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Copyright for Higher Education: For Faculty

Basic information about U.S.C. Title 17 Copyright Law particularly as it relates to higher education.

Copyright for Teaching

The copyright law is way behind technology and to date, there is only a small body of case law related to the Internet, fair use and higher education.  Never-the-less, fair use is intended to be a flexible doctrine that can be applied to any number of situations and meet a variety of unforeseen needs, including the Internet.  When it comes to applying the fair use exemption, the Internet is no different than any other tangible form of expression.

TEACH Act Conditions for Online Programs[1]

Applicable to nonprofit accredited institutions only.  Gives instructors teaching via interactive digital networks enhanced ability to use most copyrighted material in their electronic transmissions

Online Program Conditions

1.     Transmission must be comparable or analogous to that which is done in a live face-to-face classroom setting.

2.     Transmission may ONLY be made to students officially enrolled in the course

3.     Transmission must be an integral part of the course and be directly related to the teaching content

4.     Transmission must be under the control or direct supervision (authorization) of the professor or under his/her supervision (professor does not actually have to be present)

Institutional Technological Requirements

1.     Measures MUST be taken to “reasonably” prevent students (of average capability) from retaining and redistributing the copyrighted works beyond the course period.  Material may not remain in accessible form on the student’s computer, but may remain on the institution’s server.

Suggested course of action

a.    Transmission password protected

b.    Transmission accessible only for the duration of the course

c.    Notice of copyright posted on each transmission

2.     Measures MUST be taken to limit access “Solely” to enrolled students

Suggested course of action

a.    Transmission placed on course home page behind firewall

b.    Transmission taken off the course home page at the termination of the course

c.    Transmission password protected

3.     Institution MUST develop informational materials that describe and promote compliance with copyright laws

a.    Faculty and affected staff must be instructed on the limits of the law

Suggested course of action

                         i.    Each must decide what content is acceptable under TEACH

                        ii.    Use TEACH Checklist (see below)

b.    Students must be informed regarding copyright law and notified that material contained in the transmissions may be copyrighted.

Suggested course of action

                         i.    Post notice on enrollment documentation and course programs

                        ii.    Notice of copyright posted on all performances and displays

4.     Institution Must develop copyright policies which MUST include:

a.    Promotion of copyright law compliance

b.    Action taken against offenders

c.    System of enforcement in place

d.    Needs to be meaningful

e.    Does not need to be signed off by the board of trustees

f.      Advances an understanding of the law in accordance with our mission

Transmissions Permitted

1.     Performance via digital networks of

a.    an entire non-dramatic literary or musical work; and

b.    reasonable and limited portions of all other performances, including those incorporated in any type of audio-visual work such as videotapes and films, and any dramatic musical work

2.     Displays of works via digital networks, including still images in amounts comparable to typical face-to-face classroom sessions

3.     May copy digital works and May digitize analog works provided that:

a.    The copies are retained by the institution (may store on server)

b.    Copies are used ONLY for the DE programs

c.    The analog work that needs digitizing does not already exist in digital form OR

d.    The existing digital version of an analog work incorporates technological protection that prohibit its use

4.     Fair Use still applies

Transmissions NOT Permitted

1.     of works produced or marketed for the digital distance education market

2.     of textbooks, coursepacks or similar works “typically” purchased by students individually.

3.     to Interfere in technological protections of the original copyrighted work to defeat retention and distribution

4.     of works not legally acquired

 

[1] This document was prepared by Janet L. Tillman, Reference Librarian and Institutional Copyright Specialist, based on her understanding of the subject matter; it should not be considered legal advice

§ 107 . Limitations on exclusive rights: Fair use40

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— 

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

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