, later copyrighted work (“derivative work”). Thus, for example, you can infringe a copyright when you transfer copyrighted material to or from a website without authorization from the copyright owner. Transferring information to and from a website can be done in several ways. A user can take information from a website by copying or downloading. Or, material can be placed (sometimes called “uploaded” or “posted”) from a user’s computer onto the website. Any time copyrighted material is transferred to or from a website without authorization from the owner, the owner may have a copyright infringement claim against the copier, the website, or both. See Appendix 1, "Use" of a Copyrighted Work.

2.6 Using materials from the Internet. In response to increasing copyright litigation, the University has published “Using Materials from the Internet” in Appendix 2 to more fully inform the University community about the legal risks of unauthorized downloading, file sharing, and other forms of improper use of copyright-protected materials. Members of the University community are encouraged to seek guidance from the University counsel with questions about the legality of various uses of copyrighted materials.

2.7 Course-packs and other general academic uses of copyrighted works.

2.7.1 General rule: copyright infringement. Nothing should be included in a course-pack or used in contravention of an author’s rights unless copyright is cleared. Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991). See Appendix 1, "Course-Packs". Copyright is clear in the following situations:

2.7.2 Public domain materials. Anyone may use, without restriction, works that are in the public domain. Works enter the public domain through publication in the U.S. before January 1, 1978, without a copyright notice, expiration of copyright registration, or if the author places the work in the public domain. U.S. government publications prepared by an officer or employee of the U.S. Government as part of that person’s official duties are in the public domain. Government works incorporating private parties’ materials may include non-public domain portions. “Free ware” is in the public domain, although “shareware” may not be. See Copyright Office Circular 15a - Duration of Copyright: Provisions of the Law Dealing with the Length of Copyright Protection.

2.7.2.1 Guidelines for the public domain. You should assume that a valid copyright covers any work unless personal investigation proves that the work is clearly in the public domain. Works may fall into the public domain by expiration or failure of a registration or by donation. Specific public domain rules apply to government and unpublished works. See Appendix 1, “Public Domain”.

2.7.2.2 Copyright duration. The duration of copyrights varies significantly between the U.S. and other nations. Unless its initial copyright term and all extensions have expired, a work cannot be assumed to be in the public domain without a legal opinion. You should consult the chart at www.copyright.cornell.edu/training/Hirtle_Public_Domain.htm, or later similar authoritative source, to make an initial determination that a work is in the public domain.

2.7.2.3 Other considerations. A proper determination of public domain status includes consideration of renewals, multiple authorship, publication of public domain works together with copyrighted works as a compilation and copyright in derivative works that are based on public domain works.

2.7.3 Educational exceptions to copyright infringement. The copyright laws secure to authors numerous exclusive rights in their works. Two federal statutes create exceptions for scholarship:

2.7.3.1 The classroom use exception. Section 110(1) of the U.S. Copyright Act governs the “performance” or “display” of copyrighted works in the classroom. This section of the law provides broad exceptions to copyright infringement, including exceptions for the “performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction ...” The four requirements for meeting the “face-to-face exception” are:

a. performance or display must be given by an instructor or pupil. If there is a guest lecturer presenting a work and the course instructor is present, this most likely would not be an infringement. Any presentation without the instructor present would be an infringement;

b. the performance or display must involve face-to-face teaching. The instructor and the students must be together. The law is unclear about closed circuit transmission and some aspects of distance learning;

c. performance or display must be limited to teaching activity. This means that recreational movie watching may be an infringement of copyright; and

d. performance takes place in a classroom or similar place devoted to instruction.

Copying or permanent storage of audiovisual works does not fall within the performance exception, and so you must evaluate the fair use exception if you propose to copy or store audiovisual works.

2.7.3.2 The fair use exception. 17 U.S.C. § 107 creates the “fair use” exception to the exclusive rights of authors. Teachers may reproduce copyrighted works for classroom use and for research without securing permission and without paying royalties when the circumstances amount to “fair use.” See Appendix 1, "Fair Use".

Fair use guidelines:

a. 4-factor test - To determine whether a use is a “fair use,” the law requires consideration of the following factors:

(i) the purpose and character of the use, including whether the use is for a commercial purpose or for a nonprofit educational purpose;

(ii) the nature of the copyrighted work (factual or creative);

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

(iv) the effect of the use on the potential market for the value of the copyrighted work (17 U.S.C. § 107).

The factors must be weighed to determine if an intended use of copyrighted material falls within the fair use exception.

The doctrine of fair use is based on precise distinctions. In the educational setting, the crucial distinction is often based on factor (iv). Uses that deprive the rights owner of a return on his work (i.e., competing uses) are rarely fair use. Non-competing uses (e.g., using materials no longer commercially available) have less adverse effect on the copyright owner.

The University supports a broad reading of the doctrine of fair use. Members of the University community should, however, make fair use determinations in light of the litigation risk. That is, even if the use likely qualifies as a fair use, a copyright owner may act inappropriately aggressively, may pursue unjustified litigation and, even if a court agrees that a use was a fair use, the expense and time commitment of litigation may outweigh the benefit of using the material. Faculty members are responsible for ensuring that students can lawfully obtain required or recommended course materials. See Appendix 1, "Fair Use".

b. No additional tests. There are neither court decisions nor binding guidelines setting tests to determine fair use by the number of pages copied, the numbers of copies distributed, or the like.

c. “Classroom” guidelines. Four sets of guidelines exist: (i) fair use guidelines for classroom copying with respect to books and periodicals (1976); (ii) educational uses of music (1976); (iii) off-air videotaping (1981); and (iv) educational multimedia (1996). Although the guidelines do not have the force of law (discussed below), copying that falls within the guidelines is generally considered to be fair use and permissible. See Appendix 1, "Classroom Guidelines".

(i) The “Congressional classroom guidelines.” Responding to a need for greater specificity of the application of the “murky” fair use doctrine, Congress in 1975 urged interested parties to form committees to develop guidelines for the permissible educational and library uses of copyrighted material. These guidelines, which set minimum (or “safe harbor”) standards for fair use, have won congressional endorsement and wide acceptance. There are three sets of congressional guidelines detailing fair use under Section 107: Classroom Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with Respect to Books and Periodicals; Guidelines for Educational Uses of Music; and Guidelines for Off-Air Recordings of Broadcast Programming for Educational Purposes. An additional set of CONTU (National Commission on New Technological Uses of Copyright Works, not to be confused with CONFU) guidelines specify what can be photocopied in interlibrary loan arrangements under Section 108(g)(2).

(1) Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with Respect to Books and Periodicals. These are reasonably comprehensive fair use guidelines. They derive from the “Agreement on Guidelines for Classroom Copying in Not for Profit Educational Institutions with Respect to Books and Periodicals,” developed at the request of Congress by representatives of the Authors League of America, the Association of American Publishers, and the Ad Hoc Committee of Educational Institutions and Organizations on Copyright Law Revision (“the Ad Hoc Committee Guidelines”). See Appendix 1, "Classroom Guidelines"-A.

(2) Guidelines for Educational Uses of Music. These fair use guidelines for music were developed by the Music Publishers’ Association, the National Music Publishers’ Association, the Music Educators’ National Conference, the National Association of Schools of Music, and the Ad Hoc Committee on Copyright Law Revision. The guidelines authorize, among other things, limited copying and altering of sheet music and recording of student performances. See Appendix 1, "Classroom Guidelines"-B.

(3) Guidelines for Off-Air Recordings of Broadcast Programming for Educational Purposes. Links to both the fair use guidelines for videotaping off the air for classroom use (Kastenmeier Guidelines) and their interpretation are provided in the list of recommended resources in Appendix 1, "Classroom Guidelines"-C. The guidelines apply only to broadcast media. Cable, satellite and digital transmission media typically require permission.

(4) CONTU Guidelines on Photocopying Under Interlibrary Loan Arrangements. See Appendix 1, "Classroom Guidelines"-D.

U.S. Copyright Office: Information Circulars and Factsheets: Circular 21: Reproductions of Copyrighted Works by Educators and Librarians (Circular 21). Provides the full text of the statutes and guidelines and excerpts from House and Senate Reports interpreting their use.

(ii) CONFU (Conference on Fair Use) Guidelines. Addressing the growth of digital technologies, the Conference on Fair Use (CONFU) was established in 1994 to bring together copyright owner and user interest groups to negotiate new guidelines for the fair use of electronic media in education and libraries. CONFU (a part of the government’s National Information Infrastructure initiative) set up working groups for educational multimedia, distance learning, electronic reserves, interlibrary loan, digital images, and the use of computer software in libraries. When CONFU concluded in May 1998, only the educational multimedia and computer software working groups got beyond the draft stage. The other groups either ceased to meet or were unable to achieve workable guidelines. The CONFU process resulted in the 1997 release of the Fair Use Guidelines for Educational Multimedia. These proposed guidelines are currently undergoing a trial use and monitoring period. In addition, a “Statement on Use of Copyrighted Computer Programs (Software) in Libraries – Scenarios” was adopted in lieu of separate computer software guidelines. Distance learning guidelines were supplanted, however, by the Digital Millennium Copyright Act.

(1) CONFU Fair Use Guidelines For Educational Multimedia. These guidelines apply to the use, without permission, of portions of lawfully acquired copyrighted works in educational multimedia projects that are created by educators or students as part of a systematic learning activity within non-profit educational institutions.

(2) CONFU Use of Copyrighted Computer Programs (Software) in Libraries– Scenarios. These scenarios illustrate some uses of computer programs and multimedia works by non-profit libraries, including those at non-profit educational institutions, for administrative purposes and for on-site and off-site circulation, in light of the following provisions of the Copyright Act of 1976: Sections 107, 109(b), and 117.

(iii) Contents of classroom guidelines. Under these guidelines, non-profit educational institutions may, under certain circumstances, make multiple copies of articles, book chapters, and portions of other copyrighted works for classroom use. These guidelines generally restrict use to one term, and also impose tests such as brevity, spontaneity, and cumulative effects.

(1) The spontaneity test. To pass the “spontaneity” test, two conditions must be met: (1) the copying must be at the instance and inspiration of the individual teacher, and (2) 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 to copy.

(2) The “cumulative effect” test. The classroom guidelines suggest that this test is met when the copying of the material is for only one course in the school where the copies are made; and not more than one short poem, article, story, essay or two excerpts may be copied from the same author, nor more than three from the same collective work or periodical volume during one class term. “Cumulative effect” prohibits more than nine instances of such multiple copying for one course during one class term.

(iv) Specific guidelines situations. The various guidelines provide specific guidance concerning commonly encountered classroom fair use decisions, including on:

(1) Single copying for teachers

(2) Multiple copies for classroom use

(3) Poetry

(4) Prose

(5) Illustrations (charts, graphs, diagrams, drawings, cartoons, pictures)

(6) Per book or per periodical issue individually and in groups

(7) Current news periodicals, newspapers and current news sections of other periodicals;

(8) Works intended to be “consumable” in the course of study or of teaching (workbooks, exercises, standardized tests and test booklets, answer sheets, and like consumable materials)

You should consult these classroom guidelines because they provide guidance based on federal case law and academic norms and specifically distinguish situations based on various applicable tests (including the test of brevity, the cumulative effect test, and tests that inquire into the number of copies made/distributed per instructor, course, and author and the like, and charges to the student beyond the cost of photocopying (not permitted)). Fair use guidelines have been developed for three groups of materials: print materials, music, and television. See Appendix 1, "Classroom Guidelines". You must consider the type of material and apply the appropriate fair use guidelines (print materials, music, and television). The guidelines also cover copying parts of books and sheet music. The word limitations in these guidelines can be problematic for education because of the length of many copyrightable scholarly documents. Please note that some uses not permitted under these guidelines may still constitute fair use. See Appendix 1, "Fair Use" and 8, "Teach Act".

2.8 Distance learning and the TEACH ACT. The TEACH Act (Technology, Education, and Copyright Harmonization Act of 2002, 17 U.S.C. §110(2)) was intended to address “electronic” or “virtual” classrooms. The law provides a list of distance or virtual learning activities exempt from the scope of copyright infringement. Specifically, it covers the scope of educators’ rights to perform and display works and to make the copies integral to such performances and displays for digital distance education. The rights identified by the TEACH Act are more restrictive than those applicable to face-to-face teaching. An activity not permitted by the TEACH Act may be permissible under a fair use analysis. Section 112(f) (ephemeral recordings) permits those authorized to perform and display works to copy digital works and digitize analog works in order to make authorized displays and performances so long as: (i) the copies are retained only by the University and used only for activities authorized by the TEACH Act, and (ii) for digitizing analog works, no digital version of the work is available free from technological protections that would prevent authorized TEACH Act use. See Appendix 1, "Fair Use", "Guidelines for Multimedia", see also Appendix 1 "Public Domain"-C.

The University complies with the requirements of the TEACH Act by, among other things, adopting policies and providing information about, and giving notice that, any educational materials may be protected by copyright. The University also (i) applies technological measures that reasonably prevent recipients from retaining works beyond the class session and further distributing them; and (ii) does not interfere with technological measures taken by copyright owners that prevent retention and distribution of digital works. The TEACH Act copyright notice set forth in Chapter 6 should be used for distance and all virtual learning materials. The Teach Act toolkit at: http://www.lib.ncsu.edu/scc/legislative/teachkit/overview.html is a recommended resource.

2.9 Library and archive rights. The Copyright Act at 17 U.S.C. § 108 provides a set of rules for library and archive uses of material. In general, a library or archive open to the public (or whose collection is available to specialized researchers other than those affiliated with the institution) will not be liable for copyright infringement under a broad set of circumstances. These guidelines do not vary the University library’s copyright policies.

The exemptions provided in § 108 are available to all types of libraries that meet the requirements of § 108(a). To qualify for the § 108 exemptions, copying must not be for direct or indirect commercial advantage, each copy reproduced must include the notice of copyright that appears on the original work or a legend if no such notice appears on the work, and the collection must be open to the public or available to researchers doing research in a specialized field. A library that makes its collection available to others by interlibrary loan meets the “open and available” requirement.

Section 108(d) provides that a library that meets the § 108(a) requirements may, at the request of a user, reproduce one copy of an article from a periodical issue or other contribution to a collective work either from material the library owns or from material owned by another library. The copy must become the property of the user. The library must post the warning prescribed in 37 C.F.R. § 201.14 at the place where the orders are placed, and must include it on the order form. Further, the library should post a notice that the user cannot use the copy for other than fair use purposes.

Under § 108(d), libraries that qualify for the Library Exemption may provide a single copy to an external user on request from that user. The copy provided may be either a photocopy or an electronic copy. Consistent with §108(a)(1), the library may charge a reasonable fee for making the copy as long as the charge does not exceed the library’s reasonable cost recovery.

To satisfy a user’s request, a library may scan an article from a periodical issue, a chapter, or portions of other copyrighted works and provide an electronic copy to the user in lieu of a photocopy. Because the copy must become the property of the user, the library may not retain the scanned image. A copy may be faxed or otherwise transmitted electronically to the user, but the library should destroy any temporary copy made incidental to the transmission. In other words, an incidental copy made to facilitate transmission is a fair use as long as that copy is not retained.

2.10 The “first sale” doctrine. Under 17 U.S.C. § 109, anyone who owns a lawfully manufactured and acquired copy of a published copyrighted work may distribute that copy by resale, rental or loan.

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Chapter 3. Uses Requiring Prior Written Permission From the Copyright Owner

3.1 Use for profit. “Fair use” extends only to nonprofit use. Students may not be charged more than the cost of copies. Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991); Classroom guidelines: copies should not be made for students who are not enrolled in the relevant class without obtaining permission. The same rule applies to classroom copies made and distributed by either the University or a commercial copy center outside the University. See Appendix 1, "Fair Use".

3.2 Unpublished works, including theses and dissertations. Permission is almost always required for use of unpublished works because an author has a statutory right of first publication and automatic copyright protection covers unpublished works from creation until publication. See 17 U.S.C. § 302.

3.3 Special works. Specialized materials (maps, anatomical diagrams and drawings) enjoy a wide statutory immunity from the fair use doctrine. Permission generally must be obtained to use such individually copyrighted materials (even if published as part of a longer work) unless they are in the public domain. Furthermore, the brevity guidelines include an inclusive category termed “special works.” These are defined as certain works of poetry, prose or “poetic prose” that often combine language with illustrations, are intended sometimes for children (and at other times a more general audience) and fall short of 2,500 words in their entirety. The guidelines prohibit copying such special works in their entirety. An excerpt of no more than two of the published pages of a special work and containing not more than 10% of the words found in the entire text may be reproduced.

3.3.1 Digital works:

3.3.1.1 Digital Visual Resources Association Copyright, Intellectual Property Rights, Fair Use, www.vraweb.org/copyright.html.

3.3.1.2 University of California: Copyright Considerations for Faculty-Authored Multimedia Instructional Materials UC Discussion Draft, 7 February 1996; Policy and Guidelines on the Reproduction of Copyrighted Materials for Teaching and Research.

3.3.1.3 University of St. Francis in Illinois: An Introduction to Fair Use, rules governing use of audiovisual aids and materials for distance education.

3.3.1.4 University of Oregon (unofficial site, http://darkwing.uoregon.edu/~csundt/copyweb/), comprehensive resources for copyright and the arts.

3.3.2 Dramatic works: Teaching Theater, (Summer 1999, Volume 10, Number 4, excerpted at www.angelfire.com/or/Copyright4Producers/resources.html. Comprehensive list of resources for copyright clearance and licensing information specific to drama and music.

3.4 Consumable works. Consumable works (workbooks, exercises, standardized tests and test booklets, answer sheets, and similar consumable materials) also enjoy wide statutory immunity from the fair use doctrine. Generally, you must obtain permission to use such individually copyrighted materials unless they are in the public domain. The Classroom Guidelines prohibit unauthorized copying of works intended to be “consumable” in the course of study or teaching. Consumable works include workbooks, exercises, standardized tests and test booklets and answer sheets. Under the guidelines, unauthorized copying may not substitute for the purchase of books, publishers reprints or periodicals, or be repeated with respect to the same item by the same teacher from term to term.

3.5 Music and other performances.

3.5.1 General rule – no performance without permission. Members of the University community have agreed not to perform copyrighted works unless the use is subject to an exception to infringement or the performance is authorized by (i) Title 17, U.S. Code, § 110(1)(4) or (8), (ii) performance licenses, (iii) purchase order authorization, or (iv) written permission from the copyright owner or the owner’s agent. See the Music Library Association Guide to Copyright www.musiclibraryassoc.org/Copyright/copyhome.htm for specific guidance in addition to these Guidelines. See Appendix 1, "Music".

3.5.2 University licenses. The University has obtained performance licenses applicable to some University purposes, including student performances of non-dramatic musical works. The University currently has licenses from the American Society of Composers, Authors and Publishers (ASCAP); Broadcast Music, Inc. (BMI); and SESAC.

3.5.3 Digital music. The 1995 Digital Performance Right in Sound Recordings Act governs “performance rights” in digital audio transmissions and, as modified by Title IV of the DMCA, sets statutory license fees for royalties payable by subscription digital broadcasting entities (such as a cable radio services) playing digital recordings.

3.6 Software and databases. Software and many elements of databases may be copied without the copyright owner’s permission only in accordance with the Copyright Act. Section 117 of the Act permits an archival back-up copy. Rights to copy licensed software beyond that permitted under the Copyright Act are determined by the terms of the license agreement. Storing, reproduction, retransmission and use of unregistered or otherwise unauthorized software on University computing equipment or on computers or other devices housed in University facilities must be in accordance with the Copyright Act, the other policies of the University, and the applicable software license agreement. It is a condition of using the University’s computing equipment that the user agree not to use the equipment to infringe copyrights or otherwise violate applicable law or University policy.

3.7 Copying database search results. License agreements govern access to University databases. Because the University community must comply with the terms of its license agreements, the terms of such licenses should be reviewed closely. Distribution of database search results to a single user clearly is permitted as fair use unless prohibited by a license agreement. Absent a license agreement that restricts redistribution of non-public domain research results, redistribution to multiple users may be permitted.

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Chapter 4. Permissions

4.1 General rule – obtain permission in cases of doubt. Members of the University community have agreed, in any case of doubt, to obtain all necessary permissions before using another’s work. When you have obtained permission from a copyright owner, attach the documentation reflecting the permission to the request form and retained a copy.

4.2 Information to support a copyright query or permission request. Contact the publisher, or the copyright owner, or the U.S. Copyright Office about copyright restrictions, and if an exception to infringement does not apply, obtain permission. The following information may be needed:

1. Title, author and/or editor, and edition of materials to be duplicated;

2. Exact material to be used, giving amount, page numbers, chapters and, if possible, a photocopy of the material;

3. Number of copies to be made;

4. Use to be made of duplicated materials (including time period or duration if copying on an on-going basis is desired);

5. Form of distribution (classroom, newsletter, etc.);

6. Whether or not the material is to be sold;

7. Type of reprint (photocopy, offset, typeset, electronic).

4.3 Permissions from an author or publisher. Authors and publishers occasionally grant free or very inexpensive permissions. Identifying whether an author or publisher holds the needed rights and obtaining permissions can be difficult and time-consuming, but major publishers have permission desks or departments and a streamlined process. For works previously published professionally, publishers, not authors, typically hold the right to grant republication permissions. Copyright holders can often be identified by means of a search at the U.S. Copyright Office.

4.4 Third-party permissions. Assuming that obtaining permission of an author is impractical, you can obtain rights either without charge or for a fee via several services that have large collections of rights. Sources for permissions include:

4.4.1 Text. The Copyright Clearance Center (CCC) was established pursuant to federal mandates in 1978 as a clearinghouse for permissions to copy text and print media. The CCC has accumulated permission rights to large numbers of titles. There is a department dedicated to academics. Faculty can request permission to copy materials either as photocopies or as electronic course packs, electronic reserves or distance learning. The CCC may be contacted by visiting: www.copyright.com or at: Copyright Clearance Center, or at: Copyright Clearance Center, 222 Rosewood Drive, Danvers, MA 01923, Phone: (978) 750-8400, Email: info@copyright.com.

An account is necessary to use the services of the CCC. The library can provide all needed account information. For permission to use a specific title, the title, author, date or edition of the book, the portion of the work to be copied, and the “standard number” i.e., ISSN, ISBN, or LCCN (all generally available on the copyright notice page) is requested. Permissions can be obtained immediately, or, if requested by fax, typically within 24 hours. By visiting the “authors’ section” of CCC’s website, authors of books and related text media can join the CCC as “Rightsholders” and contract with the CCC to grant permission for others to copy a work for a designated royalty.

4.4.2 Audiovisual works. “Non-theatrical public performance licenses” are required to perform audiovisual works outside the face-to-face classroom setting.

4.4.3 Dramatic works. Performing dramatic works outside the scope of an exception to infringement requires an appropriate license from the playwrights’ agent. Live public performances of non-dramatic musical works are authorized under the “free and benefit” performance provision in Section 110(4) of the copyright law. The performance must be given without charge to the audience, or the income from admission fees in excess of costs must be applied to a charitable cause. In either case, the managers and performers must contribute their services or their contribution to the performance must be part of their overall duties as faculty members or staff members.

4.4.4 Images. Occasionally one may obtain rights to images via several services that have large databases of images and photos available, including www.corbis.com, www.clipart.com and www.gettyimages.com. In an attempt to provide educational access to copyrighted images, a consortium of art museums and archives created the Art Museum Image Consortium (AMICO). AMICO maintains and licenses a collective digital library of images and documentation. AMICO enables its members to negotiate digital rights with artists, artists’ estates, and museums in other countries, and provides members with access to each others’ holdings for their own educational uses. AMICO’s website is located at www.amico.org.

4.4.5 Music, including online and multi-room transmissions and broadcasts. These performances require an appropriate license unless an exception applies. The University currently has licenses from the American Society of Composers, Authors and Publishers (ASCAP), Broadcast Music, Inc. (BMI), and SESAC.

4.4.6 Foreign collectives.

4.4.6.1 VERDI (Very Extensive Rights Data Information), financed by the EU, links the services of multimedia rights clearance systems in Finland, France, Germany, Ireland, the Netherlands and Spain. http://gdz.sub.uni-goettingen.de/tecup/Verdi.htm

4.4.6.2 CLARA, a Web site organized by 5 Norwegian copyright collectives, since November 12, 1998 informs users of their rights and rights clearances of all types of copyright materials including use in multimedia productions. www.clara.no

4.4.6.3 Copyright Licensing Agency (“CLA”), a UK venture, offers a license for the creation, storage and exploitation of digital versions of existing print works in its repertoire. The first electronic licenses were offered to the higher education and pharmaceuticals sector. www.alcs.co.uk

4.5 Sources of information about permissions.

4.5.1 Copyright Licensing Organizations & Publications Rights Clearinghouses. Official Copyright Office list: www.copyright.gov/resces.html

4.5.2 Securing Permissions and Releases for Materials Included in Faculty Authored Instructional Materials, http://www.utsystem.edu/ogc/intellectualproperty/permsrel.htm.

4.5.3 The Association of American Publishers provides sample request forms and information on course-pack requests, www.publishers.org.

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Chapter 5. Infringement

5.1 Nature of claims. In addition to directly infringing an author’s exclusive rights, an individual or institution may be liable for contributory infringement when that person or institution knowingly fails to rectify known infringing activities. Copyright infringement claims are often brought in conjunction with claims for related allegedly tortious acts.

5.2 Defense. Adherence to these Guidelines should afford reasonable grounds for a defense to legal action. You should immediately notify the University counsel of claims of copyright infringement. As a general matter, faculty and staff members are personally responsible for their unlawful acts and for the defense of any legal action in which they are named. The University will, however, defend a member of the University community wrongfully accused of copyright infringement and related allegedly tortious acts, so long as the person made a good faith effort to follow the University’s Copyright Policy and the Guidelines. The University, in its discretion, will determine how to handle allegations or investigations of copyright infringement or other intellectual property claims against students.

5.3 Enforcement. Registration is not a prerequisite to the existence of copyright, merely to the right to a federal court remedy. Copyright vests automatically in original works “fixed in any tangible medium of expression.” All works of authorship, except spoken words, are potentially covered by a valid copyright. Copyright does not vest, however, until a work is fixed in a tangible medium. A spoken word, such as in a University lecture, is not protected by copyright, but any word or image permanently fixed in any form is.

5.4 Counsel and assistance. On request, the University may assist members of the University community to register their works. Although copyright subsists from the moment a work is fixed in permanent form, copyright for a work must be registered in the U.S. Copyright Office before a lawsuit can be filed in federal court. A registration certificate is competent proof of the date of a work’s creation. Copyright application is generally simple and inexpensive. For the benefit of the University and the individual faculty member, faculty members are encouraged to seek registration for major new works. The University counsel will assist, to the extent appropriate in the University’s sole discretion, members of the University community with legal matters relating to copyright and other intellectual property. Further information about copyright registration may be found at the U.S. Copyright Office, which can be reached by phone, mail, or www.loc.gov/copyright/.

5.5 Remedies for infringement. Statutory and common law civil remedies available to copyright holders include actual damages and, for works registered within three months of publication or before the infringement commenced, awards of attorney’s fees and statutory damages against corporate and institutional defendants as well as individuals who willfully infringe, injunctions, impoundment or destruction of infringing articles, costs of suit and attorneys’ fees.

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Chapter 6. Copyright Notices and Attribution

6.1 Proper form of copyright notice. An effective copyright should provide:

(a) The author’s name(s);

(b) The year(s) in which the work was created and most recently published; and

(c) The word “copyright” or its abbreviation or the symbol ©.

6.2 Notice not required. In the U.S. and in the many countries that are signatories to copyright agreements to which the U.S. has also acceded by treaty, no copyright notice is required for works created under the Copyright Acts of 1976 and thereafter, or on or after the date of January 1, 1978.

6.3 Notice of attribution. Regardless of whether a copyright notice is used or necessary, and whether or not permission is required to copy a work, academic integrity dictates that credit should be provided whenever an author’s work is quoted, discussed, incorporated or clearly referenced in a new work. The credit line should be printed in proximity to the pages copied and include the author’s name. In cases of re-publication, the year of publication and the phrase, “Reprinted by permission” should be included as appropriate.

6.4 Copyright notice for course-pack materials. A notice must identify the copyright owners of the materials included in a course-pack. A clearance company can assist in creating the notices. Otherwise, the clearance agreement should require each rightsholder to provide the format for the desired notice. Below are examples of a notice for a course-pack:

“Dangerous Similarities” by Stan Soocher is excerpted from They Fought the Law ©Schirmer Books (1998);

“Who Will Own Your Next Good Idea” by Charles C. Mann is excerpted from Atlantic Monthly ©Atlantic Monthly (Sept. 1998).

6.5 Notices to students. Instructors distributing hard or electronic materials must provide students notice that materials used in connection with the course may be subject to copyright protection. When possible with electronic materials, you should use a “click-through” agreement to capture the user’s understanding and agreement to comply with restrictions on use and duplication.

6.6 Copyright warning notices for copiers. Federal regulations specify that particular copyright warning notices must be posted at specific places on college campuses.

6.6.1 Mandatory warning for places where library or archives employees accept orders for copies. The text of the following notice is specified by 17 U.S.C. §§ 108(d)(s) and (e)(2):

NOTICE. Warning concerning copyright restrictions. The Copyright Law of the United States (Title 17, United States Code) governs the making of photocopies or other reproductions of copyrighted material. Under certain conditions specified in the law, libraries and archives are authorized to furnish a photocopy or other reproduction. One of these specified conditions is that the photocopy or reproduction is not to be used for any purpose other than private study, scholarship, or research. If a user makes a request for, or later uses, a photocopy or reproduction for purposes in excess of fair use, that user may be liable for copyright infringement. This institution reserves the right to refuse to accept a copying order if, in its judgment, fulfillment of the order would involve violation of the law.

6.6.2 Recommended warning on or near all library or archival equipment capable of duplicating copyrighted materials, visible to anyone using the device. Federal regulations (42 Fed. Reg. 59264, November 16, 1977, pp. 59264-5) provide a recommended copyright warning notice for places where patrons borrow equipment for removal from the premises and on or near all copying equipment used by faculty, staff and students. Copying equipment includes photocopying machines, transparency markers, audio and video recorders, photographic copy stands, microfilm printers and computers. The following notice is recommended by the American Library Association. “Three Words Added to Copyright Notice,” American Libraries 9, No. 1 (January 1978), p. 22:

NOTICE: The copyright law of the United States (Title 17, U.S. Code) governs the making of copies of copyrighted materials. The person using this equipment is liable for any infringement.

6.6.3 Notice for libraries and archives to place on the first page of copies they make for patrons. The American Library Association ( see “Warning Notices for Copies and Machines,” American Libraries 8, No. 10 (November 1977), p. 530) recommends that the following notice be placed on the first page of copies libraries make for patrons:

NOTICE: This material may be protected by copyright law (Title 17, U.S. Code).

6.6.4 The TEACH Act copyright notice. For distance learning materials, the TEACH Act mandates the following notice:

The materials on this course Web site are for the use only of students enrolled in this course for purposes associated with this course and may not be retained or further disseminated.

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Appendix 1
to Seattle University Guidelines for the Proper Use of Copyrighted Works

Definitions and Quick Reference Guide

1. Academic Copyright Guidelines, Recommended.

A. The University of Minnesota’s “Interim Guidelines for the Use of Copyrighted Works,” Erika Brant, Copyright Administrator at the University of Minnesota, provides guidelines for use or copying permitted to teachers for classroom instruction, to librarians for library purposes, and other academics for various purposes, including video and other media, music, computer software, and library and archive materials.

B. The University of North Carolina’s “Copyright Guidelines,” provide extensive explanation of the guidelines for making multiple copies for classroom use of both print and video sources, focusing on higher education and noting the areas where the “Classroom Guidelines” do not fit well with the needs of postsecondary education policy guidelines for software based on sections 109(b)(2)(A) and 117 of the 1976 Copyright Act.

C. The University of Texas Copyright Policy is a comprehensive policy maintained by a four-attorney staff and generally updated and revised promptly as the law changes.

D. Copyright Law On Campus, Lindsey, Marc, Washington State University Press, 2003, specifically including The Student Manual for Duplicating Copyrighted Materials by Dr. Jerome K. Miller incorporated therein (the University is in the process of seeking a subscription to updates as available)

E. U.S. Copyright Office: U.S. Copyright Office: Information Circulars and Fact Sheets: Circular 21: Reproductions of Copyrighted Works by Educators and Librarians (Circular 21).

2. Classroom Guidelines.

A. Guidelines for Classroom Copying in Not for Profit Educational Institutions with Respect to Books and Periodicals, (“the Ad Hoc Committee Guidelines”) were developed at the request of Congress by representatives of the Authors League of America, the Association of American Publishers, and the Ad Hoc Committee of Educational Institutions and Organizations on Copyright Law Revision with the purpose of stating the minimum and not the maximum standards of educational fair use under Section 107 of H.R. 2223: http://www.lib.uconn.edu/online/services/reserve/housereport941476.html

B. Guidelines for Educational Uses of Music was developed by Representatives of the Music Publishers’ Association, the National Music Publishers’ Association, the Music Educators’ National Conference, the National Association of Schools of Music, and the Ad Hoc Committee on Copyright Law Revision (included in House Report 94-1476) at: http://library.uis.edu/aboutus/circulation/copyright/musicfairuse.html

C. Guidelines for Off-Air Recordings of Broadcast Programming for Educational Purposes (“Kastenmeier Guidelines”) at: http://www.lib.berkeley.edu/MRC/Kastenmeier.html

D. CONTU (National Commission on New Technological Uses of Copyright Works) Guidelines on Photocopying Under Interlibrary Loan Arrangements. http://www.cni.org/docs/infopols/CONTU.html

3. Clearing Copyright Clearing copyright means determining that a proposed use of copyrighted materials is lawful. See Seattle University Copyright Guidelines Chapter 2.

4. Copyright Statutes. See Cornell Law School Searchable Title 17 U.S. Code, Copyright http://www.law.cornell.edu/uscode/html/uscode17/usc_sup_01_17.html.

5. Course-Packs. The following references are recommended:

A. Copyright and the University Community, University Copy Centers: Do They Pass the Fair Use Test? www.utsystem.edu/ogc/intellectualproperty/mono1.htm.

B. Academic Coursepacks, http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter7/7-a.html#1.

C. XanEdu, a division of Bell & Howell, which acquired the course-pack service formerly known as Campus Custom Publishing, provides traditional course-pack assembly and an electronic online service providing supplemental college course materials directly to the instructor’s desktop via the Internet, www.xanedu.com.

D. Wake Forest University librarians’ Copyright Permission Pages, course-pack assistance website with links to publishers, copyright information sources and related educational organizations, www.law.wfu.edu/library/copyright/

E. Courseware Contracts: When faculty members create multimedia courseware products for their classes, there are a number of issues that the faculty author should address in advance: The University of Texas website has developed an interactive website to assist faculty members with this process: http://www.utsystem.edu/ogc/intellectualproperty/course.htm.

6. Fair Use.

A. Defined. Fair use is a legal principle that limits the exclusive rights of copyright owners. There is no simple test to determine what is fair use. Section 107 of the Copyright Act lists four factors that must be considered to determine whether a use is a “fair use.” Other factors may also be considered based on the particular facts of a given case. Section 107 states: “Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords 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 a fair use the factors to be considered shall include – (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”

B. Fair Use Resources. Recommended fair use resources include:

1. University of Texas Crash Course in Fair Use, www.utsystem.edu/OGC/IntellectualProperty/cprtindx.htm

2. Stanford University Copyright & Fair Use, http://fairuse.stanford.edu

3. University of Texas policy entitled Fair Use “Rules of Thumb,” www.utsystem.edu/ogc/intellectualproperty/copypol2.htm

4. Classroom guidelines: U.S. Copyright Office: Information Circulars and Fact Sheets: Circular 21: Reproductions of Copyrighted Works by Educators and Librarians (Circular 21).

5. Fair Use Links:

Fair Use of Copyrighted Materials

American Library Association Statement on Fair Use

University Duplicating Services

6. Clearing Rights for Multimedia Works: http://www.utsystem.edu/ogc/intellectualproperty/multimed.htm.

7. Christine Sundt’s Art and Copyright website: http://darkwing.uoregon.edu/~csundt/copyweb/.

8. Using Materials from the Internet: http://www.utsystem.edu/ogc/intellectualproperty/useofnet.htm

C. Guidelines for Multimedia. Negotiated guidelines for the fair use of electronic materials in a variety of nonprofit educational contexts for educational multimedia, including distance learning, multimedia, electronic reserves, interlibrary loans and image collections and software and their proper interpretation, guidelines for students or instructors preparing multimedia works, proposed guidelines for using digitized images in lectures, scholarly presentations or publications, proposed guidelines for using digitized Images in lectures, scholarly presentations or publications, and guidelines for digital copying at http://www.utsystem.edu/ogc/intellectualproperty/confu2.htm and http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter7/7-c.html

1. Fair Use Guidelines for Educational Multimedia: http://www.utsystem.edu/ogc/intellectualproperty/ccmcguid.htm

2. Fair Use Guidelines for Distance Learning: http://www.utsystem.edu/ogc/intellectualproperty/distguid.htm

3. Fair Use Guidelines for Electronic Reserves: http://www.utsystem.edu/ogc/intellectualproperty/rsrvguid.htm

4. Fair Use Guidelines for Interlibrary loan: http://www.utsystem.edu/ogc/intellectualproperty/illconfu.htm

5. Fair Use Guidelines for Image Collections: http://www.utsystem.edu/ogc/intellectualproperty/imagguid.htm and http://www.vraweb.org/copyright/guidelines.html

6. Music.

A. Digital and Webcast Transmissions. The 1995 Digital Performance Right in Sound Recordings Act governs “performance rights” in digital audio transmissions and, as modified by Title IV of the DMCA, sets statutory license fees for royalties payable by subscription digital broadcasting entities (such as a cable radio services) playing digital recordings. The digital broadcasting rules can be found at http://www.digmedia.org.

B. Kohn on Music Licensing at http://www.kohnmusic.com

7. Public Domain. Public domain works may be copied freely. Recommended resources are:

A. Copyright Office Circular 22, Determining the copyright status of a work.

B. See copyright duration the chart at www.copyright.cornell.edu/training/Hirtle_Public_Domain.htm, or later similar authoritative source.

8. Teach Act. See The Teach Act toolkit at: www.lib.ncsu.edu/scc/legislative/teachkit/overview.html

9. United States Copyright Office, www.copyright.gov.

10. “Use” of a Copyrighted Work/Author's Exclusive Rights. The exclusive rights of a copyright owner are provided by sections 106 through 118 of the Copyright Act, of an author in 17 U.S.C. § 106A(a), and rights to import copies or phonorecords into the United States in 17 U.S.C. § 602.

The 106 – 118 rights are:

(a) to reproduce the copyrighted work in copies or phonorecords;

(b) to prepare derivative works based upon the copyrighted work;

(c) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

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

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

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

See www.law.cornell.edu/uscode/17/106.html.

The Section 106(a) rights, for limited types of works of visual arts only, include attribution and integrity, namely the rights to be free from distortion, mutilation, or other specific modifications of the work, are listed at www.law.cornell.edu/uscode/17/106A.html. The Section 602 rights to import copies or phonorecords into the United States are detailed at www.law.cornell.edu/uscode/17/602.html.

11. Other Recommended Websites:

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Appendix 2

Using Materials From The Internet: What You Can And Cannot Do

At Seattle University, file-sharing (that is, uploading or downloading copyrighted songs, movies or software without permission from the copyright owner or its agent) is illegal and is a violation of Seattle University’s Intellectual Property Policies.

What You Can Do

  • Make a backup copy of a CD, a DVD or software that you purchased
  • Copy music or movies that you purchased to your computer
  • Copy music or movies that you purchased to your PDA, iPod or MP3 music device
  • Make a CD for yourself from music you purchase from legitimate sites on the Internet
  • Obtain assistance from the University counsel for claims or notices of copyright infringement, so long as you notify the University promptly

The recording industry publishes a web site that includes pointers to sources of legal music on the Internet: www.musicunited.org.

What You Cannot Do

  • Upload unauthorized movies, music, or software or permit others to download it via a network (over the Internet)
  • Use materials from a website in violation of its policy, “terms of service” agreement or “click-wrap” agreement; this may include linking to a website in violation of its linking policy
  • Post material to a website unless you authored the material or obtained all necessary permissions to post it
  • Frame others’ materials on a website in a manner that misleads others as to the source of a website
  • Make unauthorized copies of a CD, DVD, or software to give to a friend or that you borrowed from a friend
  • Distribute for personal gain music you have purchased or downloaded with authorization
  • Download music, movies, or software without purchasing or licensing them
  • Post someone’s name and photo on a website without that person’s permission
  • Using a web cam to record or broadcast a person without that person’s consent
  • Disable technological protection devices in contravention of the DMCA

Consequences of Violations

  • Disciplinary action by Seattle University
  • Prosecution by the RIAA* or the MPAA* for infringement of copyright
  • Damages up to $150,000 per instance of copyright violation
  • Fines for criminal copyright infringement

* RIAA (Recording Industry Association of America); *MPAA (Motion Picture Association of America). The RIAA has issued over 900 subpoenas since July 1, 2003, for information from Internet Service Providers asking for disclosure of names associated with IP addresses. Many of the subpoenas were directed to colleges and universities.

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