Pima County Community College District Standard Practice Guide

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SPG Title:  Copyright Practice and Compliance
SPG Number:  SPG-2701/AA
Effective Date:  9/10/07
Approval Date:   9/10/07
Review Date(s):
Revision Date(s):
Schedule for Review & Update:  Annually
Unit Responsible for Review & Update:  Executive Vice Chancellor for Administration
Sponsoring Unit/Department: Executive Vice Chancellor for Administration
Regulation Title & No.:  Copyright, RG-2701/A
Policy Title(s) & No(s):  Copyright, BP-2701
Legal Reference:
Cross Reference:

PURPOSE

The purpose of the Pima Community College Copyright standard practice guide is to provide a summary of United States copyright laws as they relate to the use of copyright-protected works, and to provide guidelines on the processes and procedures for lawful practice and use of copyrighted materials for students and employees.

DEFINITIONS

Copyright
Copyright is a form of protection provided by the laws of the United States (Title 17, U.S. Code) to the 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 — including books, magazines, journals, newsletters, maps, charts, photographs, graphic materials, and other printed materials; unpublished materials; and non-print materials, including electronic content, computer programs and other software, sound recordings, motion pictures, video files,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. This protection is available to both published and unpublished works.

Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive 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.

It is illegal for anyone to violate any of the rights provided by the copyright law to the owner of a copyright. These rights, however, are not unlimited in scope. See“Fair Use” below.

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.

Copyright Law
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); the Digital Millennium Copyright Act (DMCA); and the Technology, Education and Copyright Harmonization (TEACH) Act. 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.

Special Copyright Provisions for Academia
The Copyright Act contains specific exceptions for the use of copyright-protected materials by academic institutions. These provisions include:

–  Section 107 on fair use, which applies to activities such as the use of excerpts for illustration or comment; the unexpected and spontaneous reproduction of classroom materials, and the creation of parodies.

–  Section 108 on reproduction by libraries and archives, which applies to activities such as archiving; replacing lost, damaged or obsolete copies; patron requests for entire works; and interlibrary loans.

–  Section 109 on first sale, which permits the resale or lending of copies of works, providing the basis for library lending and the sale of used books.

– Section 110 on the use of materials in an educational setting, which permits certain types of content use in the classroom and in distance education.

Special Copyright Provisions for Persons Covered by the Americans with Disabilities Act
Under the Americans with Disabilities Act, and an Office of Civil Rights settlement agreement, compliance with copyright law requires that post-secondary education institutions must “effectively communicate” with individuals with disabilities, whether the communication is via media, print or the Internet. This includes students, faculty, staff, and the wider community.

All forms of communication (i.e. audio, video, text, web-based media) at the College must be as effective for people with disabilities as it is for those without disabilities. Alternate formats include, but are not limited to:

– Captions

– Braille

– Audio cassette

– Large print

– Computer diskette

– CD-ROM

– E-text

Conference on Fair Use (CONFU)
College guidelines are based upon the 1998 Conference on Fair Use (CONFU) report to Congress and have their roots in the original Kastenmeier Guidelines from 1976. The ad hoc committee that composed those guidelines clearly indicated that the guidelines were meant to be a minimum that constituted educational fair use.

The guidelines have not been passed into law and represent the suggested conditions under which educators can use copyright protected materials without getting consent of the author or creator of the work. They are presented here to assist in making decisions about whether or not an intended use of certain materials is fair or what is an infringement.

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.

However, not all uses in an academic context are automatically considered fair use. The Copyright Act does not spell out the specific types of content reproduction that qualify as fair use. Instead, it offers an outline as to how to analyze whether fair use may apply in a particular situation. As a result, the Copyright Act leaves it up to the individual to determine, based upon four factors, whether fair use applies in each particular circumstance.

The four factors 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.

Fair use is not an exception to copyright compliance; it is more of a legal defense. That is, if you copy and share a copyright-protected work and the copyright holder claims copyright infringement, you may be able to assert a defense of fair use which you would then have to prove.

Fair Use can only be used the first time you are using an article. Once you have used it in your class, you need to get permissions for any future uses.

Public Domain
Public domain material is material that is uncopyrighted, whose copyright has expired, or is uncopyrightable. The last category includes government publications, jokes and ideas. Public domain works are available for unrestricted use by anyone. Permission and/or payment are not required for their use.

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

PROCESS AND PROCEDURES
To avoid confusion and minimize the risk of copyright infringement, the College 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; or
A summary of an address or article, which may include quotations of short passages of the copyright-protected work.

If use does not meet the above criteria and the work is protected by copyright, a user must obtain permission to use the work from the copyright holder or its agent. The College does not interpret fair use to include mass production of material for repeated classroom use, commercial activity, profiting from the use, entertainment, bad-faith behavior, and denying credit to the original author.

Fair Use Guidelines for Printed Documents
In accordance with Fair Use, the College has determined that the following is allowable:

Classroom Handouts
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.

Instructors may not copy from works intended to be "consumable" in the course of study or teaching such as workbooks, exercises, standardized tests and answer sheets and like material.

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 for the academic period. To reuse a course-pack in subsequent academic periods (e.g. semesters), 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.

Deferring responsibility for copyright permission – for example, to the copy center – will not provide the faculty member or the College protection against a claim of copyright infringement.

Reserves
If the College library owns a copy of a work, 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 Libraries
It is permissible to photocopy copyright-protected works in a College 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 College’s 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 a copyright 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 College’s 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 College’s 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 a copyright notice at the place library users make their reproduction requests to the library.

Library Providing Photocopies for Students
The College library may make one reproductions of an article from a periodical or a small portion of any other work for library users, provided that the reproduction becomes the property of the library user, and the library has no reason to believe that the reproduction will be used for purposes other than private study, scholarship and research. The library must displays a copyright notice at the place library users make their reproduction requests to the library.

Photocopying
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.

The library must display a copyright notice at the place library users make their photocopies.

Inter-library Loans
The College 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. The College follows the Conference on Fair Use (CONFU) guidelines for defining "aggregate quantities." The CONFU 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 CONFU.

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.

Fair Use Guidelines for Digital Materials
It is still unclear how U.S. copyright laws apply to digital materials. However, CD-ROMs, online databases, Internet web pages, scans and other types of digital media should be treated the same as traditional media with regard to copyright and fair use. To guard against potential copyright infringement, the College recommends that before using any content from a web site, posting any content to a web site, forwarding an e-mail or e-mail attachment, reproducing or forwarding any comments from any electronic discussion list, bulletin board or newsgroup, or posting a link from your site to another Web site (especially to a page other than the homepage), you should obtain permission from the copyright holder or its agent.

Fair Use Guidelines for Electronic Reserves
All faculty will be responsible for placing digital copies of works – so-called “e-reserves” – on their MyPima course sites and/or course web pages in accordance with College policy and copyright law.

Fair Use Guidelines for Video
Students or instructors may perform or display lawfully-made videotapes or videodiscs in a non-profit educational setting when the purpose of the performance or display is educational – for example, a history class may watch a videotape of the film series "The Civil War" even though the videotape is labeled "Home Use Only" as long as it is being displayed in class for educational purposes. Educational settings include a classroom or similar place devoted to instruction, such as a school library, gym, auditorium, or workshop.

Group viewing of videos labeled "For Home Use Only" is not permissible if the setting does not meet the criteria above (e.g. if the performance or display is for entertainment purposes) whether or not a fee is charged. More than a few people or more than one family may not view a video on library-owned equipment.

Videos may not be transmitted from an outside location without written permission from the copyright owner. Videos may not be transmitted to audiences not in the same room or same general area unless written permission from the copyright owner has first been obtained.

A library may reproduce and/or distribute videos to replace works that are lost, stolen, or damaged and that cannot otherwise be replaced at a fair price.

Fair Use Guidelines for Broadcast Programming Materials
A television program can be recorded from network television or cable transmissions by a nonprofit educational institution and retained for forty-five (45) days. The recording may be used once by individual teachers in the course of relevant teaching activities, and repeated once only when instructional reinforcement is necessary, in classrooms and similar places devoted to instruction within a single building, cluster, or campus, as well as in the homes of students receiving formalized home instruction, during the first ten (10) consecutive school days in the 45 day retention period. (After the first 10 days, the video recording can only be used for teacher evaluation purposes, to determine whether or not to include the broadcast program in the teaching curriculum. If the teacher wants to keep it within the curriculum, permission must be obtained from the copyright owner.) After the 45 day retention period, the recording must be erased or destroyed.

A video recording of a broadcast can be made only at the request of, and used by, individual teachers. A television show may not be regularly recorded in anticipation of requests – for example, there cannot be a standing request to record each episode of a PBS series. Only enough copies may be reproduced from each recording to meet the needs of teachers. Off-air recordings need not be used in their entirety, but the recorded programs may not be altered from their original content. Off-air recordings may not be physically or electronically combined or merged to constitute teaching anthologies or compilations. All copies of a recording must include the copyright notice on the broadcast program as recorded.

Fair Use Guidelines for Software Materials
Copyright laws apply to computer software just as they do to other copyrighted works. Most licensing agreements prohibit renting, leasing or lending original copies of software. A single-user program may not be installed on more than one computer without written permission from the copyright owner. Illegal copies of software may not be used on College equipment.

Because most software copying involves copying the entire computer program, rather than a portion of it, unauthorized copying will rarely be considered fair use. However, a copy of a program may be made if such a copy is essential to use of the program (i.e. copying onto the hard disk of one machine), if the copy is made for archival purposes only, (i.e. and archival copies are destroyed once the original software is transferred or sold), or if rights to copy the software have been purchased and documentation of those rights is on file.

Some types of computer software have less stringent rules on copying. These include shareware, freeware and public domain software. Shareware may typically be downloaded and used for free during a specified trial period, after which continued use requires the purchase of a license. Freeware and public domain software are made available for use free of charge for an unlimited period of time, but in the case of freeware, the author retains the rights to distribute and develop the software, and to receive credit for its authorship. Unless a software program is clearly marked “shareware,” “freeware” or “public domain”, the user should assume that it is copyrighted and that permission must be obtained to copy it.

Fair Use Guidelines for Music Materials
Copyright laws apply to music materials just as they do to other copyrighted works.

Sheet Music
A music instructor can make copies of excerpts of sheet music or other printed works, provided that the excerpts do not constitute a "performable unit" such as a whole song, section, movement or aria. In no case can more than 10% of the whole work be copied and the number of copies may not exceed one copy per pupil. Printed copies that have been purchased may be edited or simplified provided that the fundamental character of the work is not distorted or the lyrics altered (or added).

Instructors may not copy sheet music for the purpose of creating anthologies or compilations used in class. Instructors may not copy from works intended to be "consumable" in the course of study or teaching such as workbooks, exercises, standardized tests and answer sheets and like material.

Sheet music may be copied for the purpose of performance only in an emergency, to replace purchased copies which are not available for an imminent performance, provided purchased replacement copies are substituted in due course.

If copyrighted sheet music is out of print (not available for sale), an educator can request permission to reproduce it from the music publisher. A library may use the "Library Requisition for Out-of-Print Copyrighted Music" available from the Music Publishers' Association.

Sound Recordings
A single recording of a performance of copyrighted material may be made by a student for evaluation or rehearsal purposes, and the educational institution or individual teacher may keep a copy. In addition, a single copy of a sound recording owned by an educational institution or an individual teacher (such as a tape, disc or cassette) of copyrighted material may be made for the purpose of constructing aural exercises or examinations, and the educational institution or individual teacher may keep a copy.

Instructors may not copy sound recordings for the purpose of creating anthologies or compilations used in class.

A sound file on a Web page is not considered a single copy, and therefore the single copy rule for copyrighted sound recordings does not apply. Each time a web page is viewed and sounds included in it are played, it is considered a new copy of the sound recording. However, web page designers may use public domain and royalty free sounds without obtaining licenses or prior permission.

All copies of sheet music and sound recordings must include the copyright notice which appears on the original copy.

Fair Use Guidelines for Distance Education and Course Management Systems (CMS)
The copyright requirements for TEACH and Course Management Systems (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 beyond the end of the course or semester.

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, the user must obtain copyright permission.

If a user places copyrighted material in an electronic environment or digital transmission, that material must be secured for appropriate use and view by only those persons enrolled in the course. This is could be done through the application of a password or PIN number protection.

The College bears the responsibility to provide the technology required to prevent copying of copyrighted material beyond the acquired permission. Users must work with the appropriate College entities to set up the protections as required by law and College policy.

Copyright and Foreign Works
The U.S. is a member of the leading international copyright treaty, the Berne Convention. As such, when the College 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.).

Obtaining Copyright Permission
There are two primary options for obtaining permission to use a work: 1.) to contact the copyright holder directly, or 2.) to contact a copyright clearance center.

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 Assistant to the Chancellor for Legal Resources 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.

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

If permission is denied, the material must not be reproduced or else the user is in violation of federal copyright law and College policy. Not receiving an answer to a copyright request is not the same as receiving permission. Copyrighted material should not be reproduced if permission to copy them has not been received.

Royalty Fees
Prior to reproducing a copyrighted work which requires royalty fees to be paid to the copyright holder, the employee must receive the funding permission from their supervising dean and funds from the department.

Licenses and Contractual Agreements
The College regularly purchases many licenses and agreements for express permission to use copyrighted materials in an educational context – for example, a link on a faculty member’s course page to a full-text journal article may be permissible if the College has a license which allows such access.

Users can find out about College licenses and contractual agreements from the following areas:

Libraries and Learning Centers
Information Technology and Academic Computing Centers
Faculty Service Centers
Disabled Student Resources
The Assistant to the Chancellor for Legal Resources

Resources
Users can find resources about copyright laws and College policies from the following areas:

Libraries and Learning Centers
Information Technology and Academic Computing Centers
Faculty Service Centers
Disabled Student Resources
The Assistant to the Chancellor for Legal Resources

OUTCOMES
College employees and students will be knowledgeable on copyright laws, appropriate copying practices and they will have information and resources available to guide all use of copyrighted materials.