Pima County Community College District Standard Practice Guide
SPG Title: Copyright Practice and Compliance
SPG Number: SPG-2701/AA
Effective Date: 9/10/07
Approval Date: 9/10/07
Review Date(s): 10/19/12
Revision Date(s): 10/19/12
Schedule for Review & Update: Annually
Unit Responsible for Review & Update: Executive Vice Chancellor for Finance and Administration
Sponsoring Unit/Department: Executive Vice Chancellor for Finance and Administration
Regulation Title & No.: Copyright, RG-2701/A
Policy Title(s) & No(s): Copyright, BP-2701
Legal Reference: 17 U.S.C. 101, et seq.
Cross Reference: Copyright Ownership, BP-2702
The purpose of the Pima Community College Copyright standard practice guide (“SPG”) is three-fold:
- to provide general guidelines on the lawful use of copyright-protected material for the benefit of employees, especially faculty and technical services support staff, and students;
- to provide a brief overview of the relevant U.S. copyright laws; and
- to provide a short list of resources available to the College community for assistance in complying with the relevant copyright laws.
This SPG has four Sections
- First, a plain-language Introduction to copyright issues in academia.
- Second, a discussion of the relevant Concepts governing copyright law in the U.S.
- Third, Suggested Procedures for faculty and support staff as they select and prepare course materials.
- Fourth, a selected list of Resources available to the College community for use in complying with the copyright laws.
- At the end of this SPG is a Sample Letter for obtaining the copyright owner’s permission to use a protected work as well as a list of information that normally should be supplied with your request.
The information in this SPG is directed to instructors, librarians, technical services support staff, administrators and other College employees.
In this SPG, the term “technical services support staff” is used to identify non-teaching personnel, such as Instructional Designers, Web Designers, Library Technical Services staff, and other College employees who facilitate the dissemination of copyright protected materials.
The information in this section is not a substitute for the more detailed information about copyright law provided in Sections 2 and 3 below. The information in this section applies as much to digital media and the worldwide web as it does to books, magazines, artistic performances, news reports, television broadcasts, film, videos, audio recordings, and other media.
Copyright has two main purposes: (1) to protect owners’ rights to earn money from their work; and (2) to protect owners’ rights to control how the work is used. What follows touches on a few nuts-and-bolts applications of copyright law in an instructional setting.
1.1 Public domain
Some works are in the public domain and are freely available to all wishing to use them. These are works whose copyright has expired as well as works granted to the public by their owners. If the material is in the public domain and you are certain of that fact, you may copy it and so may your students. Once material is given to the public domain, the owner has abandoned all rights in it.
Facts and ideas cannot be copyrighted but their expression and structure can. If you take someone else’s ideas and facts and write them up in your own words, you are not infringing their copyrights. (Depending on the circumstances, you may or may not be plagiarizing, but that is an ethical and academic issue, not a legal issue.)
If you want material from the public domain, go to the two largest sources: the U.S. Government and Project Gutenberg. Materials developed by governments such as the U.S. Government and the State of Arizona often include materials whose copyright has expired. Project Gutenberg is the oldest provider of public domain books available online.
Creative Commons, while not public domain, is material posted at the Creative Commons website, creativecommons.org. This material typically is licensed, but generally the only compensation the owner requests is a proper acknowledgement consisting of a copy of the original copyright notice as well as the name of the author and/or owner. You and your students can learn more about Creative Commons licenses at the Creative Commons website, http://creativecommons.org/.
If you are not certain whether a particular work is in the public domain, you must diligently look into its ownership. Printed matter, material on the internet, even the code for software usually includes ownership and copyright details. The law says that generally you, not the student, must dig for the details.
1.2 The analysis
If the work you want to copy is not a protected work, i.e., it is in the public domain, you and your students may use and copy it.
If the work is copyright protected, however, your analysis must go further. The question that must be asked is the following—is use of the work in your class permitted under the Fair Use Exception to copying restrictions? Fair use is a complicated concept and is discussed below. If the work you want to copy can be used under the Fair Use Exception, you may use the work without permission, but you must include author acknowledgements and owner attributions.
On the other hand, if use of the work is not permitted under the Fair Use Exception, you can usually still make it legally available to your students, if the proper permission is obtained.
1.3 Some assumptions
When thinking about copying materials for instructional purposes, apply basic common sense.
Start by remembering that the copyright owner may not be the same person who created the protected work. Indeed the owner – the person or company who will sue a college if their work is infringed – very often is not the author or creator. Owners are often large organizations: publishing houses, recording and film studios, dot.coms, and so on. They zealously guard their protected works.
Students rarely get sued for copyright infringement. Their schools do. That is because the law generally places responsibility for observing the copyright laws on faculty, technical services support staff, and the College.
Therefore, do not assume you have done your job by simply warning your students not to make illicit copies of print materials or illicit downloads of a web page or video.
You should assume that other people’s works are copyrighted and may not be copied without authorization unless you know otherwise. This applies to internet material, phone apps, website pages, software, books and other forms of hardcopy, pictures, videos, visual designs, and so on.
If you copy protected work without the necessary permission, the copyright owner can sue you and the College for copyright infringement.
Do not think that if you are ignorant about the status of the work that you are in the clear. Infringing someone’s copyright innocently is not a defense. Always try to obtain permission to use copyright-protected work before you use it. And if you do not know whether the work is protected or not, always make a sincere, good faith, and diligent effort to identify and track down the owner.
Copying for an educational purpose, however, does not mean it is legal. If copying occurs and your students save money because they do not have to buy the work, you may be infringing.
1.4 Basic questions
The most important considerations are: (1) the effect copying the material has on an owner’s ability to make money from his or her work; and (2) intent, i.e., the reason you are using the copyright-protected material.
The first question to answer is why you are using the copyright-protected material without paying for it or without your students paying for it. If you are trying to make it possible for your students to use a book or subscribe to an online magazine without having to buy the book or magazine, you are likely infringing the rights of the copyright owner.
Similarly, if a student can copy most or all of a work you have made available on the web, say by downloading a PDF version you uploaded for the class, will the student’s act of downloading eliminate his or her need to buy the complete work?
If you are copying to replace an anthology or a compilation of collected works that students can buy in a book store, you are likely infringing. If you are copying a workbook or standardized test without the owner’s permission, you are infringing unless you obtain permission and/or a license.
Do not delegate the analysis to either a copy center or to your students. It is your responsibility to analyze whether the work is protected.
It does not matter whether you take the material to a copying center and have the center make copies for the students to buy, or whether you direct your students to the copy center to make their own copies of a book held on reserve in the library. Either way, at your direction copies are being made of other people’s copyright-protected work. That cannot be done without permission from the copyright holder.
Similarly, if you are directing your students to link to a certain site to download and/or copy material, and it contains material that is copyright-protected, you could be liable for contributorily infringing the protected work. This can occur even though you are not doing any downloading and/or copying yourself. You are encouraging your students to download and/or copy the work for themselves. That is similar to letting one of your books circulate among your students so that they can each independently visit Kinko’s, or other copy centers, to make copies of it. The bottom line is that the owner of a commercially available, protected work is not receiving the commercial benefit the law allows.
1.5 Fair Use
Be very careful about copying materials and defending your actions by calling it “fair use.” Fair use is a term that is used frequently but it is, at best, an elusive concept.
Generally, fair use is copying a short excerpt of a work for instructional purposes and being careful to attribute the excerpt to the true author and copyright owner. Do not copy more of a given work than is necessary to make your point. Make sure that the copying does not harm the commercial value of the work, for example, by making it unnecessary for your students to buy it. Reproduction of an entire work is often infringement.
Do not think that just because you are copying a short excerpt you are home free. Remember the case of late President Gerald Ford’s memoir. It was a 200,000-word memoir for a serial magazine article and only 300 words were copied by a competing magazine. The 300 words that were copied, however, were the most important reason a member of the public might buy and read the memoir in the first place—this portion of the work contained the explanation why then-Vice President Ford pardoned Richard Nixon.
The fair use of multimedia materials falls under the same general framework described above. It is usually OK to use “small amounts” of a work although not repeatedly over a period of years, but with proper attributions and citations, etc.
The unofficial definition of “small amounts” is ten percent (10%) but often, as in the Gerald Ford memoir instance, even ten percent may be too much.
Never rely just on the numbers. If you are copying one of 600 songs by a vocal group, and it happens to be the song that made the group famous, you are infringing.
Similarly, in a computer program containing half a million lines of source code, it may be the case that 300 lines are critical. Copy those and you have copied the core of the application.
Typically material can only be used for one semester without permission. If you use material in your courses, whether electronic, digital, or hard copy, do not use the material over and over again unless you have permission to do so. Do not use much of the material and make sure it is not the critical core of the material, i.e., remember the Gerald Ford memoir. Always credit the source, display the original copyright notice, and provide the ownership information.
1.6 Fair Use and the Internet; Digital Media
Material posted to the internet is not necessarily material granted to the public domain. Just because it is on your monitor does not mean it belongs to the world.
Many items on the internet include, at the bottom of each page, a notice of copyright ownership and the name of the copyright owner. Never assume, however, that material that is posted on the internet and that lacks a copyright notice is in the public domain. Copyright holders are not required to post a copyright notice on their protected work.
If you want to copy material that lacks a notice, you have a duty to exert your best efforts to hunt down the name and contact information of the copyright owner. You then have the second duty to seek and obtain the owner’s permission to use the material in your course.
If copyright-protected material will be distributed in an online instructional setting, make sure this occurs in a secure network. In addition, the material posted should be deleted from that network as soon as possible after its use. The rule of thumb is 15 days, but if the material is necessary for end-of-term examinations, the material can be made available until the course is over. Then it should be removed and archived.
When you direct your students to a website either directly or through a link, you must remind them that the site may contain copyright-protected material and that their visit cannot include downloading, copying, or attempts to bypass any security on the site or any payment system on the site. In Section 4.11 you will find a recommended Notice to Students with directions for its placement.
If a particular website is an ordinary website, without security such as a password, and it does not demand payment, and there is no information on the site about not wanting the visitor to link, and there is no reason to believe the owner of the site does not want to be linked, then linking should be safe.
Because of the legal restrictions on course packets, some instructors and schools have created Electronic Reserves. Electronic Reserves (“ERs”) are computer and web-based substitutes for course packets.
Instead of taking various essays, articles, and chapters to a copy center for copying and sale to students, instructors create electronic, usually digital, copies of the works. They would then upload the copies onto the College’s Course Management System (CMS) where students may access, read, download and print the works.
There is no functional difference, however, between materials reproduced in a copy center and materials placed on open-access electronic reserves. Unless properly safeguarded, ER materials can easily be downloaded and printed. The consequence is the same as if hard copies had been distributed to the students.
ERs can be useful and even essential for unavailable works such as old and out-of-print publications, unique and/or archival materials, and the like. That use of ERs is normally legal. These types of uses differ sharply, however, from the use of ERs to make available to scores of students an otherwise commercially available textbook or trade publication such as a contemporary novel.
All ER materials must be placed on a secure, password-protected system. Absent permission of the various owners, they may not be downloaded or printed. They must be taken off reserve at the end of the course term.
1.7 Permissions, Licenses, Acknowledgements
For most protected work, you can obtain the necessary permission to copy. Usually the permission is in the form of a license. The College can help you with this. See Section 4, Resources and the Sample Letter.
It is your responsibility to obtain permission from the copyright owner. Do not delegate this task to a copy center or your website host. See Section 4, Resources.
Even with permission to use copyright-protected work, always include the proper acknowledgements of authorship and, if the owner is different from the author, ownership. For example, if you are directing your students to listen to a video or sound recording or a part of it, the studio, the performers, as well as the writer, may require attribution.
If you fail to track down the name and contact information of the owner of the material you want to copy, and the first day of class is around the corner, you can use the material on a single occasion. But do not use the material a second time in another class unless you repeat the exercise of diligently trying to track down the owner.
Remember also that if you or your class can use the work via a license, you should obtain the license. Most copyright owners will grant a license for use of a work by a non-profit educational institution such as a school or a college, and will charge very little or nothing for that use. They will, however, probably demand appropriate citations and attributions to the source, as well as inclusion of the original copyright notice on the copy.
2.1 Copyright Law
Copyright is a form of protection provided by the laws of the United States (Title 17, U.S.C. § 101, et seq., hereafter “the Copyright Act” or “the Copyright Law”) to the authors of “original works of authorship,” including literary, dramatic, musical, architectural, cartographic, choreographic, pantomimic, pictorial, graphic, sculptural and audiovisual creations. This means that virtually any creative work — including books, magazines, journals, newsletters, maps, charts, photographs, graphic materials, and other printed materials, unpublished materials, and non-print materials, including electronic content, computer programs and other software, sound recordings, motion pictures, video files, sculptures, and other artistic works — is almost certainly protected by copyright. This protection is available to both published and unpublished works.
The Copyright Act generally gives owners of copyright the exclusive rights to reproduce, distribute, publicly perform and publicly display their works. These rights provide copyright holders control over the use of their creations and an ability to benefit, monetarily and otherwise, from the use of their works. Copyright also protects the right to “make a derivative work,” such as a movie from a book; the right to include a work in a collective work, such as publishing an article in a book or journal; and the rights of attribution for “authors” of certain works of visual art.
Copyright law does not protect ideas, raw data or facts. Rather, it protects how material is expressed, i.e., the form in which material is communicated to the public. Graphs, compilations, etc., may be protected even if the facts they report are in the public domain. Musical notes cannot be protected, but how they are arranged to create a sound recording often is.
It is illegal for anyone to violate any of the rights provided by the Copyright Law to the owner of a copyright. These rights, however, are not unlimited in scope. See, the discussion of Fair Use.
The general rule of copyright duration for a work created on or after January 1, 1978, is the author’s life plus 70 years after the author’s death. This is often referred to as “life-plus-70.” Works created by companies or other types of organizations generally have a copyright term of 95 years.
If the user of copyright-protected material is not a copyright holder, he or she must ordinarily obtain copyright permission prior to reusing or reproducing that work. As set out below, however, there are a number of specific exceptions to this general rule.
2.2 Special Copyright Provisions for Academia
The Copyright Act contains specific exceptions for use of copyright-protected material by academic institutions. These provisions include:
- 17 U.S.C. § 107 on fair use, which applies to activities such as the use of excerpts for illustration or comment; the unexpected and spontaneous reproduction of classroom material; and the creation of parodies.
- 17 U.S.C. § 108 on reproduction by libraries and archives, which applies to activities such as archiving; replacing lost, damaged or obsolete copies; patron requests for entire works; and inter-library loans.
- 17 U.S.C. § 109 on first sale, which permits the resale or lending of copies of works, providing the basis for library lending and the sale of used books.
- 17 U.S.C. § 110 on the use of material in an educational setting, which permits the performing of and/or displaying of certain works in the classroom and in distance education.
2.3 The Technology, Education and Copyright Harmonization (TEACH) Act
In 2002, the Technology, Education and Copyright Harmonization (TEACH) Act became law and expanded the latitude universities and colleges have for the performance and display of copyright-protected material in a distance education environment, including through the use of the CMS.
A provision for “fair use” is found in 17 U.S.C. § 107 of the Copyright Act. Under the fair use provision, certain limited reproduction of copyright-protected material is likely to be considered fair (i.e. lawfully permissible) if the reproductions are used for any of the following purposes: criticism, comment, news reporting, teaching, scholarship and/or research.
Not all academic use, however, will be deemed fair use. The Copyright Act does not designate the specific types of content reproduction that qualify as fair use. Instead, it offers a general framework to assist in determining whether fair use may apply in a particular situation. Academic personnel must determine whether fair use applies in each particular circumstance, based upon the following four general factors:
- the purpose and character of the use, including whether such use is of a commercial nature or is for a non-profit educational purpose;
- the nature of the copyright-protected material;
- the amount and substantiality of the portion used in relation to the copyright-protected material as a whole; and
- the effect of the use upon the potential market for or value of the copyright-protected material.
Copyright infringement lawsuits are expensive and unpleasant. College personnel should therefore take the necessary preventive measures before copying.
Applying the four fair use factors can be complex. Section 3 of this SPG contains suggested guidelines for determining fair use for particular types of copyright-protected material. If an instructor’s use of a work does not fall into one of these guidelines, he or she should seek assistance from his or her administrative supervisor in determining whether a particular use of a work falls within or outside the limits of fair use.
3.1 Fair Use Generally
To avoid confusion and minimize the risk of copyright infringement, the College interprets the following situations as fair use:
- quotation of short passages in a scholarly or technical work for illustration or clarification of the author’s observations;
- use of short portions of a copyright-protected material in a parody; or
- a summary of an address or article, which may include quotations of short passages of the copyright-protected work.
Fair use does not include mass copying of material for repeated classroom use, use in a commercial activity, use that results in profit, entertainment as opposed to educational use, use that does not give credit to the original author.
3.2 Classroom Handouts
Classroom handouts fall into two categories: ones that requires permission and ones that do not. If the handout is a new work for which an instructor could not reasonably be expected to obtain permission in a timely manner and the decision to use the work was spontaneous, an instructor may use that work without obtaining permission.
However, if the handout is planned in advance, repeated from semester to semester, or involves works that have existed long enough that one could reasonably be expected to obtain copyright permission in advance, an instructor must obtain copyright permission to use the work.
Instructors may not copy from works intended to be “consumable” in the course of study or teaching such as workbooks, exercises, standardized tests, answer sheets, and similar materials.
These guidelines for classroom handouts apply to copyright-protected materials that an instructor places on reserve in the library for use by students.
3.3 Course Packs
A course pack is a bundled set of materials from a variety of sources, e.g., articles, essays, book chapters. Typically the instructor assembles the materials and asks a copy center to copy them and sell them as bundled sets or packets. Students usually purchase the course packs from either the copy center or bookstore. A course pack frequently makes it unnecessary for students to buy the complete books, journals, etc.
If a course pack is prepared and sold to students, without the necessary permission of the owner of each item in the course pack, the instructor, the copy center, and the bookstore are all infringing the owners’ rights.
Unless a particular item is covered by the fair use exception (for example, quotation of a short passage as referenced by Section 3.1) all articles, chapters and other individual works in any printed course pack require copyright permission. Copyright permission for course packs is usually granted for each academic period. To re-use a course pack in subsequent academic periods (e.g. semesters), an instructor should obtain permission again. Many copyright holders provide time-sensitive permission because their own rights may be time-sensitive and could be transferred to different copyright holders at any time.
Deferring responsibility for copyright permission—for example, to the copy center—will not provide an instructor or the College protection against a claim of copyright infringement. Delegation should be avoided.
3.4 Photocopying by Students
Photocopying by students is subject to a fair use analysis. A single photocopy of a portion of a copyright-protected work, such as a copy of an article from a scientific journal made for research, may be made without permission. The following constitute copyright infringement unless permission is granted beforehand to make copies: (1) photocopying all the assignments from a book recommended for purchase by the instructor; (2) making multiple copies of articles or book chapters for distribution to classmates; or (3) copying material from consumable workbooks.
3.5 Electronic Reserves
Electronic Reserves (ERs) are computer and web-based substitutes for portions or all of a course pack. Instead of taking various essays, articles, and book chapters to a copy center for copying and sale to students, instructors sometimes create electronic copies of the works. They then ask the library to upload the copies onto the library’s reserve network or its equivalent; there students may access, read, download and print the works. Absent permission of the owner of each uploaded work, these constitute copyright infringement.
ERs can be essential for unavailable works such as old and out-of-print publications, unique and/or archival materials and the like. That use of ERs differs sharply from the use of ERs to make available to scores of students an otherwise commercially available textbook or trade publication such as a contemporary novel.
Instructors are responsible for following the guidelines in this SPG when placing copyright-protected material in Electronic Reserves. These requirements apply to every College network or system as well as College web pages.
All materials in ERs must be uploaded on secure, password-protected systems. Absent permission of the owner of the work, materials in ERs should not be downloadable or printable. They must be removed from ERs at the end of the term in which the course is given.
In general, the guidelines for classroom handouts apply to ERs. See the guidelines for transmitting copyright-protected material online.
3.6 Movies, Images Downloaded from the Internet, Songs from a CD, Programs Recorded from the Radio
In face-to-face classroom teaching when the purpose is educational, a student and instructor may perform or display any copyright-protected material without permission from the copyright holder as long as the material was originally lawfully made and acquired, i.e., purchased by the College or its personnel. The only exception to this rule is when the work displayed is a program recorded from television (see below). For example, a history class may watch a videotape of the film series “The National Parks” even though the videotape is labeled “Home Use Only” as long as it is being displayed in class for educational purposes.
This does not mean that an instructor can make copies of these media items and give them to students. That is not permissible absent the owner’s agreement.
In face-to-face teaching, an instructor may show a program recorded from broadcast television (as opposed to cable) as long as the following guidelines are followed: (1) show the program in the days immediately following its broadcast, i.e., within two weeks and do not show it more than twice; (2) do not use the recording in subsequent semesters; (3) as with all material, include the copyright notice which in this case would also note the date of the original broadcast; (4) do not modify the recording in any way; (5) do not make more copies than you need for instructional purposes; and, (6) purchase or license the program or erase the copy within six (6) weeks of its broadcast.
College employees should avoid using cable (fee-based) TV recordings such as HBO or CNN unless they first obtain the necessary permissions, in writing.
3.8 Linking to Copyright-Protected Material on the Internet
Note that “deep linking” to a web page past the first page of a website does not give an instructor the right to use the material if the TOU prohibits such use.
Online classes are characterized by a complete or near-complete absence of face-to-face contact between the instructor and student and by online delivery of all instructional materials including “class sessions.” Hybrid classes combine classroom learning with online learning. Unlike fully online classes, hybrid classes require some regular attendance on campus.
Distance Education and the use of copyright-protected materials to teach it are controlled by the TEACH Act (also referred to in this SPG as the “Act”). The Act permits the use of many protected materials, more so than under traditional instructional settings, while at the same time imposing greater restrictions.
Consequently, the Act’s passage has created a tension between what is legally required, on the one hand, and what is pedagogically and technologically feasible, on the other.
Instructional and technical services support staff are required to take all reasonable steps to insure enforcement of the Act’s requirements. However, what is “reasonable” in a given set of circumstances is still being debated in the courts. Another key concept of the Act, the appropriate length of a class “session,” is also still unsettled.
The following paragraphs set out the suggested procedures for meeting the requirements of the Act. If implementation would be pedagogically unsound or technologically impracticable, and thus make it impossible to conform in good faith to these suggested procedures; the reasons why should be documented by the instructor and approved by authorized administrative supervisor, who also retain copies of all documentation.
* * * * *
The Act applies to the online transmission of protected content both to and from students. This may occur formally, to deliver educational materials to the student; it may occur informally, when the student posts materials on a server in order to deliver an assignment back to the instructor.
3.9.1 General Requirements
The Act is especially rigorous in its regulation of materials that can be easily uploaded to websites, transmitted digitally, and just as easily downloaded, altered, or further transmitted. Copyright owners quite naturally see these possibilities as a dangerous threat.
Students must access each learning “session” within a prescribed time period. Typically they may not store the materials or review them later in the academic term. Faculty members deliver the materials in portions and under conditions that are analogous to conventional teaching settings.
3.9.2 Institutional Requirements
The Act imposes institutional requirements that Pima College easily meets: online transmissions may occur only under the auspices of an accredited non-profit educational institution; the institution must have in place a standard copyright policy; and the copyright policy must include informational materials regarding copyright and those materials must be in keeping with the relevant copyright laws.
3.9.3 Instructional and Technological Requirements
The Act also imposes duties and responsibilities on instructors and technical services support staff.
Instructors must make sure that all course materials transmitted are integral to the class session offered and are directly related “and of material assistance” to the teaching component of the course. The adjective “material” is a legal term, often difficult to define, and generally means “significant.” It is less than “essential” but, generally speaking, not by much.
The course material must provide notice to students that the materials may be subject to copyright protection. See Notice to Students and directions for its placement Section 4.11.
Instructors must also make sure that all copyrighted materials used in the course are legally obtained.
Technical services support staff must make sure that: (1) the transmission of the materials, and their content, must be made solely for students “officially enrolled” in the course for which the transmission is made.
Because technical services support staff must assure that the transmissions are limited strictly to students enrolled in the specific course, the system over which the materials are transmitted must be: (2.a) secure and password protected, and (2.b) exclusive, i.e., limited solely to the students registered for that specific class. Further, (3) the transmission cannot be broadcast for any other purposes whatsoever.
In addition, deployment of the online transmissions must include: (4) timing safeguards so that the materials are accessible only as long as the class session; and (5) safeguards preventing recipients from (5.a) retaining, backing up and/or storing the materials in accessible form outside the course program, and (5.b) from further disseminating the materials to others.
The College may not store or otherwise maintain copyrighted material on any of its systems or networks for a period longer than is reasonably necessary to teach the course.
As stated above technical services support staff must take all “reasonable” steps to insure enforcement of the preceding requirements. What is “reasonable” is still debated in the courts. So, too, is the notion of a “class session.” In general, a class session is the time during which the student is enrolled in the course.. On this score, common sense suggests that the system include a timing mechanism that prevents the student from indefinite access to course materials.
3.9.4 Works Excluded
The Act explicitly identifies a few categories of works that may not be transmitted online in the Distance Education setting. The most important category is for works that are commercially available educational materials. That is, if the protected work is commercially available, copies of it may not be transmitted online. The student must purchase the work from the copyright owner or an authorized retailer. The fair use exception to copyright infringement is not available to the instructor or the College as a defense against unauthorized transmission of commercially available educational materials.
College personnel should not attempt to digitize analog materials. While not strictly prohibited by the TEACH Act, the requirements for doing so are difficult to meet and practically speaking are not worth the effort except in rare cases.
3.9.5 Specific Course Materials
Permissible uses of copyrighted materials, allowed by the Act, include the following:
- Performance of complete non-dramatic literary or musical works, such as the reading of a poem or short story by the instructor. A performance of a copyrighted play may be transmitted so long as it is created directly or indirectly by the instructor who must supervise its creation and the instructor or College legally obtain the copyright to the play in the first place.
- Showing of films or videos is still restricted to limited portions. The law does not provide any guidance concerning what a “portion” should be. Consequently the instructor should apply the limitations suggested in Sections 1.5 and 2.4 for fair use bearing in mind, always, that if the so-called “portion” is small but is a core element of the protected work, it is too large for the copying to be legal.
- The Act also allows the transmission and display of other works in amounts comparable to materials used in face-to-face classroom settings as set out in other sections of this SPG.
- If an instructor wants to link to a work instead of transmitting it online, the instructor must first follow the guidelines in Section 3.8 for linking on the internet.
Copyright laws apply to computer software just as they do to other copyright- protected material. Most licensing agreements prohibit renting, leasing or lending original copies of software. A single-user program may not be installed on more than one computer without written permission from the copyright owner. Illegal copies of software may not be used on College equipment.
Because most software copying involves copying the entire computer program, rather than a portion of it, unauthorized copying will rarely be considered fair use.
However, a copy of a program may be made if such a copy is essential to use of the program (i.e. copying onto the hard disk of one machine), if the copy is made for archival purposes only and archival copies are destroyed once the original software is transferred or sold, or if rights to copy the software have been purchased and documentation of those rights is on file.
Some types of computer software have less stringent rules on copying. These include shareware, freeware and public domain software. Shareware may typically be downloaded and used for free during a specified trial period, after which continued use requires the purchase of a license. Freeware and public domain software are made available for use free of charge for an unlimited period of time, but in the case of freeware, the author retains the rights to distribute and develop the software, and to receive credit for its authorship. Unless a software program is clearly marked "shareware," "freeware" or "public domain," the user should assume that it is copyright-protected and that permission must be obtained to copy it.
Music downloads and online accessing have been the subject of expensive, hard fought lawsuits nationwide. College students love to download music. In most cases, their actions are illegal.
Although the College cannot control what students do on their personal computers, College personnel should take the lead in the classroom and across campus. Copyright laws apply to music just as they do to other copyright-protected material.
All copies of sheet music and sound recordings regardless of format – CDs, internet, etc. – must include the copyright notice appearing on the original copy.
3.11.1 Sheet Music
A music instructor may make copies of excerpts of sheet music or other printed works, provided that the excerpts do not constitute a “performable unit” such as a whole song, section, movement or aria. In no case can more than 10% of the whole work be copied and the number of copies may not exceed one copy per pupil.
Instructors may not copy sheet music to create anthologies or compilations used in class absent copyright permission to do so. Instructors may not copy from works intended to be “consumable” in the course of study or teaching such as workbooks, exercises, standardized tests and answer sheets, and like material.
Sheet music should never be used for a performance absent written permission to do so. See Resources, Section 4, for obtaining permission to use out-of-print and/or otherwise unavailable sheet music.
3.11.2 Sound Recordings (CDs, multimedia or any other forms of audio files.)
A single recording of a performance of copyright-protected material may be made for evaluation or rehearsal purposes. The College or instructor may keep a copy. In addition, a single copy of a sound recording owned by the College or an instructor may be made for the purpose of constructing aural exercises or examinations. The College or instructor may keep a copy.
Instructors may not copy sound recordings to create anthologies or compilations used in class absent copyright permission to do so.
An instructor should not link to a sound file on a web page without prior written permission unless the page is in the public domain and the sounds are royalty-free.
3.12 The Library
If the College library owns a copy of a work, the library may place that copy on reserve without obtaining copyright permission. If the library wishes to reproduce additional copies of that work and place them on reserve for students to review, in either paper or electronic format, the library must obtain copyright permission for library owned materials. Instructors are responsible for obtaining permission, if required, for placing non-library materials on reserve.
The library must display a copyright notice in any area where library users make requests for copies and in any area where users themselves make copies, such as copying centers.
3.12.2 Photocopying and Digital Reproduction in Libraries
It is permissible to photocopy copyright-protected works in a College library without obtaining permission from the copyright owner under the following circumstances. In each instance, the necessary copyright notices and credits must be included on the photocopy. Digital reproductions may be available only on the library computer system but must not be placed on any public network.
- Archival reproductions of unpublished works: Up to three reproductions of any unpublished work may be made for preservation or security or for deposit for research use in another library or archive.
- Replacement of lost, damaged or obsolete copies: The College’s library may make up to three reproductions, including digital reproductions, of a published work that is lost, stolen, damaged, deteriorating or stored in an obsolete format.
3.12.3 Photocopying by Students
Photocopying by students is subject to fair use analysis. A single photocopy of a portion of a copyright-protected work, such as a copy of an article from a scientific journal made for research, may be made without permission. The reproduction cannot be used other than for private study, scholarship and research.
The following constitute copyright infringement unless permission is granted, beforehand, to make the copies: (1) photocopying all the assignments from a book recommended for purchase by the instructor; (2) making multiple copies of articles or book chapters for distribution to classmates; and (3) copying material from consumable workbooks.
If the unauthorized copying is made at a library or other College facility, the College can be held liable for contributory copyright infringement. Consequently, personnel must make diligent efforts to insure that students adhere to proper copying requirements.
The library must display a copyright notice at the place library users make their photocopies.
3.12.4 Inter-library Loans
The College library may participate in inter-library loans without obtaining permission provided that the "aggregate quantities" of articles or items received by the patron do not substitute for a periodical subscription or purchase of a work. See Section 4, Resources, on what constitutes "aggregate quantities."
If the articles or items being copied have been obtained through a digital license, Library Technical Services staff must check the license to see under what terms and conditions, if any, inter-library loan is permitted.
3.13 Copyright and Foreign Works
The United States is a member of the leading international copyright treaty, the Berne Convention. Consequently when the College uses copyright-protected material from another country, the protections provided to works by U.S. copyright law automatically apply to the use of that work as well (assuming the use takes place in the U.S.).
3.14 Special Copyright Provisions for Persons Covered by the Americans with Disabilities Act
Under the Americans with Disabilities Act (ADA) and an Office of Civil Rights settlement agreement, compliance with copyright law requires post-secondary education institutions to "effectively communicate" with individuals with disabilities, regardless of whether the communication is via media, print or the internet. All communication (i.e. audio, video, text, web-based media) at the College must be as effective and accessible for people with disabilities as it is for those without disabilities. See also Section 508 of the Rehabilitation Act, 29 U.S.C. § 794d, to which the ADA is intimately related. Alternate formats include, but are not limited to, captions, Braille, audio cassette, large print, computer diskette, CD-ROM, and e-text.
4.1 College Copyright Committee
The College Copyright Committee is appointed by the Chancellor and is charged with making recommendations to the Chancellor regarding copyright issues and laws pertaining to the College.
A Campus President serves as Chair and a faculty member serves as Co-Chair of the College Copyright Committee. Other Committee members include faculty, staff (such as technical services support staff), and administrators.
4.2 The College Library
Resources on key aspects of copyright law are available on the College library web page.
4.3 Creative Commons License
Some copyright-protected material may be available via a Creative Commons license. Generally, Creative Commons owners give their work to the public but require a license, usually, but not always, royalty-free. Most licenses require proper acknowledgements and attributions. Most also usually prohibit modification of the original work. Some licenses permit the use of excerpts of the work.
4.4 U.S. Copyright Office
The website www.copyright.gov contains many useful materials, including:
Circular 21, Reproduction of Copyrighted Works by Educators and Librarians, rev. 11-2009. This publication offers useful guidelines. Caution is warranted, however, because not all of the guidelines have survived court challenge. Consequently, even though you are reading an official government publication, not all you read is carved in law.
4.5 American Library Association
The website www.ala.org offers useful information, especially for librarians and technology officials.
4.6 Conference on Fair Use (CONFU)
College guidelines, in part, are based upon the 1998 Conference on Fair Use (CONFU) report to Congress. The ad hoc committee that composed those guidelines indicated that the guidelines were meant to be a minimum that constituted educational fair use.
The guidelines have not been passed into law and represent suggested conditions under which educators may use copyright-protected material without getting consent of the author or creator of the work.
With respect to inter-library loans, the College follows the CONFU guidelines in defining “aggregate quantities.” Specifically, requesting and receiving more than five articles from a single periodical within a calendar year or a total of six or more copies of articles published within five years prior to the date of the latest request would be too many under CONFU.
4.7 Obtaining Copyright Permission
There are two primary options for obtaining permission to use copyright-protected material: (1) contact the copyright holder directly, or (2) contact the Copyright Clearance Center (www.copyright.com).
Permission to use copyright-protected material, when required, must be obtained prior to using the material. Always obtain permission in writing (which can be in an e-mail). College personnel must provide copies to the Executive Administrator and the Executive Vice Chancellor for Finance and Administration.
The time to obtain permission may vary and, where possible, it is recommended that the permission procedure be commenced at least six months before the material is to be used. If quicker permission is needed, the copyright owner should be informed of this fact so that he or she has the option of responding more quickly.
Begin your search for the copyright owner by directly contacting the author or publisher. Reference librarians can be helpful in finding names and addresses.
The quest for the copyright owner can be simplified by making a telephone call to the author, publisher, and owner and directly asking them about ownership and rights of use.
The copyright holder or its agent will usually require the following information in order to provide permission:
- Title of the material
- Creator/author of the material
- Publisher of the material
- Description of material
- ISBN or ISSN, if applicable
- Date of publication, if applicable
- Whether the user is a non-profit institution or an employee of a non-profit institution
- Purpose for which you wish to reproduce the item (research, commercial, non-profit educational, for-profit educational, etc.)
- How the material is to be reproduced (e.g., photocopied, digitized)
- Where the reproduced material will be used or will appear and for how long
See sample letter at the end of this SPG.
If permission is denied, the material must not be reproduced.
Not receiving an answer to a copyright request is not the same as receiving permission. Silence should not be deemed permission.
4.8 Royalty Fees
Prior to reproducing a copyright-protected work which requires royalty fees to be paid to the copyright holder, the employee must receive the funding permission from his or her administrative supervisor using funds from the employee’s department.
4.9 Licenses and Contractual Agreements
The College regularly purchases licenses and agreements that include permission to use copyright-protected material in an educational context – for example, a link on a faculty member’s course page to a full-text journal article may be permissible if the College has a license which allows such access. For more information on obtaining licenses, check with the Executive Administrator.
4.10 Sheet Music
If copyrighted sheet music is out of print (or otherwise not available for sale), an educator may request permission to reproduce it from the music publisher. An instructor may use the “Library Requisition for Out-of-Print Copyrighted Music” available from the Music Publishers’ Association.
The following Notice to Students should be placed: 1) on the first page of the CMS that students see when they log in; 2) prominently in the course syllabus; and 3) prominently in the course reading list if it is a separate document from the syllabus.
NOTICE TO STUDENTS:
USING COPYRIGHTED MATERIALS
Most of the instructional materials you will use in this course are copyright protected. Unless you buy the materials, you cannot download or copy them without the written permission of your instructor or the publisher of the materials.
That includes websites you visit when completing assigned course work. Websites usually contain copyright protected material. Your visit to a website cannot include unauthorized downloading or copying, or attempts to bypass any security on the site or any payment system on the site.
Please understand that there are serious penalties for the unauthorized copying or downloading of copyright protected materials. If you aren’t sure whether you can copy or download materials, please ask your instructor or a librarian.
Pima Community College
[your campus address]
[your email address]
[your contact phone number]
Via email and regular first class mail
Owner’s contact information
Re: Author and Title of Work
Year of publication (volume/month/day if periodical)
I am an instructor in the Department of __________________ at Pima Community College (PCC) in Tucson, Arizona. PCC is a public not-for-profit community college.
I write to request your permission to [title of work] ____________________ for use in the class I will be teaching in the ___________ semester of academic year 201___ - 201___. The course title is _______________________ and the subject of the class is _______________________________.
Attached is a more detailed description of the work and the circumstances under which I would like to use it.
Thank you for your prompt attention to this request.
[your printed name]
cc, with enclosure:
_______________, Executive Vice Chancellor for Finance and Administration
_______________, Executive Administrator
_______________, Your Department Head
[The following information should be on a separate sheet of paper. Provide all information; repetition matters]
- Title of the material
- Creator/author of the material
- Publisher of the material
- Description of material
- ISBN or ISSN, if applicable
- Date of publication, if applicable
- A statement that the College is a public non-profit institution and you are an employee of the College.
- A statement that the work will be used in a non-profit educational setting in __________________ [name of class to be taught __________________ [date it will be taught]
- A description of how the material is to be reproduced (e.g., photocopied, digitized)
- A statement that the reproduced material will be used at a class taught on the ___________ campus of PCC located in Tucson, Arizona, or will appear on the College’s secure, password-protected Course Management System (CMS).
- A representation that the reproduced material, if uploaded to the College’s secure, password-protected CMS, will be posted there on about _______________, 201__.
- A representation that if uploaded to the College’s secure, password-protected CMS, the work will be removed from the site on about _______________, 201__.