Copyright Compliance: Compliance Policy

Policy Preparation

Checklist for creating a Copyright Policy

Academic Copyright Policy - Sample

Tips for a Successful Rollout and Implementation

 
Academic Copyright Policy - Sample

SAMPLE COPYRIGHT COMPLIANCE POLICY
FOR TEXT-BASED WORKS IN THE CLASSROOM AND LIBRARY

The purpose of this sample policy is to assist you in developing a copyright compliance policy for the use of text-based works in the library and classroom for your institution. Please feel free to use this sample as a guideline in creating your own policy.

Applying U.S. copyright law to individual circumstances involves the interpretation of both statutes and case law, in the light of both the practices of individual and organizational users and the underlying goals of the copyright system. Academic institutions using this sample policy as a guide for their own policies are encouraged to consider various interpretations of copyright law carefully and develop a policy consistent with the practices of their institution. Also, due to the complex nature of copyright, it is recommended that your policy be reviewed by a lawyer who specializes in copyright law for academic institutions.

XYZ UNIVERSITY COMPLIANCE POLICY: LIBRARY AND CLASSROOM

The purpose of the XYZ University ("XYZ") Copyright Compliance Policy: Library and Classroom is to provide a summary of U.S. copyright law as it relates to the use of text-based copyright-protected works in the classroom and library at XYZ, 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 XYZ administrators, faculty, librarians, students, employees, and others with a standard approach for addressing complex copyright issues. This policy covers classroom issues such as photocopying, online and distance education, and coursepacks. It also covers library uses for print and electronic reserves, ILL and document delivery. Other XYZ copyright and intellectual property policies may complement this policy by providing guidance on copyright issues beyond text-based materials used in the classroom and library.

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. Copyright Officer <Name> may be able to assist you with any questions you may have. <Name> may be reached at: <phone> or via e-mail at <email>.

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 http://www.copyright.gov/circs/circ1.html#hlc.

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 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; and
  4. The effect of the use being evaluated upon the potential market for or value of the copyright-protected work.

Fair use is an ambiguous concept and the law does not state exactly what uses of a copyrighted work will be considered fair uses under the law and may therefore be used without 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. The bottom line is that fair use requires a very circumstance-specific analysis as to whether a particular use or reuse of a work may indeed be considered fair use.

To avoid confusion and minimize the risk of copyright infringement, XYZ 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 in a parody of short portions of the work itself.
  • A summary 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 to use the work from the copyright holder or its agent.

TYPES OF USE
Classroom Handouts
Based on XYZ's fair use analysis, classroom handouts fall into two categories; one that requires permission and one that does not. 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.

Coursepacks
All articles, chapters and other individual works in any print or electronic coursepack require copyright permission. Copyright permission for coursepacks is usually granted by the academic period. To reuse a coursepack in subsequent academic periods (e.g.: semester, quarter, trimester, etc.), you probably 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 coursepacks it is important to clarify who will obtain permission for the coursepack–the copy shop or reprographic 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 XYZ 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 XYZ 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 XYZ 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 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 reproductions permitted under this provision from another library or archive, the XYZ 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 XYZ 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. 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 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 FOR STUDENTS
XYZ library may make reproductions for library users (students, faculty, etc.), provided the following criteria are met:

  • The library makes one reproduction of an article from a periodical or a small part of any other work.
  • The reproduction becomes the property of the library user.
  • The library has no reason to believe that the reproduction will be used for purposes other than private study, scholarship and research.
  • The library displays 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.

Document Delivery Services
It is important to maintain a distinction between ILL and Document Delivery Services (DDS). Photocopying for DDS requires copyright permission.

ILL
The XYZ library may participate in interlibrary 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. XYZ follows the CONTU guidelines for defining "aggregate quantities." The CONTU guidelines state that 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 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, including XYZ, 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 XYZ 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.). Copyright Clearance Center has many reciprocal licenses to allow use of materials from other countries.

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 (including e-mail) and to ensure that the XYZ Copyright Officer has a copy of each permission form or letter.

The time to obtain permission may vary and, where possible, it is recommended to start the permissions procedure at least six 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. Often, Copyright Clearance Center is your quickest one-stop resource for obtaining copyright permission.

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 and that registration with the Copyright Office is not required.

There are two primary options for obtaining permission to use the work. You may contact the copyright holder directly or you may contact Copyright Clearance Center. Check with your department manager to determine if your institution already has an established process for obtaining copyright permission through Copyright Clearance Center. If your department or campus does not have a centralized location or process for obtaining copyright permission, you may create an account with Copyright Clearance Center at www.copyright.com.

Information in your 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

FREQUENTLY ASKED QUESTIONS
[Include questions that arise in your institution, with answers that have been vetted by your copyright attorney.]

REPORTING SUSPECTED INFRINGEMENTS
If you suspect that anyone at XYZ, including a student, is using any copyright-protected material without the permission of the copyright holder, immediately report this to <Name>, Copyright Officer at <phone> or <email>.

REVIEW AND INTERPRETATION OF POLICY
This Policy will be reviewed no later than <date>, and updated if necessary.
For interpretation of this Policy, contact <Name>, Copyright Officer at <phone> or <email>.

The XYZ University Copyright Compliance Policy: Library and Classroom has been most recently updated on <date>.