Welcome statementCopyright infringement is a serious issue faced by all educational institutions and individuals given the vast amount of protected works shared in the educational learning environment by faculty and students. It is essential for educational institutions to develop comprehensive copyright policies which cover intellectual property and the appropriate use of protected materials within the educational setting as well as provide appropriate training and resources to ensure students, staff, and faculty are aware of an follow established copyright procedures and processes. A look at the copyright laws and exceptions for nonprofit educational institutions sets a foundation from which to develop a comprehensive copyright policy.
Copyright law is found within the United State Constitution and the foundation from which copyright laws in the United States emerged is rooted in the British legal system with the Statute of Anne in 1710 (Bonner, 2006; Wilson, 2005). As noted by Wilson (2005), “the men who wrote our Constitution acted to ensure the production of the works of art and intellect necessary to create and promote culture and learning in our infant nation” (p. 3). Copyright laws encourage and support authors and creators to share their works with the public yet maintain financial rights and publication rights for a specified time period. Bonner (2006) referenced the Constitution and wrote: the Constitution does not state that the exclusive rights of the creator should be held in perpetuity, and the wording “for limited times” was clearly designed to balance the need for incentives (providing for exclusive ownership and profit by that ownership) and the need for the free and open use of information for the purpose of a thriving democracy (by limiting the author’s right of exclusive ownership to a set period of time). (p. 2) Copyright law affords copyright owners certain rights and provides an avenue from which to seek recourse and damages against those who violate the rights of the copyright owners. It was clear from the beginning that our forefathers sought to seek a balance between the open sharing of information and the right to claim ownership of the materials shared with the public. The public gains from the sharing of information and innovation at the same time the copyright holder receives protection as “it is often said, correctly, that copyright law seeks to balance the rights of copyright holders, in order to spur continued innovation, with the rights of users of copyrighted works, to allow for potentially broader scope of such innovation” (Keogh & Crowley, 2008, p. 1). The public gains from the sharing of information and innovation at the same time the copyright holder receives protection as “it is often said, correctly, that copyright law seeks to balance the rights of copyright holders, in order to spur continued innovation, with the rights of users of copyrighted works, to allow for potentially broader scope of such innovation” (Keogh & Crowley, 2008, p. 1). The statute governing copyright contains what is termed fair use of the materials which is defined by Wilson (2005) as “any use that is deemed by the law to be ‘fair’ typically creates some social, cultural, or political benefit that outweighs any resulting harm to the copyright owner” (p. 67). Most notably the areas of fair use are seen in (a) news reporting, (b) education, (c) creative works, (d) internet, and (e) commerce. Given the fair use options and the limited duration of copyright protection, everyone benefits from the creation and innovation of new works. Educational institutions must develop policies and procedures associated with copyright law to address copyright infringement to ensure all instructors and students are aware of the specific and appropriate uses of copied materials in an educational setting. A proper training program for new instructors as well as refresher trainings should also be provided as one means to reinforce the copyright laws. The sanctions and damages which could be claimed by a copyright owner by filing an infringement lawsuit could be costly to the individual who violated the rights of the copyright owner as well as the educational institution. Education goes beyond courses for a degree and crosses over into the ethical and legal issues of copyright infringement which must be provided for faculty and staff to find the balance needed to use source information created by others in the educational setting.
Nonprofit educational institutions are afforded additional leeway within the copyright act as what may initially appear to be copyright infringement may actually fall under an exemption to the law and is not actual infringement. Section 108 of the copyright statute expounds on the exemptions afforded to libraries and archives of copyrighted works and Section 110 defines the exemptions afforded to nonprofits for certain performances of copyrighted works (Wilson, 2005). Fair use occurs when use of the materials are in the public interest even though materials normally protected by copyright laws are reproduced in some format and generally fall into four areas (a) news reporting, (b) education, (c) creative works, (d) internet, and (e) commerce (Wilson, 2005). As noted by Waxer and Baum (2006) “fair use may be claimed when you use a portion of a copyrighted work for certain purposes without permission from the owner” (p. 53). The test of whether the copyright materials which are used without permissions or licensing fall under fair use is determined on a case-by-case basis of four factors as outlined by Waxer and Baum: 1) Character and purpose of the use (Commentary and criticism (scholarship and parody), news reporting, research, nonprofit versus commercial use)2) The nature of the copyrighted work (Primarily factual versus creative, published versus unpublished work3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole (qualitative ‘heart of the work’ , quantitative (the less the better)4) The effect of the use on the market or the potential market for the copyrighted work (pp. 54-55). Fair use does not give free reign to educational institutions to use copyrighted materials unless the use meets the four factors of fair use. In an educational environment the use of musical compositions require a proper musical license to reproduce the musical work which must still adhere to specific conditions (Bonner, 2006). Copyright infringement can occur within the educational environment when the use of musical works falls outside of the specific uses covered by the licensing agreement. All materials used for educational purposes must be properly cited and comply with what is commonly termed the Classroom Guidelines (also known as the CONTU guidelines) and with the “safe harbor guidelines for instructors and students who want to digitize analog images or to create multimedia work for class room use, self-study, or remote instruction” (Waxer & Baum, 2006, p. 57). The guidelines are outlined in the House Report as part of the Copyright Act of 1976 and are formerly titled the “Guidelines for Classroom Copying in Not-for-Profit Educational Institutions with Respect to Books and Periodicals”.Other permissions/licenses must also be garnered in the case of the library and materials made available for reserve or e-reserve.
Control and use of instructional materials at educational institutions produced by faculty are an increasing issue associated with copyright policies as the statutory interpretation as applied to the law is ever changing given the diverse conditions of educational institutions (Bonner, 2006). Review of the work-made-for hire doctrine is necessary to establish the basis from which to develop a policy which aligns with the academic culture and recognizes appropriate ownership of intellectual property – this is when an employee creates materials in the scope of their employment (Bonner). Review of recent court rulings is vital at this point in reference to what has been termed the “teacher’s exception” as was noted by Bonner (2006). Scholarship is an important component of faculty work and the individual research and development of materials is protected by copyright law. The balance between who owns the copyright occurs when the materials are created on work hours and/or with work equipment. Clearly research conducted on one’s own time and from one’s own equipment is owned by the original creator of the works who should take the time to submit the works for copyright acknowledgement. The creation of college policies is not an easy task. First must clarify the matter of copyright ownership – ownership is placed with one party which is detrimental to both the university and the instructor given that the relationship is not mutually exclusive (Bonner, 2006). A clear and concise division of who owns what materials and at what stage must be agreed upon as well as align with recent court rulings on such matters. Declarations of policies which do not coincide with the law are not considered valid (Bonner) – create policies that are within the law and promote the creation of intellectual property within the academic culture. Second develop documents to be signed by both the faculty member and the university which clearly establish ownership based on institutional policies and the copyright law - written agreements fair better than conflicting policies and processes (Bonner). Lastly, be sure to address issues related to transfer of rights and the unbundling of rights associated with specific works – know who is to own what and when ownership may change (Bonner).Technology and e-learning present additional issues to address in copyright policies. The use of e-reserves and appropriate licensing must follow the latest guidelines established in copyright law as mentioned earlier in reference to the CONTU and CONFU guidelines. There are further responsibilities of the institution to ensure that only students enrolled in the classes are intended to receive the transmission of information as well as developing and properly implementing policies to provide information concerning digital transmissions. In order to take advantage of the provisions of the TEACH act educational institutions “must institute a copyright policy and must provide informational materials on copyright for faculty, staff, and students” (Waxer & Baum, 2006, p. 170). Instructors of online courses must be just as prudent as instructors in traditional classroom settings and follow the intent of fair use.
The administration should review the policies and procedures associated with copyright infringement to ensure all teachers are aware of the specific and appropriate uses of copied materials in an educational setting. A proper training program for new instructors as well as refresher trainings should also be provided as one means to reinforce the copyright laws as faculty should possess a functional level of copyright literacy (Bonner, 2006). All teachers must be informed of the criteria contained in the guidelines for classroom use and access to a publication by the Copyright Office titled Reproduction of Copyrighted Works by Educators and Librarians is a good reference to keep on hand and to use as a training guide to educate teachers and hopefully avoid potential copyright infringement lawsuits. Students should also possess a functional level of copyright literacy according to Bonner (2006) and the posting of copyright acceptable use policies and copyright guidelines is vital to support students in learning copyright laws. Copyright education is not only for faculty and staff as the vast majority of copyright infringement occurs from students who are not aware of copyright issues and are not informed about college policies and guidelines. Given the vast availability of copyrighted materials on the Internet and the nature of the technology information world it is easy for users to unintentionally infringe upon the rights of copyright owners (Wilson, 2005). The ability to access information and images via the Internet using the World Wide Web (Web) and other Internet services such as instant messaging and e-mail includes are considered tangible mediums which are protected by copyright law requiring appropriately acquired permissions or licensing. Open content and open source are an exception to the copyright law as works from both sources are in the public domain. Finally it is important to understand why appropriate policies and copyright education programs are essential to an educational institution as both individuals and educational institutions which are found in a court of law to have violated the rights of copyright owners may be subject to the following sanctions as noted by Waxer and Baum (2006): Injunction to prevent the publication or distribution of the infringing work including performances or displays of the works;Impound and dispose of the infringing items;Actual damages from lost profits;Statutory damages between $750 and $30,000 with additional amounts of up to $150,000 for willful infringement or reduced to $250 for innocent infringement;Court costs and attorney’s fees. (p. 67)When copyright infringement is found to be willful the copyright violator may also be held criminally liable and face additional penalties including imprisonment and/or fines (Waxer & Baum).
The resources listed provide quality background information to consider as copyright law policies and procedures are being developed.
The examples provided are designed to give the viewer insight into other ways to disseminate and convey copyright law information along with practices, policies, processes, and procedures.
The references used for this presentation are additional resources you may find helpful along your journey.
Copyright at Work in a Community College Robin Bunnell August 10, 2011
Copyright and Educational Uses Balance Between Appropriate Fair Use and Infringement Copyright Law Free Use Fair Use Doctrine Use by Permission Practices Policies Procedures Compliance
Copyright Law Public Domain Free Use Copyright Act of 1790 – books, maps, charts Revised to include musical compositions, public performances, photographs, fine art, original works of authorship, architectural works, computer software rentals and sound recordings, digital audio transmissions, unreleased films and music Educational non-profit Infringement: direct, contributory, or vicarious Facts, ideas, concepts, principles, processes, procedures, systems, titles, short phrases, names, common symbols or designs, lettering, list of ingredients, or discoveries Expired copyright term Works created by the Federal Government Creations ineligible for copyright protection Copyright Law and Free Use
Fair Use in Education Permissions Required Non-profit educational purposes Meet the four factors of fair use Cite sources Classroom Guidelines (CONTU) – books, periodicals, music Conference on Fair Use – safe harbor guidelines Digital Millennium Act of 1998 TEACH Act of 2002 Permission/licenses Library licenses Library reserves/e-reserves Licensing beyond the library What is Fair Use or is Permission Required?
Copyright Practices and Policies Intellectual property and academic culture The practice of scholarship College policies Faculty works Technology E-Learning
Procedures and Compliance Focus is on promoting compliance with copyright laws and to avoid copyright infringement
Compliance within educational setting O pen source and free use Policies and procedures Y our responsibility Rights of copyright owners Infringement Gain permission first H elp everyone know the laws Technology issues
Resources United States Copyright Office Information Site: http://www.copyright.gov American Library Association links: Copyright portal: http://www.ala.org/ala/issuesadvocacy/copyright/index.cfm Resources on the TEACH Act and Distance Education: http://www.ala.org/Template.cfm?Section=distanceed&Template=/ContentManagement/ContentDisplay.cfm&ContentID=25939 Copyright Advisory Network: http://www.librarycopyright.net/ Stanford University Resources Link: http://fairuse.stanford.edu/web_resources/web_sites.html
Examples in Action Everett Community College: http://www.everettcc.edu/administration/policy/index.cfm?id=3346&linkFrom=AliasJackson Community College: http://library.jscc.edu/library-services/faculty-services/copyright-information.htmlMaricopa Community College: http://www.maricopa.edu/legal/student/copyright.phpNorth Carolina State University: http://policies.ncsu.edu/regulation/reg-01-25-2Southwestern Oregon Community College - for context of the presentation: http://www.socc.edu/library/pgs/policies-guidelines/copyright/index.shtmlStanford University: http://fairuse.stanford.edu/index.htmlUniversity of Minnesota: http://www.lib.umn.edu/copyright/Wheaton College: http://wheatoncollege.edu/library/library-information/copyright/Winthrop University: http://www2.winthrop.edu/copyright/default.htm
References Bielefield, A., & Cheeseman, L. (2007). Technology and copyright law: A guidebook for the library, research, and teaching professions (2nd ed.). New York, NY: Neal-Schuman Publishers, Inc.Bonner, K. et al. (Eds.). (2006). The center for intellectual property handbook. New York, NY: Neal-Schuman Publishers, Inc.Keogh, P. & Crowley, R. (Eds.). (2008). Copyright policies (Clip Note #39). Chicago, IL: American Library Association.Waxer, B., & Baum, M. (2006). Internet surf and turf revealed: The essential guide to copyright, fair use, and finding media. United States of America: Thomson Course Technology.Wilson, L. (2005). Fair use, free use and use by permission: How to handle copyrights in all media. New York, NY: Allworth Press.