Chipola College Copyright Procedure Introduction

Chipola College Policy 1.090, Copyright Policy for Materials Developed, states that it is the policy of the Board that the College as an entity and its employees as individuals conform to the provisions of Florida Statutes and the U.S. Code in respect to copyright of materials in all forms. The policy further requires that the President shall cause a procedure to be developed for implementation of the policy relative to the daily operation of the College and those penalties for violation of the policy which penalties shall be published in the Procedures Manual.

The Federal requirements are found in the United States Copyright Law of 1976, as amended (Title 17, United States Code). In addition educators, including representatives of higher education along with publishers, developed a set of minimum standards of fair use which are set forth in the "Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions with Respect to Books and Periodicals" (the Ad Hoc Committee Guidelines). These two sources are the primary basis for the Chipola College copyright procedures.

Background

Copyright protection is intended to protect a person's unique way of expression. Copyright is a form of legal protection for authors of original works, including literary, dramatic, musical, artistry, and other intellectual products. Section 106 of the Copyright Act generally gives the owner of the copyright the exclusive right to do the following and to authorize others to do so:

• Reproduce copies of the work;
• Prepare derivative works based upon the copyrighted work;
• Distribute copies of the work by sale, rental, lease or lending;
• Publicly perform the work;
• Publicly display the work.

The exclusive rights under the copyright law are not absolute. The law makes exceptions for copying done to advance research or education. These limitations are found in the "fair use" doctrine. In addition, certain works are not protected by copyright, including works that lack originality; logical and comprehensive compilations such as telephone book; unoriginal reproductions of public domain works; works in the public domain; free ware which is expressly available free of restrictions; United States Government works; facts; and ideas, processes, methods and systems described in copyrighted works.

Fair Use Doctrine

Section 107 of the United States Copyright act of 1976 describes "fair use" as follows:

"Not withstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies, photo records or by any other means specified in 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 determined shall include:

• The purpose and character of the uses, including whether such use is of a commercial nature or is for non-profit educational purposes;
• The nature of the copyrighted works.
• 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."

Based upon the "fair use" criteria established in the Copyright Act and the Ad Hoc Committee Guidelines, Chipola College has established the following criteria and procedures for the reproduction and use of copyrighted materials:

I. Copying of Books, Periodicals and Coursepacks

Single Copying for Faculty Members:

A single copy may be made of any of the following by or for a faculty member at his/her request:

• A. A chapter from a book
• B. An article from a periodical or newspaper
• C. A short story, short essay or short poem, whether or not from a collective work;
• D. A chart, graph, diagram, drawing, cartoon, or picture from a book, periodical or newspaper.

Multiple Copies for Classroom Use:

Multiple copies (not to exceed in any event more than one copy per student in a course) may be made by or for a faculty member giving the course for classroom use or discussion, provided that:

• The copying meets the tests of brevity and spontaneity;
• Meets the cumulative effect test; and
• Each copy includes a notice of copyright.

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; 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; (The numerical limits stated in A and B may be expanded to permit the completion of an unfinished line of a poem or of an unfinished prose paragraph).
• Illustration: One chart, graph, diagram, drawing, cartoon, or picture per book or per periodical issue; and
• 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. 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 not containing more than 10% of the words found in the text thereof, may be reproduced.

Spontaneity:

• The copying is at the instance and inspiration of an individual faculty member; 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 college 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; and
• There shall not be more than nine instances of such multiple copying for one course during one class term. (The limitations stated in B and C do not apply to current news periodicals and newspapers and current news sections of other periodicals).

Notwithstanding any of the above-noted information from the section entitled "Multiple Copies for Classroom Use", the following is 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 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;
• No charge shall be made to the student beyond the actual cost of the photocopying;
• Copying shall not:

 

II. Copying Films and Videos

Classroom Use

Possession of a film or video does not confer the right to show the work. The copyright owner specifies, at the time of purchase or rental, the circumstances in which a film or video may be "performed". For example, videocassettes from a video rental outlet usually bear a label that specifies "Home Use Only". However, whatever their labeling or licensing, use of these media is permitted in an educational institution so long as certain conditions are met. Section 110 (1) of the Copyright Act of 1976 specifies that the following is permitted:

Performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images is given by means of a copy that was not lawfully made...and that the person responsible for the performance knew or had reason to believe was not lawfully made.

Additional text of the Copyright Act and portions of the House Report (94-1476) combine to provide the following, more detailed list of conditions:

A. They must be shown as part of the instructional program.

B. They must be shown by students, instructors, or guest lecturers.

C. They must be shown either in a classroom or other school location devoted to instruction such as a studio, workshop, library, gymnasium, or auditorium if it is used for instruction.

D. They must be shown either in a face-to-face setting or where students and teacher(s) are in the same building or general area.

E. They must be shown only to students and educators.

F. They must be shown using a legitimate (that is, not illegally reproduced) copy with the copyright notice included.

Further, the relationship between the film or video and the course must be explicit. Films or videos, even in a "face-to-face" classroom setting, may not be used for entertainment or recreation, whatever the work's intellectual content.

Use Outside the Classroom

Besides use in classrooms, videocassettes and videodiscs that are owned by the College may ordinarily be viewed by students, faculty or staff at workstations or in small-group rooms.. These videos may also be viewed at home (e.g., in a dorm room), so long as no more than a few friends are involved. Larger audiences, such as groups that might assemble in a residence hall living room, require explicit permission from the copyright owner for "public performance" rights. No fees for viewing a video are permitted even when public performance rights are obtained.

Copying Videotapes / Off-Air Recording of Broadcasts, Including Satellite TV

Copying videotapes without the copyright owner's permission is illegal. An exception is made for libraries to replace a work that is lost or damaged if another copy cannot be obtained at a fair price [Section 108 of the Copyright Act of 1976]. Licenses may be obtained for copying and off-air recording. Absent a formal agreement, "Guidelines for Off-the-Air Recording of Broadcast Programming for Educational Purposes", an official part of the Copyright Act's legislative history, applies to most off-air recording:

A. Videotaped recordings may be kept for no more than 45 calendar days after the recording date, at which time the tapes must be erased.

B. Videotaped recordings may be shown to students only within the first 10 school days of the 45-day retention period.

C. Off-air recordings must be made only at the request of an individual instructor for instructional purposes, not by staff in anticipation of later requests.

D. The recordings are to be shown to students no more than two times during the 10-day period, and the second time only for necessary instructional reinforcement.

E. The taped recordings may be viewed after the 10-day period only by instructors for evaluation purposes, that is, to determine whether to include the broadcast program in the curriculum in the future.

F. If several instructors request videotaping of the same program, duplicate copies are permitted to meet the need; all copies are subject to the same restrictions as the original recording.

G. The off-air recordings may not be physically or electronically altered or combined with others to form anthologies, but they need not necessarily be used or shown in their entirety.

H. All copies of off-air recordings must include the copyright notice on the broadcast program as recorded.

I. These guidelines apply only to nonprofit educational institutions, which are further expected to establish appropriate control procedures to maintain the integrity of these guidelines.

Certain public broadcasting services (Public Broadcasting Service, Public Television Library, Great Plains National Instructional Television Library, and Agency for Instructional Television) impose similar restrictions but limit use to only the seven-day period following local broadcast .

III. Educational Uses of Music

A. Permissible Uses

1. Emergency copying to replace purchased copies which for any reason are not available for an imminent performance provided purchased replacement copies shall be substituted in due course.

2. 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.

3. Printed copies which have been purchased may be edited or simplified provided that the fundamental character of the work is not distorted or the lyrics, if any, altered or lyrics added if none exist.

4. 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.

5. 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.)

B. Prohibitions

1. Copying to create or replace or substitute for anthologies, compilations or collective works.

2. Copying of or from works intended to be "consumable" in the course of study or of teaching such as workbooks, exercises, standardized tests and answer sheets and like material.

3. Copying for the purpose of performance, except as in A (1) above.

4. Copying for the purpose of substituting for the purchase of music, except as in Al and A2 above.

5. Copying without inclusion of the copyright notice which appears on the printed copy.

IV. Reproduction of Libraries and Archives

A. Notwithstanding the provisions of section 106, it is not an infringement of copyright for a library or archives, or any of its employees acting within the scope of their employment, to reproduce no more than one copy or phonorecord of a work, or to distribute such copy or phonorecord, under the conditions specified by this section, if-

1. the reproduction or distribution is made without any purpose of direct or indirect commercial advantage;

2. the collections of the library or archives are (i) open to the public, or (ii) available not only to researchers affiliated with the library or archives or with the institution of which it is a part, but also to other persons doing research in a specialized field; and

3. the reproduction or distribution of the work includes a notice of copyright.

B. The rights of reproduction and distribution under this section apply to a copy or phonorecord of an unpublished work duplicated in facsimile form solely for purposes of preservation and security or for deposit for research use in another library or archives of the type described by clause 2 of subsection A, if the copy or phonorecord reproduced is currently in the collections of the library or archives.

C. The right of reproduction under this section applies to a copy or phonorecord of a published work duplicated in facsimile form solely for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost, or stolen, if the library or archives has, after a reasonable effort, determined that an unused replacement cannot be

obtained at a fair price.

D. The rights of reproduction and distribution under this section apply to a copy, made from the collection of a library or archives where the user makes his or her request or from that of another library or archives, of no more than one article or other contribution to a copyrighted collection or periodical issue, or to a copy or phonorecord of a small part of any other copyrighted work, if-

1. the copy or phonorecord becomes the property of the user, and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research; and

2. the library or archives displays prominently, at the place where orders are accepted, and includes on its order form, a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation.

E. The rights of reproduction and distribution under this section apply to the entire work, or to a substantial part of it, made from the collection of a library or archives where the user makes his or her request or from that of another library or archives, if the library or archives, has first determined, on the basis of a reasonable investigation, that a copy or phonorecord of the copyrighted work cannot be obtained at a fair price, if-

1. the copy or phonorecord becomes the property of the user, and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research; and

2. the library or archives displays prominently, at the place where orders are accepted, and includes on its order form, a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation.

F. Nothing in this section-

1. shall be construed to impose liability for copyright infringement upon a library or archives or its employees for the unsupervised use of reproducing equipment located on its premises: Provided, That such equipment displays a notice that the making of a copy may be subject to the copyright law;

2. excuses a person who uses such reproducing equipment or who requests a copy or phonorecord under subsection D from liability for copyright infringement for any such act, or for any later use of such copy or phonorecord, if it exceeds fair use as provided by section 107;

3. shall be construed to limit the reproduction and distribution by lending of a limited number of copies and excerpts by a library or archives of an audiovisual news program, subject to clauses 1, 2, and 3 of subsection A; or

4. in any way affects the right of fair use as provided by section 107, or any contractual obligations assumed at any time by the library or archives when it obtained a copy or phonorecord of a work in its collections.

G. The rights of reproduction and distribution under this section extend to the isolated and unrelated reproduction or distribution of a single copy or phonorecord of the same material on separate occasions, but do not extend to cases where the library or archives, or its employee-

1. is aware or has substantial reason to believe that it is engaging in the related or concerted reproduction or distribution of multiple copies or phonorecords of the same material, whether made on one occasion or over a period of time, and whether intended for aggregate use by one or more individuals or for separate use by the individual members of a group; or

2. engages in the systematic reproduction or distribution of single or multiple copies or phonorecords of material described in subsection D:

Provided, That nothing in this clause prevents a library or archives from participating in interlibrary arrangements that do not have, as their purpose or effect, that the library or archives receiving such copies or phonorecords for distribution does so in such aggregate quantities as to substitute for a subscription to or purchase of such work,

H. The rights of reproduction and distribution under this section do not apply to a musical work, a pictorial, graphic or sculptural work, or a motion picture or other audiovisual work other than an audiovisual work dealing with news, except that no such limitation shall apply with respect to rights granted by subsections B and C, or with respect to pictorial or graphic works published as illustrations, diagrams, or similar adjuncts to works of which copies are reproduced or distributed in accordance with sub-sections (d) and (e).

V. Distance Education

In addressing performance rights for teaching students through distance education, three (3) sections of the Copyright Act are instructive: Section 110(1), Section 110(2), and Section 107 ("fair use").

A. Section 110(1) provides that the following are not infringements of copyright with regard to face to face teaching activities:

1. performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made is not infringement of copyright.

B. By contrast, Section 2, as amended in 2002, (the Technology, Education and Copyright Harmonization Act of 2002) facilitates the use of copyrighted material in distance education, and provides that the following are not infringements of copyright with regard to distance learning:

1. Except with respect to a work produced or marketed primarily for performance or display as part of mediated instructional activities transmitted via digital networks, or a performance or display that is given by means of a copy or phonorecord that is not lawfully made and acquired under this title, and the transmitting government body or accredited nonprofit educational institution knew or had reason to believe was not lawfully made and acquired, the performance of a nondramatic literary or musical work or reasonable and limited portions of any other work, or display of a work in an amount comparable to that which is typically displayed in the course of a live classroom session, by or in the course of a transmission, if -

a. the performance or display is made by, at the direction of, or under the actual supervision of an instructor as an integral part of a class session offered as a regular part of the systematic mediated instructional activities of a governmental body or an accredited nonprofit education institution;

b. the performance or display is directly related and of material assistance to the teaching content of the transmission;

c. the transmission is made solely for, and, to the extent technologically feasible, the reception of such transmission is limited to -

(i) students officially enrolled in the course for which the transmission is made; or

(ii) officers or employees of governmental bodies as a part of their official duties or employment; and

d. the transmitting body or institution -

(i) institutes policies regarding copyright, provides informational materials to faculty, students, and relevant staff members that accurately describe, and promote compliance with, the laws of the United States relating to copyright, and provides notice to students that materials used in connection with the course may be subject to copyright protection; and

(ii) in the case of digital transmissions -

(I) applies technological measures that reasonably prevent-

(aa) retention of the work in accessible form by recipients of the transmission from the transmitting body or institution for longer than the class session; and

(bb) unauthorized further dissemination of the work in accessible form by such recipients to others; and

(II) does not engage in conduct that could reasonable be expected to interfere with technological measures used by copyright owners to prevent such retention or unauthorized further dissemination.

The Guidelines for Distance Learning pursuant to Section 110(2) of the Copyright Act are as follows:

In general, faculty who want to incorporate works into digital transmissions for instruction purposes must:

A. Avoid use of commercial works that are sold or licensed for purposes of digital distance education;

B. Avoid use of pirated works, or works where you otherwise have reason to know the copy was not lawfully made;

C. Generally limit use of works to an amount and duration comparable to what would be displayed or performed in a live physical classroom setting. In other words, TEACH does not authorize the digital transmission of textbooks or coursepacks to students;

D. Supervise the digital performance or display, make it an integral part of a class session, and make it part of a systematic mediated instructional activity. In other words, the faculty should interactively use the copyrighted work as part of a class assignment in the distance education course. It should not be an entertainment add-on or passive background/optional reading;

E. Use software tools provided by the university to limit access to the works to students enrolled in the course, to prevent downstream copying by those students, and to prevent the students from retaining the works for longer that a "class session;"

F. Apply the "fair use" criteria where the distance learning guidelines do not cover the proposed activity.

G. Notify the students that works may be subject to copyright protection and that they may not violate the legal rights of the copyright holder.

VI. Copyright Committee

A. The college president shall appoint a Copyright Committee consisting of the Vice President for Instructional and Student Affairs, the Ethics and Compliance Officer, the Library Director, and the Associate Vice President for Information Services. The committee will

1. Implement the copyright policy;

2. Prepare and distribute a Faculty Copyright Manual with suggestions for faculty communication with student in their classes;

3. Conduct training programs to assure that employees are aware of the copyright law;

4. Answer questions about the copyright law;

5. Maintain appropriate records or permissions, agreements, and licenses;

6. Place appropriate copyright warning notice on or near copying equipment; and

7. Perform other related duties, as needed.

B. If the Copyright Committee is aware of copyright infringements by an employee and/or student, it will inform the individual of the infringement. If the employee and/or student continues to infringe the copyright law, the Copyright Committee shall inform the college President of the continuing infringements. The college President may take appropriate steps to stop the illegal actions.

C. The college reserves the right to refuse to fulfill a request to copy material if, in its judgment, fulfillment of the request would lead to violation of the copyright law.

VII. Violations

 

Under federal law, owners of copyrights can attempt to halt infringement by suing for injunctions, impounding or destruction of infringing articles, and can seek costs and attorneys fees. Additionally, they can seek to recoup actual money damages suffered by the copyright owners as well as the infringer's profits. When there are only nominal monetary losses, owners can, instead of seeking their actual damages, claim "statutory" damages of up to $10,000.00 (or up to $50,000.00 if the infringement was "willful"). The College will defend an employee who photocopies in the course and scope of his or her employment duties, unless the copying was a "willful" violation.

Even if the copying is held to infringe, the Copyright Act exempts employees of non-profit educational institutions, libraries, or archives from statutory damages, if the employee believed that the copying was a fair use and had reasonable grounds for that belief. Adhering to the guidelines in this document should afford reasonable grounds for believing one is engaged in "fair use".

It is College policy that violations of College copyright procedure may result in denial of access privileges, subject to the due process rights of individuals.

 

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