|
|
Chapter 6: Faculty Policies and Standards
6.15 COPYRIGHT
POLICY SUMMARY
This policy statement
summarizes and interprets the copyright law for Calvin College. The policy
as presented will serve most persons at Calvin College for most situations.
When more complete guidelines or advice are needed, consult the copyright
law documents available in the Provost's Office, or consult the Director
of the Instructional Resources Center. Throughout this section the citations
given in brackets are either sources for direct quotes or indications
of where more detailed information on the subject can be found. A list
of works cited appears at the end of this section.
6.15.1 General
College Policy
The Calvin College
copyright policy, briefly stated, is that the college respects the copyright
law and recognizes its obligation to act in accord with the law.
6.15.1.1 Copyright
Law
The copyright law
gives copyright owners the exclusive right to reproduce, adapt, dramatize,
arrange, distribute, perform, and display their works, and to authorize
others to do so, except for situations which the copyright law exempts.
[Section 106]
All reproduced copies
of any media (photocopy of text or sheet music, sound recording, videotape,
etc.) must display the notice of copyright in an obvious place. The notice
of copyright must include the symbol © ("c" in a circle) or the word:
copyright; the year of publication; and the name of the owner of the copyright.
Example: copyright 1989, Calvin College.
This is true for
copies made under Fair Use, by license, permission, or any other situation.
[Section 401]
6.15.1.2 Fair
Use
Copyright law requires
that permission be obtained for use of copyrighted material unless the
use is within legal exceptions. Some exceptions are clearly specified
in Sections 107-112 of Title 17, United States Code, and others fall within
the "Fair Use" doctrine and the public domain.
"Although the courts
have considered and ruled upon the fair use doctrine over and over again,
no real definition of the concept has ever emerged. Indeed, since the
doctrine is an equitable rule of reason, no generally applicable definition
is possible, and each case raising the question must be decided on its
own facts. On the other hand, the courts have evolved a set of criteria
which, though in no case definitive or determinative, provide some gauge
for balancing the equities. These criteria have been stated in various
ways, but essentially they can all be reduced to the four standards
which have been adopted in Section 107" [H.R. Report No. 94-1476].
Despite Section
106 (the exclusive rights), "the fair use of a copyrighted work, including
such use by reproduction in copies or sound recordings 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 fair use the
factors to be considered shall include:
- the purpose and
character of the use, including whether such use is of a commercial
nature or is for nonprofit educational purposes;
- the nature of
the copyrighted work;
- the amount and
substantiality of the portion used in relation to the copyrighted work
as a whole; and
- the effect of
the use upon the potential market for or value of the copyrighted work"
[Section 107].
6.15.1.3 Public
Domain
Certain copying of
works is permitted without permission if the work is in the public domain.
A work is considered to be in the public domain if:
- It was published
prior to January 1, 1978, without notice of copyright (required by the
Act of 1909); or
- Its period of
copyright protection has expired.
- For works
published prior to January 1, 1978, copyright protection expires
28 years from the date it was secured, unless renewed.
- If renewed,
copyright protection is extended an additional 47 years (75 years
total) after the date protection was first secured. For works created
after January 1, 1978, works are protected for the life of the author,
plus 50 years. The work is protected from the moment of creation,
whether published or unpublished, and does not necessarily need
to be registered or identified with a copyright notice.
- In the case
of a Work-Made-For-Hire, the copyright endures for a term of seventy-five
years from the year of its first publication, or a term of one hundred
years from the year of its creation, whichever expires first. [Section
302] Most material produced by the Government of the United States
is in the public domain. [Section 105]
6.15.1.4 Ownership
Calvin College, as
declared by its provost, disclaims ownership of copyrighted materials
created by faculty unless they were created under funding agreements or
special circumstances involving unusual commitments of college resources.
6.15.2 Media Specific Policies
6.15.2.1 Print/Photocopy
The person who uses
copying equipment or who requests the copy is responsible for any infringement.
[Section 108(f)(2)]
The Calvin College
Copy Center, in coordination with the Copyright Clearance Center, is able
to assist in securing photocopy rights to articles in over 600,000 periodicals.
The following guidelines
represent an agreement reached by representatives of authors, publishers,
and legislators. They refer only to copying from books and periodicals,
and are not intended to apply to musical or audiovisual works. The purpose
of these guidelines is to state the minimum and not the maximum standards
of educational fair use under Section 107 . . . . There may be instances
in which copying which does not fall within the guidelines stated below
may nonetheless be permitted under the criteria of fair use.
6.15.2.1.1 Single
Copying for Teachers
A single copy may
be made of any of the following by or for a teacher at his or her individual
request for his or her scholarly research or use in teaching or preparation
to teach a class:
- A chapter from a book;
- An article from a periodical or newspaper;
- A short story, short essay or short poem, whether or not from a collective work;
- A chart, graph, diagram, drawing, cartoon or picture from a book, periodical, or newspaper.
6.15.2.1.2 Multiple Copies for Classroom Use
6.15.2.1.2.1 Policy Statement
Multiple copies (not
to exceed in any event more than one copy per pupil in a course) may be
made by or for the teacher giving the course for classroom use or discussion;
provided that:
- The copying meets
the tests of brevity and spontaneity as defined below; and,
- The copying meets
the cumulative effect test as defined below; and,
- Each copy includes
a notice of copyright.
6.15.2.1.2.2 Definitions
Brevity
- Poetry:
- A complete poem if less than 250 words and if printed on not more than two pages or,
- from a longer poem, an excerpt of not more than 250 words.
- Prose:
- Either a complete article, story or essay of less than 2,500 words, or
- an excerpt from any prose work of not more than 1,000 words or 10% of the work, whichever
is less, but in any event a minimum of 500 words.
- [Each of the numerical
limits stated above may be expanded to permit the completion of any
unfinished line of a poem or of an unfinished prose paragraph.]
- llustration:
One chart, graph, diagram, drawing, cartoon or picture per book or per periodical issue.
- "Special" Works:
Certain works in
poetry, prose or in "poetic prose" which often combine language with
illustrations and which are intended sometimes for children and at other
times for a more general audience fall short of 2,500 words in their
entirety. Section 6.15.2.1.2.2 above notwithstanding
such "special works" may not be reproduced in their entirety; however,
an excerpt comprising not more than two of the published pages of such
special work and containing not more than 10% of the words found in
the text thereof, may be reproduced.
Spontaneity
- The copying is at
the instance and inspiration of the individual teacher, and
- The inspiration and
decision to use the work and the moment of its use for maximum teaching
effectiveness are so close in time that it would be unreasonable to expect
a timely reply to a request for permission.
Cumulative Effect
- The copying of the material is for only one course in the school in which the copies are
made.
- Not more than one short poem, article, story, essay or two excerpts may be copied from the
same author, nor more than three from the same collective work or periodical
volume during one class term.
- There shall not be more than nine instances of such multiple copying for one course during
one class term.
- [The limitations stated above shall not apply to current news periodicals and newspapers
and current news sections of other periodicals.]
6.15.2.1.3 Prohibitions
Notwithstanding any of the above, the following shall be prohibited:
- Copying shall not be used to create or to replace or substitute for anthologies, compilations
or collective works. Such replacement or substitution may occur whether
copies of various works or excerpts therefrom are accumulated or reproduced
and used separately.
- There shall be
no copying of or from works intended to be "consumable" in the course
of study or of teaching. These include workbooks, exercises, standardized
tests and test booklets and answer sheets and like consumable material.
Copying shall not:
- substitute for
the purchase of books, publishers' reprints or periodicals;
- be directed by
higher authority;
- be repeated with
respect to the same item by the same teacher from semester to semester.
- No charge shall
be made to the student beyond the actual cost of the photocopying.
[H.R. Report 94-1476]
6.15.2.2 Library Copying
It is reasonable
to believe that fair use should apply to the library reserve room to the
extent that it functions as an extension of classroom readings or reflects
an individual student's right to photocopy for his or her personal scholastic
use. In addition, a faculty member may also request that multiple copies
of photocopied, copyrighted material be placed on the reserve shelf if
there is insufficient time to obtain permission from the copyright holder
[The Copyright Primer, p. 21-22.]
There are some situations
such as for research purposes, in which the library may make a copy of
a work for you, if "it is done without any purpose of direct or indirect
commercial advantage." For example, you may request an article or small
excerpt of a work, a work which is out of print, or even a copy through
inter-library loan.
6.15.2.3 Sheet
Music
"Emergency copying
to replace purchased copies which for any reason are not available for
an imminent performance is not an infringement of copyright, provided
purchased replacement copies shall be substituted in due course" [H.R.
Rep. No 94-1476].
Performance of sheet
music is exempt from copyright restriction when used in a face-to-face
classroom teaching situation, and in a "classroom or similar place" [Section
110(1)].
"For academic purposes
other than performance, single or multiple copies of excerpts of works
may be made, provided that the excerpts do not comprise a part of the
whole which would constitute a performable unit such as a section, movement
or aria, but in no case more than 10 percent of the whole work. The number
of copies shall not exceed one copy per pupil" [H.R. Rep. No. 94-1476].
"For academic purposes
other than performance, a single copy of an entire performable unit (section,
movement, aria, etc.) that is, (1) confirmed by the copyright proprietor
to be out of print or (2) unavailable except in a larger work, may be
made by or for a teacher solely for the purpose of his or her scholarly
research or in preparation to teach a class" [H.R Rep. No 94-1476].
6.15.2.4 Recorded
Music/Speech
Performance of legally
made sound recordings is exempt from copyright restriction when used in
a face-to-face classroom teaching situation, and in a "classroom or similar
place." [Section 110(1)]
A single copy of
a sound recording (such as a tape, disc or cassette) of copyrighted music
may be made from sound recordings owned by an educational institution
or an individual teacher for the purpose of constructing aural exercises
or examinations and may be retained by the educational institution or
individual teacher. (This pertains only to the copyright of the music
itself and not to any copyright which may exist in the sound recording.)
[H.R. Rep. No. 94-1476].
A single copy of
recordings of performances by students may be made for evaluation or rehearsal
purposes and may be retained by the educational institution or individual
teacher. [H.R. Rep. No. 94-1476].
Assembling an audio
tape "for the purpose of constructing aural exercises" is a permissible
use. [H.R. Rep. No. 94-1476] Using multiple copies of it in the Cayvan
Room is Fair Use.
Playback of records,
CDs, and purchased or legally recorded audio-tape music in the Cayvan
Room, Fine Arts Center Auditorium, or any place other than a classroom
or residence room, is a public performance, and is covered by our licenses
with ASCAP, BMI, and SESAC.
The use of recorded
music in an audiovisual program, such as a slide show or videotape, requires
the acquisition of public performance rights and of synchronization rights.
Public performance rights are already covered by our licenses with ASCAP,
BMI, and SESAC. "Sync" rights must be obtained separately.
6.15.2.5 Music
in Worship
Exemptions are made
for the "performance of a nondramatic literary or musical work or of a
dramatico-musical work of a religious nature, or display of a work, in
the course of services at a place of worship or other religious assembly."
[Section 110(3)]
6.15.2.6 Audio-Visual
Works
Performance or display
of lawfully made copies of audiovisual works are exempt from copyright
restriction when used in a face-to-face classroom teaching situation,
and in a "classroom or similar place." [Section 110(1)]
Purchase of a piece
of media transfers ownership of the material copy only, but not of the
work itself. It is an infringement to copy it (even temporarily) without
permission.
It appears that the
intent of the copyright law is to ensure that the images in these media
are displayed in their original sequence. Adapting, condensing, abridging,
rearranging, or other forms of editing are viewed as creating a derivative
work from the original, and are infringements of copyright.
6.15.2.7 Photograph
and Slide
Making photographic
slides of illustrations or photographs from sources such as newspapers,
magazines, textbooks, and reference books seems to be acceptable practice
if the slides are not commercially available.
6.15.2.8 Motion
Picture
Copying a motion
picture to make an archival copy, or to transfer it into a more convenient
format (such as video) may be done only with written authorization from
the copyright holder.
6.15.2.9 Videotape
The label on leased,
rented, or purchased videotapes which reads "FOR HOME USE ONLY" does not
prohibit their use in classroom teaching.
Copying a videotape
to make an archival copy, or to transfer it into a more convenient format
may be done only with written authorization from the copyright holder.
Condensed Guidelines
for Off-Air Taping of Television Programs:
- A program which
is being broadcast to the general public may be videotape recorded.
- It may be kept
for a total of 45 days.
- It may be shown
to a class twice during the first 10 school days following taping.
- The instructor
may review and evaluate the program, but must decide to erase or retain
(by purchasing an off-air license) within the 45-day limit.
Classroom use of
videotapes which have been recorded at your home (personal property) does
not get around these restrictions. "Home Use" and "Educational Use" have
different sets of rules.
A copy of a video
(or audio) recording of a musical, dramatic, etc. performance may be made
for any performer or technical associate of the production for the purposes
of "criticism, scholarship, or research."
It is not an infringement
to have a television set displaying a commercial broadcast in a public
place. [Section 110(5)]
It is an infringement
to publicly display a videotape without a public performance license.
The definition of a public performance, however, is not clear with respect
to college campus dormitory use.
6.15.2.10 Satellite
Reception
Viewing and/or recording
satellite transmissions usually requires a license.
The guidelines for
off-air recording were written to address the videotaping of broadcasts
from television stations and do not apply to satellite reception. Fair
Use guidelines may apply.
6.15.2.11 Software
The owner of a computer
program may make or authorize the making of a copy of that program if
it is usearchival copy only. It may be kept only as long as he or she
owns the original copy. [Section 117(2)]
Although there is
little legal guidance for the use of software, these five tests [courtesy
of David Ruetschlin, Assistant Editor, "What Educators Should Know About
Copyright," Phi Delta Kappa Educational Foundation, Bloomington, IN] are
considered by many people to be practical, fair, and safe.
The Market Effect
Test
Since an important
function of the copyright law is to protect the financial interest of
the authors, most uses of software which deprive a copyright holder of
revenue are illegal. Making duplicate copies of a program, using one copy
to load several machines simultaneously, or loading one copy into a network
clearly fail this test.
The Intended Use
Test
The intended use
of a program is usually obvious. If it was designed to be used in one
machine, it should not be loaded into a network. A "network version" implies
that it may be used for that purpose. Included documentation which explains
how to load the program onto a hard disk would seem to imply that such
loading is permitted by the copyright owner.
The Simultaneous/Sequential
Users Test
Since the purchaser
of a program has the right to loan it to other people, they may use it
legally as long as they are accessing the program one at a time and not
simultaneously.
In an educational
situation, it seems legal to let students use one copy of a program one
at a time. However, replacing this use for a lab or classroom situation
may be infringement if it is a substitute for the purchase of multiple
copies. [Columbia Pictures, Inc. vs. Redd Horne, Inc. (1984), Third Circuit
Court of Appeals]
Fair Use Test
The Fair Use guidelines
listed earlier in this document provide little support for instructional
use exemption to the copyright laws.
Licensing Agreements
The most illuminating
source of guidance may be the licensing agreements which accompany most
programs. You should know what the agreement is for each program you use.
These agreements supplement the copyright law, thus providing concrete
rights and limitations for the user.
6.15.3 Dramatic
Works
Dramatic works, such
as plays, operas, pantomimes, comedy "skits," and ballets, as well as
the right to dramatize, adapt, arrange and perform them, are exempt from
copyright restriction when used in a face-to-face classroom teaching situation,
and in a "classroom or similar place." [Section 110(1)] Exemptions are
made for the "performance of a nondramatic literary or musical work or
of a dramatic-musical work of a religious nature, or display of a work,
in the course of services at a place of worship or other religious assembly."
[Section 110(3)]
To be exempt under
this section, the performance or display must be "in the course of services."
This "excludes activities at a place of worship that are for social, educational,
fund raising, or entertainment purposes" unless properly licensed.
The purpose here
is to exempt certain performances of sacred music that might be regarded
as "dramatic" in nature, such as oratorios, cantatas, musical settings
of the mass, choral services, and the like. The exemption is not intended
to cover performances of secular operas, musical plays, motion pictures,
and the like, even if they have an underlying religious or philosophical
theme and take place "in the course of (religious) services" [House, p.
84].
6.15.4 Permissions
and Penalties
6.15.4.1 Obtaining
Permission
If you want to use
copyrighted material in a way which conflicts with one of the exclusive
rights given to the copyright holder, and there is no special exemption
to allow it, you must obtain permission from the copyright holder or proprietor.
Any copyright prohibitions may be overridden by securing the proper permission.
Many copyright owners
will grant permission for one-time use of parts of their works without
charge, or upon payment of a minimal fee. However, repeated use or reproduction
is often not allowed unless royalties are paid. These royalties are the
legitimate compensation for the creative effort made by the author, lyricist,
composer, artist, or other producer. To avoid payment by unauthorized
copying is theft.
Although much can
be accomplished using the telephone, "verbal authorization" for a use
is not valid. The final form of permission must be on paper, filed, and
kept for at least three (3) years.
If you need more
information about how to obtain permission, contact your chairperson,
supervisor, or one of the following departments, which has experience
in that area.
| Media
Department |
Video,
Film, Slide— Audio-Visual Department |
| Photocopies
— Copy Center |
Software—
Computer Center |
| Music
Department |
Drama—
Communication Arts and Sciences |
6.15.4.2 Penalties
Anyone who violates
the copyright law is an infringer, and is liable to be sued in a civil
court by the copyright owner. [Section 501(a),(b)]
A common action preceding
an actual suit is the serving of an order to "cease and desist" the infringing
activity. This might be done when the copyright owner wants to stop the
infringing activity, but prefers not to spend the time and money required
to follow-through with a suit.
6.15.4.3 Damages
In addition to actual
damages and lawyers' fees, the infringer may be liable for statutory damages.
Willful infringement can be punished by the awarding of statutory damages
of up to $50,000. [Section 504,505]
Any person who, with
fraudulent intent, removes or alters any notice of copyright appearing
on a copy of a copyrighted work shall be fined not more than $25,000.
[Section 506(d)]
6.15.4.4 Innocent
Infringer
If an infringer proves
to a court that he or she was not aware and had no reason to believe that
his or her acts constituted an infringement, the court may reduce or eliminate
the damages. This especially applies to employees of a nonprofit educational
institution who believed their use qualified as Fair Use under section
107. [Section 504(c)(2)]
Any person who innocently
infringes a copyright, because the copyright notice has been omitted from
a legally made copy, incurs no liability for damages for any infringing
acts committed before receiving notice that the work has been copyrighted,
if the person proves that he or she was misled by the omission of the
notice. [Section 405(b)]
6.15.4.5 Limitations
on Actions
Actions against an
infringer must be initiated within three years after they occur. [Section
507]
6.15.5 Sources
The following documents
served as sources for this summary policy statement as well as for the
unabridged policy statement also written by R. Nieuwsma, Director of the
Instructional Resources Center.
The Copyright Act
of October 19, 1976. Title 17 of the United States Code, Pub. L. 94-553,
90 Stat. 2541.
Amendments:
- Act of August 5,
1977, Pub. L. 95-94, 91 Stat. 653, 682.
- Act of November
6, 1978, Pub. L. 95-598, 92 Stat. 2549, 2676.
- Act of December 12, 1980, Pub. L. 96-517, 94 Stat. 3015, 3028.
- Act of May 24, 1982, Pub. L. 97-180, Stat. 91, 93.
- Act of July 13, 1982, Pub. L. 97-215, 96 Stat. 178.
- Act of October 25, 1982, Pub. L. 97-366, 96 Stat. 1759.
- Act of October 4, 1984, Pub. L. 98-450, 98 Stat. 1727
- Act of August 27, 1986, Pub. L. 99-397, 100 Stat. 848.
- Act of November 8,
1984, Protection of Semiconductor Chip Products, Pub. L 98-620, 98 Stat.
3347, 3356.
- Circular 92, Copyright
Law of the United States of America is a compilation of current copyright
law, and is available at no charge from the U.S. Copyright Office, Library
of Congress.
- The Senate Report.
S. Rep. No. 94-473, 94th Cong., 1st Sess., November 20, 1975.
- The House Report. H.R. Rep. NO. 94-1476, 94th Cong., 2nd Sess., September
3, 1976.
- The Conference Report.
H.R. Rep. No. 94-1733, 94th Cong., 2nd Sess., September 29, 1976.
- Copyright Office
Regulations. 37 Code of Federal Regulations, Section 210.
- Cable Franchise Policy
and Communications Act of 1984. H.R. Rep. No. 98-934, 98th Cong., 2nd
Sess., August 1, 1984.
Amendment:
- Act of October 30,
1984, pub. L. 98-549, 98 Stat. 2779.
- Circular R21, Reproduction
of Copyrighted Works by Educators and Librarians. Washington, D.C.: Copyright
Office, Library of Congress, 1978.
- Becker, Gary H., The Copyright Game. Gary Becker, 1986.
- EDUCOM, Using
Software. Princeton, NJ: EDUCOM, 1987.
- Helm, Virginia, Fastback
223, What Educators Should Know About Copyright. Bloomington, IN:
Phi Delta Kappa Educational Foundation, 1986.
- Krasilovsky, M. William,
and Shemel, Sidney, This Business of Music. New York: Billboard
Publications, Inc., 1985.
- Reed, Mary Hutching, The Copyright Primer for Libraries and Education, Chicago, IL:
American Library Association.
- Reed, Mary Hutchings,
and Stanek, Debra, Library and Classroom Use of Copyrighted Videotapes
and Computer Software, American Libraries, February, 1986.
- Sinofsky, Esther
R., A Copyright Primer For Educational And Industrial Media Producers.
Friday Harbor, WA: Copyright Information Services, 1988.
- Sinofsky, Esther
R., Off-Air Videotaping in Education. New York: R.R. Bowker Company,
1984.
- Vlcek, Dr. Charles
W., Copyright Policy Development. Friday Harbor, WA: Copyright
Information Services, 1987.
|
