Wayne State College
Menu
Act Now

Conn Library Help

Information on Copyright

Much of the information in this booklet comes from the “Crash Course in Copyright” by Georgia Harper at the University of Texas System. Copied with her permission.

Introduction

The purpose of this booklet is to provide employees and students of Wayne State College information about the do’s and don’t’s of Copyright. The Nebraska State College System Board Policy Manual prohibits use of copyrighted materials in policy #5008, section. 6, “...access information or resources unless permission to do so has been granted by the owners or holders of rights to those resources and information.” 

Over the past several years, tremendous changes have taken place in Copyright law. The information provided here is to inform you of some of these changes, and to give you the information you need to protect the institution and yourself from Copyright infringement.

Because many of the Copyright issues effect the Library, and how faculty use the library, there are sections included here that deal with the responsibilities and duties of how libraries are required by law, to respond to these issues.

What is fair use? [1]

We would all appreciate a clear, crisp answer to that one, but far from clear and crisp, fair use is better described as a shadowy territory whose boundaries are disputed, more so now that it includes cyberspace than ever before. In a way, it's like a no-man's land. Enter at your own risk.

Why is it like this and does it have to be this way? Is there no alternative to the vagueness of the "four factor fair use analysis," to fear of lawsuits and frustration with uncertainty? Maybe it is reasonable to simply throw up our hands and say, "What's the use?" After all, many legal scholars, politicians, copyright owners and users and their lawyers agree that fair use is so hard to understand that it fails to provide effective guidance for the use of others' works today.

The four fair use factors:

  1. What is the character of the use?
  2. What is the nature of the work to be used?
  3. How much of the work will you use?
  4. What effect would this use have on the market for the original or for permissions if the use were widespread?

Please keep in mind that the information presented here is only general information. True legal advice must be provided in the course of an attorney-client relationship specifically with reference to all the facts of a particular situation. Such is not the case here, so this information must not be relied on as a substitute for obtaining legal advice from a licensed attorney.

Individual liability for infringement

Before you throw up your hands and say, "What's the use," consider your own liability for copyright infringement. Individuals are liable for their own actions. Copyright owners have sued and probably will continue to sue individuals. They will probably sue the college, too, but that may not insulate the individual who took the allegedly infringing action from the full force of a lawsuit. The penalties for infringement are very harsh: the court can award up to $100,000 for each separate act of willful infringement. Willful infringement means that you knew you were infringing and you did it anyway. Ignorance of the law, though, is no excuse. If you don't know that you are infringing, you still will be liable for damages - only the amount of the award will be affected. Then there are attorneys' fees.....

There is one special provision of the law that allows a court to refuse to award any damages at all if it so chooses, even if the copying at issue was not a fair use. It is called the good faith fair use defense [17 USC 504(c)(2)]. It only applies if the person who copied material reasonably believed that what he or she did was a fair use - as would likely be the case if you followed this Policy! If you qualify for this defense, it makes you a very poor prospect for a lawsuit. On the other hand, if you disregard sound advice about fair use, a court would be free to award the highest level of damages available. This would make you a handsome target.

Distance Education: [2]

The TEACH Act (signed into law, Nov. 2, 2002) expands 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, making the rights closer to those we have in face-to-face teaching. But there is still a considerable gap between what the statute authorizes for face-to-face teaching and for distance education. For example, as indicated above, an educator may show or perform any work related to the curriculum, regardless of the medium, face-to-face in the classroom - still images, music of every kind, even movies. There are no limits and no permission required. Under 110(2), however, even as revised and expanded, the same educator would have to pare down some of those materials to show them to distant students. The audiovisual works and dramatic musical works may only be shown as clips -- "reasonable and limited portions," the Act says.

Section 110(2)'s expanded rights include the following: Transmitting performances of all of a non-dramatic literary or musical work

Non-dramatic literary works by definition in the Act exclude audiovisual works; thus, examples of permitted performances in this category in which entire works may be displayed and performed might include a poetry or short story reading. Non-dramatic musical works would include all music other than opera, music videos (if they "tell a story"), musicals, and the like.

1. Transmitting reasonable and limited portions of any other performance
This category includes all audiovisual works such as films and videos of all types, and any dramatic musical works excluded above.
2. Transmitting displays of any work in amounts comparable to typical face-to-face displays

This category would include still images of all kinds.

Exclusions from coverage

Not everyone, nor every work, is covered. Section 110(2) only applies to accredited nonprofit educational institutions. The rights granted do not extend to the use of works primarily produced or marketed for the digital distance education market, works the instructor knows or has reason to believe were not lawfully made or acquired, or textbooks, coursepacks and other materials typically purchased by students individually. This last exclusion results from the definition of "mediated instructional activities," a key concept within the expanded Section 110(2) meant to limit it to the kinds of materials an instructor would actually incorporate into a class-time lecture. Electronic reserves are a good example of an educational use that is not authorized under 110(2); electronic reserves are analyzed under the fair use statute only.

Conditions

In addition, the statute specifies a formidable list of circumstances under which the permitted uses may be made:

1. The performance or display must be:
a. A regular part of systematic mediated instructional activity;
b. Made by, at the direction of, or under the supervision of the instructor;
c. Directly related and of material assistance to the teaching content; and
d. For and technologically limited to students enrolled in the class.

2. The institution must:
a. Have policies and provide information about, and give notice that the materials used may be protected by, copyright;
b. Apply technological measures that reasonably prevent recipients from retaining the works beyond the class session and further distributing them; and
c. Not interfere with technological measures taken by copyright owners that prevent retention and distribution.

Authority to make copies

Finally, a new section was added to the Copyright Act to authorize educators to make the copies necessary to display and perform works in a digital environment. New Section 112(f) (ephemeral recordings) works with Section 110 to permit those authorized to perform and display works under 110 to copy digital works and digitize analog works in order to make authorized displays and performances so long as:

1. Such copies are retained only by the institution and used only for the activities authorized by Section 110; and

2. For digitizing analog works, no digital version of the work is available free from technological protections that would prevent the uses authorized in Section 110.

Because of the many limitations, Section110(2) won't go far enough in many situations; remember that educators still have recourse to fair use to make copies, create derivative works, display and perform works publicly and distribute them to students. So, don't be discouraged by Section110(2)'s scope and complexity. If it covers what you want to do and you and your institution can comply with all of its conditions and limitations, great! If it does not, you still have the fair use statute and our Rules of Thumb.

Getting Permission: [3]

Assuming the work you wish to use is protected, your use is not a fair use or otherwise exempt from liability for infringement, and the work has not been licensed for your use online, you need permission. Now what?

There are no foolproof methods to obtain permission, but there are steps likely to yield results. The steps will vary depending on the nature of the work you need to use. If the work is part of a book or a journal article, contact the Copyright Clearance Center ("CCC") [4] first. The CCC now offers an experimental electronic permission service and a well-established photocopy based academic permission service. Definitely worth a try. Your library or copy center probably is already working with the CCC and should be able to help you. If the work you want to use is registered with the CCC, you can get permission within 24 to 36 hours. This does cost money, and average expense is between $5 to $15.

The Library staff will help to obtain copyright permission. However, this does not change who is responsible for getting copyright permission. That responsibility remains with the faculty member or person requesting the information be duplicated or placed on reserve. Also, any cost involved will have to come from the individual or department requesting copyright permission.

Reserve Materials in the Library: [5]

1. Limit reserve materials to:
a. single articles or chapters; several charts, graphs or illustrations; or other small parts of a work
b. a small part of the materials required for the course
c. copies of materials that a faculty member or the library already possesses legally (i.e., by purchase, license, fair use, interlibrary loan, etc.).

2. Include:
a. any copyright notice on the original
b. appropriate citations and attributions to the source
c. a Section 108(f)(1) notice.

3. Limit access to students enrolled in the class and administrative staff as needed. Terminate access at the end of the class term.

4. Obtain permission for materials that will be used repeatedly by the same instructor for the same class.

What happens to the copies at the end of the semester?

Section 107 does not mention how long a copy may be retained, or whether at some point, a fair use copy ceases to be fair solely because of the passage of time. Nevertheless, there is a widespread belief that libraries should not retain a copy longer than one semester.

Not only the Classroom Guidelines, but every other set of negotiated guidelines, both old and new, has contained some time limit. Thus, even though it may not be logical to infer a time limit on fair use from the statute itself, it appears advisable nonetheless to obtain permission for uses beyond one semester.

Section 108 copies must become the property of the patrons, but Section 107 is silent on the issue of copy ownership. It is probably better to consider the faculty member the owner since he or she either brought the copy to the library or the library made the copy at his or her request.

Quotes from the Digital Millennium Copyright Act that have special significance: [6]

Special Rule Regarding Teaching and Research Employees of Public and Nonprofit Higher Educational Institutions. The Online Service Provider (OSP) regime also makes one special exception to the general rule that an institution is responsible for the acts of its employees. In recognition of the principles of academic freedom and scholarly research and the practice of administrators of higher educational institutions of not interfering with classroom work, the statute provides that faculty and graduate students employed to teach or research shall not be considered "the institution" for OSP purposes. Thus, if, for example, a member of the faculty posts infringing content, selects recipient of infringing matter or knows of an infringement, the institution would not automatically lose its right to the limitation.

The exception has three important qualifications:
I. The faculty or graduate student’s activities do not involve online access (including e-mail) to materials that were "required or recommended" within the preceding three years for a course taught by the employee at the institution.
II. The institution has not received more than two notices of actionable infringement by the faculty or graduate student.
III. The institution provides all users of its system or network informational materials on compliance with U.S. copyright laws.

If properly followed, the higher educational institution is not tainted by the actions of its teaching and research employees. As an institution, it would qualify for protection against money damage claims and could not be required to block access or terminate a subscriber. It could still be subject to other injunctive remedies, such as those involving preserving evidence.

Section 108 Library Exemption Update

Since the passage of the Copyright Act of 1976, the library community has benefitted from a limited exception from the exclusive rights of owners dealing with reproduction and distribution of copyrighted works. The limitations are in addition to other uses which libraries and other educational organizations may make under fair use and other copyright rules, and provide explicit guidance for preservation, the use of photocopy equipment on the library’s premises and for inter-library lending.

The law has been outdated for some time and in need of reform. DMCA accomplished the necessary changes.

Specifically, DMCA provides the following:

I. Up to three (3) copies of a covered work can be made. Prior to this change, a library which desired to preserve a work which was in brittle condition, could only make one facsimile copy. Now, a library can make three copies – one strictly for archival purposes, one as a master and a third as a use copy, from which other allowable copies may be made.

II. The requirement that limited permissible copyright to facsimile only copies has been eliminated. Now, libraries may employ current technology, including digital technology, in the making of copies. However, in the case of unpublished works, digital copies cannot be distributed in that format and the digital copy must not be made available to the public in digital form outside the premises of the library. In the case of published works, the digital version cannot be made available outside the premises of the library or archives in lawful possession of such copy.

In other words, for published works, a library which made a digital version for preservation purposes, may loan the digital copy to another library which has lawful possession of the original. However, neither library may allow a member of the public to take the digital copy away from the library. The patron is, however, allowed to retain a facsimile or printed copy of those portions of the work allowed to be copied under section 108 or section 107 (fair use).

Although section 108 requires a library to place a copyright notice on any copies made pursuant to the statutory scheme, this requirement became outdated when the Copyright Act was amended to eliminate the requirement that works contain formal notice. Now, a library may simply state that the work may be protected by copyright if no notice is available.

III. In addition, the DMCA provides that preservation copying, which had been limited to instances where a copy of work has is damaged, deteriorating, lost or stolen and a replacement copy is not available at a fair price, may also be preserved if the copy’s format has become obsolete "Obsolesence" occurs if the machine necessary to read the work is no longer being manufactured or cannot be acquired reasonably in the marketplace.

Q&A on how this will impact me at Wayne State College (an interpretation)

1. Can I still place materials on Reserve in the Library?
A: Yes, however, there will be some changes necessary to make us legal.
Examples: - Photocopies of articles can be placed on Reserve for only ONE semester without copyright permission. Multiple copies of the same article must have written copyright permission. (1 copy for every 10 students in the class)

2. Can I copy a TV program off the air and show it in my class later?
A: Yes, however, the recording must be erased following the class.
Yes, but to keep it, you must purchase either the duplication rights, or a copy of the program.

3. Can I send a copy of an article via email to my class?
A: Yes, this is considered the same as making copies for every student in your class. However, if it is used every semester then it is not permitted without receiving approval from the copyright holder.
Yes, under certain circumstances this is permitted, but it means that the article or materials was found and passed on in a spontaneous manner. If the material was designed as part of the course or planned to be used it could not be distributed without permission of the copyright holder.

4. How do I get copyright permission?
A: First check with the library to see if it can be obtained through the CCC (see page 5), or if not, the library can help get contact information from the copyright holder.

5. Who is responsible for obtaining permission?
A: The person making the copy or requesting the copy made is responsible for obtaining permission.

6. How long will it take to obtain permission?
A. The time can vary between immediate response to never. If you can show documentation that you have made a reasonable effort to obtain permission, and have had no response within a reasonable time, it can be assumed that the copyright holder has no objection to you using the material for educational purposes.

7. Can I send my students to the full text article in a database?
A: Yes, this is always permissible. If the library does not have a contract with the database, you will not have access to the database.

8. Can I post copies of articles on my website?
A: Only if you have written them and are the copyright holder, or if you have permission from the copyright holder.

9. How long is something copyrighted?
A: That will depend upon: if the copyright holder has filed for extensions; when the material was published; and if the author is still alive.

10. When does it go into the public domain?
A: Any work published on or before Dec. 31, 1922, is now in the public domain.

Notes:

  • Works published between 1923 and 1978, inclusive, are protected for a term of 95 years from the date of publication, with the proper notice.
  • But if the work was published between 1923 and 1963, when there used to be a (non-automatic) “renewal term,” the copyright owner may not have renewed the work. If he or she did not renew, the original term of protection (28 years) would now be expired and these works will be in the public domain.
  • After 1978, the way we measure the term of protection changes. It is no longer related to a date of publication, but rather runs for 70 years from the date the author dies (called, “life of the author” plus 70 years). Further, publication is irrelevant. Works are protected whether they are published or not.
  • Finally, those works that were created before Dec. 31, 1978, but never published, are now protected for the longer, the life of the author plus 70 years, or until Dec. 31, 2002.

11. What materials are always considered “public domain”? (i.e. NOT copyrighted)
A: Works that lack originality (such as phone books, or reprints of works with no copyright or expired copyright)

  • Freeware (not shareware, but really, expressly, available free of restriction - ware - this may be protected by law, but the author has chosen to make it available without any restrictions).
  • U.S. Government works
  • Facts
  • Ideas, processes, methods, and systems which may have been described in copyrighted works.

12. Can we legally download music or movies from the Internet?
A: The short answer is NO.

Notes:

The longer answer is - it depends. Some music is placed on the Internet by their copyright holders, with permission to download. Some movies have what is called “Trailers” that are short excerpts of the movies. These are made specifically by the copyright holder for downloads or to promote the copyrighted work. (Usually they give a link to where the complete work can be purchased.)

  • Just because someone has copied the movie or music and placed it on the Internet does not make it legal for anyone else to copy or download that material.

13. Who pays for the copyright clearance of materials placed on Reserve in the Library? Or, that is used in my class?
A1: Your department, as long as your department chair or the Dean of your school agrees
A2: You can pay for it individually.

14. Can we show films from the library or that we’ve rented from a local video store in our classroom, or for the students to see?
A: Films can be shown in the classroom, as long as they serve a useful part of the class room instruction, and the film is owned or rented by someone with the legal right to do so.

Notes:

  • A local video store does not have the right to give permission to show a film in any public space.
  • Films used from the library are purchased with the educational use rights built in.
  • If you are showing a film every semester, or as an on-gong part of the class, it must be obtained from a legal educational supplier (NETCHE for example) or purchase by the library.
  • Unless public performance rights have been purchased, these films can not be shown outside a classroom setting, or in a public space.
  • Approximately one half of all films available in the library have been purchased with “Public Performance Rights.” This is indicated in a notes field in the Library Catalog.

15. What are the penalties for using copyrighted material without permission?
A: Up to $100,000 for each separate act of willfull infringement.

16. How long will the permission to use copyrighted material last?
A: Unless the copyright holder says differently, once permission is given, that permission last forever.

17. Who does the permission go to, me as the faculty member, or to WSC?
Q: Permission normally goes to the institution, however, in some specific cases it can go to the person requesting the permission to use the copyrighted material. This depends on the copyright holder and how the permission is requested. If you request it as a faculty member of the institution, then it is given to the institution. If you request it as an individual then the individual has the permission.

18. Since we are in a rural college, without big money, why should I worry about copyright?
A:

  • It's the law
  • Professional ethics
  • Many Copyright holders are going after “unlikely institutions” to make a point that no one is beyond the law.
  • Do you really want to gamble your retirement savings, plus perhaps your home and job by ignoring the law?

19. If a teacher is doing an on-line class, whether off campus or on campus, how much of their lecture notes must be documented?
A: All source materials must be notated (footnoted) and checked for copyright clearance, even if the materials are published behind fire walls, or republished using in-house publishing services

20. Music...how and when is it OK to make copies to be used temporarily, ie. while waiting for copies that have been ordered, for a temporary use, etc.
A: Copyright clearance of all original music, audio tapes, video must be sought prior to republication. This includes seeking permission for the continued education use of materials in-house and behind fire walls.

  • Temporary use is permitted for up to 45 days, as long as it is an analog source - Digital copies are not allowed without copyright clearance (see above).

21. When a faculty person has a booklet of printed information to be used for a class and sold by the campus bookstore, how can materials be copied for use in that class and kept legal.
A: All materials republished by any in-house publishing service and sold for commercial gain either directly or indirectly as part of another service provided for commercial gain ( e.g.. enrolled students) must be cleared with the appropriate authority / copyright owner.

22. How about copies used from a book or music that is "out-of-print"...how is this done to be legal.
A: Materials that are out of print, music no longer published, video/ film etc. are still copyrighted. There are some Fair use exceptions and educational usage permitted.

  • Fair use practices allow for educational use or copying of analog sources if they are no longer available for sale or through loan. IF a good faith effort has been made to obtain either copyright clearance or purchase the material. (This means you must have a paper trail of your attempt to comply with the copyright law).

23. How much of a source can we copy?
A: Normally not more than 10% of the total work, or one chapter of a book - whichever is less.
S Again, there are some Fair Use practices that will allow you to exceed this limitation.

24. What would happen to me and WSC if there were some legal concerns from the copyright holder?
A: Normally the procedure would be something like this:

  • First a letter or notification from the copyright holder to the institution or individual.
  • Second, if institution of individual does not comply with the copyright holders request, legal action is normal.
  • Third, individual and/or institution must defend themselves in court.
  • If an individual has not followed the institutions policies, they are on their own to defend themselves.

25. How does copyright pertain to the use of visual images published in print or electronically (ads, illustrations, photographs), and art, etc.? How much of the image must be modified in the making of art? What can be appropriated and what can be used as source material without violation?
A: Copyright on visual images, web page graphics etc. are owned by the creator. Copyright clearance is generally sought for the use of any third party graphics and images, e.g.. the use of images to simulate software training environments.

  • Many academics and those employed in online development centers generally sign a contract that specifies anything produced for use online for the employer is the property of the academic institution. This places the legal onus of responsibility on the institution. Anything produced by any employee under the terms of the contract and disputed by a third party is a matter for the institution to resolve.
  • Using an existing piece of art to create a new work is considered a “derivative” work - meaning it wouldn’t have existed unless the original work had existed.

26. Can I copy a CD, videotape or DVD if I purchased it?
A: If it is analog, Yes.

  • If it is Digital, only if there is no encoding to prevent you from copying.

Note: You cannot bypass the encoding protecting digital works. That is considered a criminal offense, not a civil offense.
--------------------------------------------------------------------------------
[1] Text by Georgia Harper, University of Texas System. http://www.utsystem.edu/ogc/intellectualproperty/copypol2.htm
[2] http://www.utsystem.edu/ogc/intellectualproperty/teachact.htm
[3] http://www.utsystem.edu/ogc/intellectualproperty/permissn.htm
[4] http://www.copyright.com/
[5] http://www.utsystem.edu/ogc/intellectualproperty/l-resgen.htm
[6] http://www.arl.org/info/frn/copy/band.html