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Copyright and Fair Use: CUNE Copyright Policy

Can I reuse something made by someone else?

CUNE Copyright Compliance Policy

 

The purpose of the CUNE Copyright Compliance Policy is to provide a summary of U.S. copyright law as it relates to the use of copyright-protected works in the classroom, library and elsewhere at CUNE, and to provide guidelines and procedures for obtaining copyright permission to use these works.

U.S. copyright law contains many gray areas, and the goal of this policy is to provide CUNE administrators, Faculty/Staff, librarians, students, student workers, and others with a standard approach for addressing complex copyright issues. This policy covers classroom issues such as photocopying, online and distance education, and course packs. It also covers library uses for print and electronic reserves and interlibrary loans (ILL).

This policy provides practical advice and procedures on copyright-related matters; however, it is not a substitute for legal advice, and proper legal advice should be obtained when necessary. CUNE’s Copyright Officer, the Director of Library Services, may be able to assist you with any questions about copyright issues. The Copyright Officer may be reached at (402) 643-7358 or via e-mail at copyright@cune.edu.

What is Copyright?

Copyright is an area of law that provides creators and distributors of creative works with an incentive to share their works by granting them the right to be compensated when others use those works in certain ways. Specific rights are granted to the creators of creative works in the U.S. Copyright Act (title 17, U.S. Code). If you are not a copyright holder for a particular work, as determined by the law, you must ordinarily obtain copyright permission prior to reusing or reproducing that work. However, there are some specific exceptions in the Copyright Act for certain academic uses, and permission is never required for certain other actions, such as reading or borrowing original literary works or photographs from a library collection.

What is Protected by Copyright?

The rights granted by the Copyright Act are intended to benefit "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 that you may come across—including books, magazines, journals, newsletters, maps, charts, photographs, graphic materials, and other printed materials; unpublished materials, such as analysts' and consultants' reports; 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. Among the exclusive rights granted to those "authors" are the 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 and integrity for "authors" of certain works of visual art. Copyright law does not protect ideas, data or facts.

In the U.S., 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. For more information on copyright duration, visit https://www.copyright.gov/.

Fair Use

A provision for fair use is found in the Copyright Act at Section 107. Under the fair use provision, a reproduction of someone else's copyright-protected work is likely to be considered fair if it is used for one of the following purposes: criticism, comment, news reporting, teaching, scholarship and research. If the reproduction is for one of these purposes, a determination as to whether the reproduction is fair use must be made based upon four (4) factors:

1.            The purpose and character of use (principally, whether for commercial or nonprofit educational use)

2.            The nature of the copyright-protected work

3.            The amount and substantiality of the portion used

4.            The effect of the use upon the potential market for, or value of, the copyright-protected work

Fair use is an ambiguous concept. The law does not state exactly what uses of a copyrighted work will be considered fair uses which do not require obtaining permission. As such, individuals who are not lawyers may often need to be interpreters of the law in everyday circumstances, and answers as to how much reproduction may be considered fair use often remain unclear. Ultimately, each potential case of fair use must be evaluated on its own merits.

To avoid confusion and minimize the risk of copyright infringement, CUNE 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
  • Reproduction of material for classroom use where the reproduction is unexpected and spontaneous – for example, where an article in the morning's paper is directly relevant to that day's class topic. This would generally cover one-time use in only one semester
  • Use of short portions of a work to create a parody
  • A summary or review of an address or article, which may include quotations of short passages of the copyright-protected work

If your use does not meet the above criteria and the work is protected by copyright, you probably need to obtain permission from the copyright holder or its agent to use the work.

Types of Use

Classroom Handouts

If the handout is a new work for which you could not reasonably be expected to obtain permission in a timely manner and the decision to use the work was spontaneous, you 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, you must obtain copyright permission to use the work.

Course Packs

All articles, chapters and other individual works in any print or electronic course pack require copyright permission. Copyright permission for course packs is usually granted by the academic period (e.g.: semester, quarter, etc.). To reuse a course pack in subsequent academic periods, you need to 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.

When ordering course packs it is important to clarify who will obtain permission for the course pack–the copy center, the Faculty member or a member of the administrative Staff. Deferring responsibility for copyright permission will not provide you protection against a claim of copyright infringement.

Reserves

If the CUNE library owns a copy of a publication, the library may place that copy on reserve without obtaining copyright permission. If the library wishes to reproduce additional copies of a work and place them on reserve for students to review, in either paper or electronic format, the library must obtain copyright permission.

Photocopying in the Library

It is permissible to photocopy copyright-protected works in the CUNE library without obtaining permission from the copyright owner, under the following circumstances:

  • Library user requests for articles and short excerpts. At the request of a library user or another library on behalf of a library user, the CUNE library may make one reproduction of an article from a periodical or a small part of any other work. The reproduction must become the property of the library user, and the library must have no reason to believe that the reproduction will be used for purposes other than private study, scholarship and research. As recommended by Section 108 of the Copyright Act, the library must display the register's notice at the place library users make their reproduction requests to the library.
  • Archival reproductions of unpublished works. Up to three (3) reproductions of any unpublished work may be made for preservation or security or for deposit for research use in another library or archive. This may be a photocopy or digital reproduction. If it is a digital reproduction, the reproduction may not be made available to the public outside the library or archive premises. Prior to receiving any of the three (3) reproductions permitted under this provision from another library or archive, the CUNE library or archive must make a reasonable effort to purchase a new replacement at a fair price. The reproducing library or archive must also own the work in its collection.
  • Replacement of lost, damaged or obsolete copies. The CUNE library may make up to three (3) reproductions, including digital reproductions, of a published work that is lost, stolen, damaged, deteriorating or stored in an obsolete format. Any digital reproductions must be kept within the confines of the library (that is, available on its computer but not placed on a public network.)
  • Library user requests for entire works. One (1) reproduction of an entire book or periodical may be made by your library at a library user's request, or by another library on behalf of a library user upon certain conditions being met. These conditions include the library determining after reasonable investigation that an authorized reproduction cannot be obtained at a reasonable price. Once made, the reproduction must become the property of the library user. The library must have no reason to believe that the reproduction will be used by the user for purposes other than private study, scholarship and research, and the library must display the register's notice at the place library users make their reproduction requests to the library.

Photocopying by Students

Photocopying by students is subject to a fair use analysis as well. 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. Photocopying all the assignments from a book recommended for purchase by the instructor, making multiple copies of articles or book chapters for distribution to classmates, or copying material from consumable workbooks, all require permission.

Interlibrary Loans

The CUNE library may participate in interlibrary loans (ILL) 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. CUNE follows the National Commission on New Technological Uses of Copyright Works (CONTU) guidelines (from the Library of Congress) for defining "aggregate quantities." The CONTU guidelines state that requesting and receiving more than five (5) articles from a single periodical within a calendar year or a total of six (6) or more copies of articles published within five (5) years prior to the date of request would be too many under CONTU.

If the articles or items being copied have been obtained through a digital license, you must check the license to see under what terms and conditions, if any, interlibrary loan is permitted.

Distance Education and Course Management Systems

In 2002, the Technology, Education and Copyright Harmonization (TEACH) Act became law and expanded the latitude universities have for the performance and display of copyright- protected materials in a distance education environment, including through the use of Course Management Systems (CMS).

The copyright requirements for TEACH and CMS postings are similar to those of classroom handouts, but extend the traditional rules for those handouts to the digital transmission of materials to distance education students. If the use is spontaneous and will not be repeated, copyright permission is not required; however, the content may not remain posted for extended periods of time. If the use is planned, repeated or involves works that have existed long enough that one could reasonably expect to receive a response to a request for copyright permission, you must obtain copyright permission.

Copyright and Foreign Works

The U.S. is a member of the leading international copyright treaty, the Berne Convention. As such, when CUNE uses a copyright-protected work 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.).

How to Obtain Copyright Permission

Permission to use copyright-protected materials, when required, should be obtained prior to using those materials. It is best to obtain permission in writing (by letter or email) and to ensure that the CUNE Copyright Officer has a copy of each permission notice, direct emails to copyright@cune.edu.

The time to obtain permission may vary and, where possible, it is recommended to start the permissions procedure at least six (6) months prior to the time that you wish to use the materials. If you need a quicker permission, let the copyright owner know this and he/she may be able to get back to you more quickly.

Fact Finding Questions

Once you have identified the materials you want to use and determined that copyright permission is required, you must locate the copyright holder. If the copyright holder is not listed on the work, locating the appropriate person or entity to grant permission may take some investigative and creative work.

The Copyright Office of the Library of Congress (www.loc.gov) may be of assistance in locating a copyright owner if the work is registered. Note, however, that copyright is automatically granted to all works upon their being written down; registration with the Copyright Office is not required.

The primary method for obtaining permission to use a work is to contact the copyright holder directly. CUNE’s copyright officer can help with this process. Any time permission is obtained for a specific use of a copyrighted work, give a copy of that written permission (letter or email) to the campus Copyright Officer for institutional files.

Information in a Permission Request

The copyright holder or its agent will require the following information in order to provide you with 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
  • Purpose for which you wish to reproduce the item (research, commercial, 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

Reporting Suspect Infringements

If you suspect that anyone at CUNE, including a student, is using any copyright-protected material without the permission of the copyright holder, immediately report this to the Director of Library Services, CUNE’s Copyright Officer, at (402) 643-7358 or copyright@cune.edu.

Review and Interpretation of Policy

This Policy will be reviewed at least every five (5) years, and updated if necessary. For interpretation of this policy contact the Director of Library Services, who is CUNE’s Copyright Officer, at (402) 643-7358 or copyright@cune.edu.

Frequently Asked Questions (FAQ)

Can I scan a book from CUNE’s library to post on my course website?

We may be able to get permission from the copyright owner to do this, but scanning an entire book is a lot of work. A better option is to use only small portions from the book that directly support the lesson. Depending on the case, this might be fair use and not require obtaining permission. An even better option may be to work with the library to obtain an electronic copy of the book, and provide your students the link to it.

I want my online students to watch a film for class. Can I upload it to our CMS from a DVD, or should I just look for it on YouTube?

This is really two questions. If you or CUNE owns a legal copy of the film that includes an online educational use license, then you probably can upload it to a CMS that is accessible only to your students. Chances are, if your DVD copy does not specify this use, then it is NOT legal. However, using short clips for instructional purposes typically DOES fall within fair use. You might reconsider how much of the film you really need to use for class.

Using films from YouTube or other online services presents several issues. If the film’s copyright owner has uploaded it for public and/or educational use, then linking to it is acceptable. If someone other than the copyright owner has uploaded a copy of the film to a public site, or if the online film license is for private use only, you should not use it for class. Such usage disrespects the copyright owner and encourages students to disregard copyright concerns. Also, illegal film copies might be discovered and taken down at any time; relying on them is risky.

My student wants to use a popular song as background music for a class project. Can the presentation be recorded for their personal portfolio?

It depends. If the song is made freely accessible and usable by the copyright owner (such as if posted by the songwriter to a rights-free music website), then this use is acceptable as long as proper attribution is given. If the student owns a legal copy of a commercial song (e.g. a purchased CD or mp3 recording), educational fair use allows them to play it once in the background of a scholarly class presentation. However, a recording of the presentation would constitute an illegal copy of the song, and therefore must not be retained. If the presentation is to be retained, the student should use rights-free music and attribute the source in their presentation notes.

Will the library pay a license fee for the right to use an article or film in my class?

If an instructor needs to purchase temporary rights to use an individual item for a class, that should be paid from the instructor’s departmental budget. However, the copyright officer (library director) can help you look for options and facilitate the licensing of rights. Also, if the work (or a collection that contains it) could serve the broader CUNE community, the library might consider purchasing access rights for the institution.

Can we bring a DVD from home and play it on the TVs in the weight room during open workout times?

If the DVD is a training film intended for educational use, then the purchased license might include public display rights. If the DVD was sold for private use only – or if it is a commercial film without a public use license – then it is an infringement of copyright law to show it in a public setting such as a lounge or exercise facility.

Is there a simple rule of thumb that covers all or most copyright cases? Aren’t all educational uses acceptable?

Unfortunately, there is no simple rule. Copyright law is intentionally ambiguous to provide flexibility as new situations arise. Technological advances continually create new situations (such as distance learning) that must be evaluated. Each usage case must be considered on its own merits. Educational uses should be evaluated through the four (4) factors of fair use. Where fair use does not apply, usage rights must be purchased or permission sought from the copyright owner. The campus Copyright Officer is prepared to assist with any copyright questions. It is better to ask a question than just give up on using an important resource.

The CUNE Copyright Compliance Policy was most recently updated on April 12, 2017. This policy was based on a sample posted freely for use by the Copyright Clearance Center at www.copyright.com.

 

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