COPYRIGHT
GUIDELINES
Featured
Site:
Intellectual
Property and Copyright, produced by the USI Copyright
and Intellectual Property Committee. This site includes sample contracts,
articles and links to other web sites.
Copyright
law protects printed works, photographs, audio and video productions,
art, music, software, and most of what you find in the library and
on the Internet. The Digital Millennium Copyright Act (DMCA) of 1998
amends the Copyright Act (1976), strengthening rights for copyright
owners. The law grants broad rights to copyright owners, reserving
to them the right to make and distribute copies. Thus librarians and
educators are often in conflict with these rights in the normal course
of our work. Whenever we copy, scan or download protected material
to make it available to others electronically, copyright issues arise.
The primary
“exception” to these rights is “fair use.”
While the DMCA is intended to be flexible, it lags behind changing
technology, notably Internet courses, and does not clearly distinguish
between infringement and fair use. Fair use does not cover as many
items as you might expect, and its definition depends on evaluating
the intended use by the following four factors:
- The
purpose of the use, including non-profit educational purposes (Fair
use favors “transformative” use over mere reproduction;
e.g., a court determined that a “thumbnail” image
of a photograph constituted “transformative” use due
to the difference of that use from the original purpose.)
- The
nature of the copyrighted work (courts have tended to favor fair
use of nonfiction over fiction, but there are many qualifiers).
- The
amount of copying (the more extensive the copying, the less likely
it is to be “fair use”; in one case as little as 5%
to 25% of a full book was deemed excessive).
- The
effect of copying on the potential market for the original work
(Course packs compete with potential sales.)
To use
material protected by copyright law, determine whether this constitutes
fair use. If it does not, you must seek permission for that use from
the copyright holder. For example, posting another’s work on
your Web site without permission or attribution or copying an entire
work or a substantial part of a copyrighted item for Internet access,
without permission of the copyright holder, infringes copyright law,
with potential legal penalties. Instructors must be mindful of this
when selecting materials to post on course Web sites.
Single
copying of, for example, a portion of a book, an article from a journal,
or a poem or short story may be made for scholarly research or use
in teaching. Multiple copies may be made for a course only if these
do not exceed more than one copy per student, if copying meets the
brevity, spontaneity, and cumulative effect tests, and if each
copy includes a notice of copyright. In addition, there should be
no charge beyond the cost of photocopying.
Brevity
refers to the percentage of a larger work copied; an article in a
journal or a chapter in a book may be acceptable whereas the total
journal or book is not. Spontaneity refers to the decision
to use an item in class being near to the time of use; that is, there
would not be time to receive permission between reading an article
in a Sunday paper and using it in a Tuesday class. Cumulative effect
refers to limiting use to a single course, the amount (percentage)
of a total work that is used (a relatively small percentage of an
author or collective work), and limiting the instances of copying
within a course.
To better
understand these issues, see the “Crash
Course in Copyright” and view the quick start
guide on "Copyright
and Fair Use in Higher Education."
The Ball
State Web site is also helpful; see “Distance
Education Complying with The TEACH ACT”
Copyright Basics provided by the
United States Copyright Office. The
United States Copyright Office
also provides links to copyright records, publications on the subject,
legislation and much more. For more information on patents and trademarks,
see U.S.
Patent and Trademark Office.
See also
Crews, Kenneth D. Copyright Essentials for Librarians and Educators.
ALA, 2000. (Library Reserve, call # KF 2995 .C74 2000). Find this
book’s “Fair
Use Checklist,” along with other useful information.
Material
to be placed on reserve in the Library must include a notice of copyright.
If only one copy is placed on reserve, an entire article, book chapter,
or poem may be used. If multiple copies are placed on reserve, according
to Crews, "the amount of material should be reasonable in relation
to the total amount of material assigned for one term of a course
taking into account the nature of the course, its subject matter and
level"; "the number of copies should be reasonable in light of the
number of students enrolled, the difficulty and timing of assignments,
and the number of other courses which may assign the same material";
and "the effect of photocopying the material should not be detrimental
to the market for the work." [Kenneth D. Crews, Copyright, Fair
Use, and the Challenge for Universities. University of Chicago
Press, 1993, p. 205.]
