Copyright Policy & Guidelines for Using Copyrighted Materials
Virginia Western Community College expects all members of the faculty and staff to comply with United States Copyright Law. VWCC believes faculty and staff can best serve the College and protect their own interests by acquiring a basic knowledge of current United States Copyright Law and Virginia Community College System (VCCS) and VWCC policy. These guidelines cover most academic uses of copyrighted works.
VWCC Faculty and Staff Responsibility for Legal Use of Copyrighted Materials and Liability for Copyright Infringement
- Responsibility for Legal Use of Copyrighted Materials. All VWCC faculty and staff are responsible for not exceeding legal use of copyrighted materials. In this respect, faculty and staff members shall follow fair use doctrine, as described in this document, when using copyrighted materials, shall read and abide by all license agreements between Virginia Western Community College and publishers or producers for specific items, and shall request permission to use copyrighted materials when necessary.
- Faculty and Staff Liability for Copyright Infringement. Federal copyright law provides stiff penalties for copyright infringement, including fines up to $150,000. Some publishers and software producers aggressively pursue copyright violators by offering rewards to informers who report unauthorized duplication. In the event the College is sued for copyright violations, the person actually infringing copyright will be held liable.
- Licenses and Contracts. As College contract officer, the Vice President of Financial and Administrative Services is responsible for signing all licenses and contracts for the use of copyrighted material.
The Vice President of Financial and Administrative Services maintains central files containing copyright agreements between faculty and staff and the College.
Information and Educational Technologies (IET) maintains software registration and license files for college-wide applications, such as the Microsoft Campus License Agreement, Adobe Connect, Symantec Anti-Virus software, and many others. IET typically approves technology-related hardware and software purchases, but the individual employee or division/department that actually procures the software maintains the software registration and license information. If there seems to be enough demand for a particular product, IET will agree to obtain the software for college-wide use and manage the distribution of licenses.
- Web Sites. If copyright violations on the College web site are reported to Information and Educational Technologies (IET), the web page(s) containing the copyrighted material will be shut down immediately. IET will inform the employee responsible for the web page(s), his/her supervisor, and the appropriate Vice President of the report and the action taken.
- Blackboard. Faculty members posting copyrighted material to course management websites are responsible for following TEACH ACT provisions or fair use guidelines, acquiring necessary permissions, and maintaining a record of those permissions.
- Copyright Warning Notices. Administrators responsible for microcomputer laboratories or for any kind of copying machines available to the public must post copyright warning notices on all reproducing equipment, including but not limited to, photocopiers, printers, microform printers, computers, VCRs, tape recorders, and scanners. The notice should state:
Notice Warning Concerning Copyright Restrictions
The copyright law of the United States (title 17, United States Code) governs the making of photocopies or other reproductions of copyrighted material. The person using this equipment is liable for any infringement.”
The Library shall send a copy of VWCC’s warning of copyright infringement liability with each copy of software. Libraries must use specific wording described below in the library section.
- Music Licenses. The Vice President of Administrative and Financial Services monitors VWCC’s agreements with the music licensors ASCAP, BMI, and SESAC.
- Printing Services. The Printing Services request form requires the requester to declare whether or not the material to be copied is copyrighted. If the material is copyrighted, the requester must provide a copy of the written permission to use the copyrighted material given by the copyright holder.
United States copyright law protects certain creative works from the moment they are produced in tangible form; creators are not required to formally register their works with the U.S. Copyright Office to be protected. Printed materials, such as books, journals, and printed music, are protected, as well as sound recordings, films, videocassettes, art works, computer software, choreography, architecture, and text and photographs displayed on web sites.
The Copyright Act of 1976 grants copyright owners exclusive rights to reproduce, distribute, adapt, perform, and display their works. Reproduction, distribution, and display are easy to understand. The right to adapt a work means the right to make derivative works, such as translations, instructor's manuals, or new arrangements of musical compositions. The right to perform a work includes reading aloud, reciting, presenting a play, and dancing a work.
Legislators have defined some exceptions to copyright owners’ exclusive rights under the "fair use" doctrine described below. Such exceptions aside, anyone publishing, reproducing, performing, adapting, or displaying all or part of a copyrighted work must obtain permission from the copyright owner; otherwise, such use infringes the copyright.
The Digital Millennium Copyright Act of 1998 (DMCA) attempts to define copyright in the online world, but severely restricts educators' digital fair use privileges. When the law was passed, Congress asked the Copyright Office to conduct a study and write a report on distance education in the digital age. The report, which recommended allowing educators to extend fair use principles to digital media, was published in spring of 1999. Congress decided to watch developments for a few years before considering amendments to the law.
Virginia signed UCITA, the Uniform Computer Information Transactions Act, into law in the summer of 2001. UCITA, sometimes called the shrink-wrap law, is contract law designed to standardize the law regarding the licensing of software and all other forms of digital information. The law is not friendly to educators or other consumers because it makes many contracts non-negotiable.
The Technology, Education, and Copyright Harmonization (TEACH) Act of 2002 expanded educators' rights to transmit copyrighted works in digital distance education so long as strict conditions are met, but rules under TEACH are more stringent than in the familiar face-to-face teaching guidelines.
The Fair Use Doctrine
The 1976 Copyright Act included a four-factor test to determine fair use of a copyrighted work. These four factors, all of which must be considered, are:
- Purpose and character of use,
- Nature of the copyrighted work,
- Amount and substantiality of copying, and
- Effect of the use of the work on market value of the work
Non-profit educational uses are preferred in fair use determinations. Use of copyrighted published material based on fact rather than fiction is more likely to be allowable under the fair use doctrine. A small amount of the whole is preferred. However, if the section to be copied is central or critical to the work as a whole, it is considered substantial no matter how few words or pages are included. In this case, copying of such a section would violate fair use. A record of the application of the four-factor test should be maintained for all instances in which it is used. An example of a Fair Use checklist and an explanation of its use is available from the Copyright Advisory Office at Columbia University, http://copyright.columbia.edu/copyright/fair-use/fair-use-checklist/. Attachment 6 is an adapted form of this checklist.
Difficulty in applying the four-factor test for fair use mentioned above gave rise to a number of private groups developing additional guidelines in hopes of clarifying the legal requirements. Please note that the guidelines included in Attachment 7 are in fact guidelines, not codified law. A planned use of copyrighted materials may not fall within the guidelines, but still be permitted under the Fair Use Doctrine.
Copyright Act Provisions for Libraries
Section 108 of the Copyright Act adds provisions for libraries:
- Unpublished Works. Libraries may copy unpublished works of any sort solely for the purpose of preservation and security in facsimile form but not in machine-readable form.
- Out-of-Print Works. Libraries may copy in facsimile form any sort of out-of-print published work to replace a damaged, lost, or stolen copy after trying reasonably but unsuccessfully to replace the work at a fair price from the trade.
- Copyright Notices. Libraries shall post a copyright warning notice on every copying machine. The following wording is mandatory, even for machines the patrons will use personally. The warning notice is included as a separate page (see Attachment 5) so that photocopies can be made and posted wherever necessary.
WARNING CONCERNING COPYRIGHT RESTRICTIONS
The copyright law of the United States (Title 17, United States Code) governs the making of photocopies or other reproductions of copyrighted material.
Under certain conditions specified in the law, libraries and archives are authorized to furnish a photocopy or other reproduction. One of these specific conditions is that the photocopy or reproduction is not to be "used for any purpose other than private study, scholarship, or research." If a user makes a request for, or later uses, a photocopy or reproduction for purposes in excess of "fair use," that user may be liable for copyright infringement.
This institution reserves the right to refuse to accept a copying order if, in its judgment, fulfillment of the order would involve violation of copyright law.
Use of Copyrighted Music
- Reproduction of Music. The four-factor test should be applied to determine fair use of copyrighted music. Guidelines for educational uses of music are included in Attachment 7.
- Derivative Works. While the copyright owner retains the exclusive right to make arrangements of a piece of music, educators are allowed to edit or simplify printed copies of purchased music. Educators are not allowed to change the fundamental character of the music or to change or add lyrics.
- Music Licenses. The College contracts with and pays annual fees to three music licensing organizations, BMI (Broadcast Music Inc.), ASCAP (American Society of Composers, Authors and Publishers) and SESAC (Society of European Stage Authors and Composers). The annual fees cover College music performances, the use of music in theatrical productions, and the use of cable and Internet technology for the broadcasting of music in an electronic format where the College specifically has an educational or community outreach intent. For additional information on music licenses and what may or may not be covered, contact the Vice President of Financial and Administrative Services.
According to U.S. Law, "To 'perform' a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other
audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible." School performances are generally considered public performances.
- Dramatic Works. For plays and musicals, Section 110 of the law provides four criteria to define the only exception to copyright infringement for public performance of dramatic works:
(1) When a performance takes place in the course of a face-to-face
teaching activity - i.e., instructional performances and displays that are not transmitted; and (2) it is in a nonprofit educational institution; and (3) it is conducted in a classroom or similar place (such as a library) devoted to instruction; and (4) in the case of an audiovisual work, when the copy (e.g., film or videotape) is lawfully made.
No public performance of copyrighted dramatic works (including the showing of films, theatrical productions, etc.) is protected by Fair Use if the performance does not meet the four criteria for exception as defined in Section 110 of the law.
- Non-dramatic Works. The exemption quoted above for dramatic works also applies to performances of non-dramatic literary or musical works. In addition, performances of non-dramatic works may be (a) transmitted to other classrooms and to handicapped persons who are unable to be present in classrooms if the
performance and transmission are part of the instructional program, or (b) open to the public if the performance is not broadcast, the performers are not compensated, there is no admission charge, any proceeds go to educational purposes, and the copyright owner does not object in writing at least seven days before the performance.
- Audiovisual Works. The rules are the same as those governing any performance.
- Videotapes and Films
- Classroom Use. Classes with teachers in attendance may view videotapes for instructional purposes, but they must be shown in a face-to-face setting, not transmitted, and the videos must clearly relate to the class.
- Entertainment. Videotapes shown for entertainment purposes are considered public performances. Before showing a film or tape for entertainment, make sure the College purchased public performance rights.
- Library Use. Individuals and very small groups may be permitted to view a videotape in a study carrel or viewing room.
- Off-Air Recording (Television and Radio). At this time, Information and Educational Technologies does not provide off-air
recording or copying services. The four-factor test should be applied to determine fair use of off-air recordings. Faculty and students recording off-air programs for showing or playing in class should read and familiarize themselves with the guidelines included in Attachment 7.
- Photocopying. The four-factor test should be applied to determine fair use of images. The guidelines for copying for classroom use (Attachment 7) include references to images.
- Slides. Purchase slides when possible and do not make duplicates. When making slides for use in the classroom because they are not available for sale, make only one copy of a picture, and do not make copies of every picture in a book. Do not digitize slides.
- Clip Art. Read the license before using clip art and abide by any restrictions, such as "do not digitize."
- Copyright Notice. Always include copyright information with each image used.
Students and faculty can incorporate portions of lawfully acquired copyrighted works into their projects so long as a student’s project is for a specific course and a teacher’s project will be a teaching tool in support of curriculum-based instructional activities. Fair Use Guidelines for Educational Multimedia are included in Attachment 7.
The TEACH Act
The TEACH Act expanded educators' rights to transmit copyrighted works in digital distance education so long as strict conditions are met.
- VWCC is a non-profit educational institution.
- VWCC is responsible for meeting some of the TEACH conditions such as limiting reception to enrolled students, taking technological measures to control access and to prevent further
dissemination, and limiting the time any distance education class will be retained on the system or network.
- VWCC and faculty are responsible for making copyright information available to students who will be viewing the copyrighted materials.
- Permissible Use of Legally Acquired Materials:
- Transmitting complete performances of non-dramatic literary works.
- Transmitting complete performances of non-dramatic musical works.
- Transmitting limited portions of other works. See guidelines for off-air recordings and multimedia for allowable portions.
- Not Permissible:
- Transmitting anything that is produced and sold for performance or
display as part of a digitally transmitted mediated instructional activity unless VWCC purchases a license that allows us to do so.
- Transmitting textbooks or course packs.
- Converting anything to digital format that already is available – usually for sale – in digital format.
- Converting to digital format, a greater portion of a copyrighted work than educator will use in a course.
- Amount displayed must be the same as for a live class.
- Content must be directly related to a class session and part of systematic mediated instructional activities.
- Content cannot be supplemental material.
There may be instances in which the planned use of copyrighted material does not fall within the scope of the TEACH Act, but may nonetheless be permitted under the criteria of fair use. When using copyrighted materials based on the Doctrine of Fair Use, instructors should remember to consider and document the evaluation of all four fair use factors including effect on market value. Use should be spontaneous and limited to one time.
- The fair use doctrine does not apply to microcomputer software. Most software is licensed rather than sold outright and license terms vary widely from one package to another. The Uniform Computer Information Transactions (UCITA) took effect July 1, 2001 in Virginia. Shrink-wrap and click-on licenses are enforceable
by law, even if the person clicking does not have institutional authority to agree to a license.
- VWCC faculty and staff shall read, file, and abide by all license agreements for software installed in personal computers assigned to them. VWCC equipment shall not be used to make illegal copies of software. VWCC prohibits the use of illegally copied software in its offices or laboratories.
- VWCC faculty and staff shall read and abide by the College’s Computer Ethics Policy statement.
- Supervisors of student labs shall post copyright warnings and monitor student software use. Students who make illegal copies of software while using College facilities will be banned from all VWCC microcomputer laboratories. Other disciplinary action may also be taken.
- Copyright Law specifies users may make a backup or archival copy of the software in case of a later problem with the software. Backup software copies may be used only if the original copy fails.
- If a user buys a new version of software outright (rather than an upgrade) and does not plan to use the older version of the software, he/she should destroy the old version of the software, including manuals, when the new software is installed.
- Everything posted on the internet is open to wide public scrutiny. If a piece of text or graphics or recorded music to be included on a web site is copyrighted, be certain to get permission before posting it, and be sure to include copyright information with the piece.
- Unless there is a clear statement on a web site that text and graphics are public domain and free for all to use, assume everything is copyrighted and that users do not have the right to copy, reproduce, or modify it without permission.
- Linking to other sites from a web page is permitted, as long as the originating web page identifies the link-to sites clearly, and the user easily can tell the web page apart from the link-to site.
- Faculty can post material on Blackboard if: (1) the instructor is the copyright owner, (2) the instructor has permission from the copyright owner, (3) the material is in the public domain, or (4) the posting complies with the provisions of the TEACH Act, or (5) use is "fair use" under the Doctrine of Fair Use.
- When possible, instructors should link to copyrighted materials rather than posting them.
- When relying on the Doctrine of Fair Use to post copyrighted material on Blackboard without obtaining permission from the copyright holder, instructors should remember to consider and document the evaluation of all four fair use factors.
- When using copyrighted materials, be sure to credit the copyright owner, include a copyright notice, and instruct students that they may print out only one copy for their personal use.
Procedures for Obtaining Copyright Clearance
Faculty and staff needing copyright permission must write for permission to the copyright holder. Request all permissions for a specific project at the same time. Do not ask for blanket permission, but provide the following detailed information:
- Title, author, and/or editor, and edition of materials to be used/duplicated
- Exact material to be used, including amount, page numbers, chapters, and, if possible, a photocopy of the material
- Number of copies to be made
- Intended use to be made of duplicated materials, along with size and type of audience
- Form of distribution, such as classroom handout, newsletter, web page
- Whether copied material will be for sale or free
- Duplication method (photocopy, offset, typeset, video, slides, audiocassettes, computer-digitizing, etc.)
Include a self-addressed stamped envelope with the request and allow sufficient lead time prior to actual need. After receiving permission to use the material, the requester should retain the permission document in his/her own file or in the division's file until the allowed time elapses.
For print materials, such as articles or book chapters, the Copyright Clearance Center, http://www.copyright.com/, provides an alternative to contacting the copyright holder directly.
- Sample Permission Letters:
Sample permission letters and forms are reproduced in Attachments 1-4 for this section. The information in these attachments may be duplicated and modified as necessary in seeking proper copyright permission.
- Printing Services/Duplicating Requirements:
Copyrighted material will be produced only in conformity with congressional standards for educational fair use or with written documentation showing that permission has been granted by the copyright holder(s).
For a sample generic permission letter and more information and training on copyright, fair use, and the TEACH Act see Attachment 8.
Acknowledgement: The basic content of this document was created by Northern Virginia Community College. VWCC was granted permission to modify the document to reflect VWCC policies, procedures, and practices.