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The United States Constitution (Article 1, Section 8) gives to Congress the authority to enact copyright legislation. Although we often refer to protected material as "intellectual property," the rights granted by copyright differ in several ways from other kinds of property rights. First, the Constitution specifies that Congress can only secure these rights for authors and inventors for a "limited time." Second, rather than recognize these rights as "natural" property rights, the Constitution specifies a social purpose to justify the granting of copyright - "To promote the progress of Science and useful Arts."
The current iteration of copyright, in Title 17 of the US Code, is the 1976 Copyright Act, along with important modifications made in 1998 by the Sonny Bono Copyright Term Extension Act and the Digital Millennium Copyright Act. These laws guarantee some exclusive rights to authors or their assignees:
- The right to reproduce a work
- The right to distribute a work.
- The right to make derivative works from a work.
- The right to publicly perform or display a work.
These rights are assured for a period of the life of the author plus 70 years for works by individual author, regardless of whether or not the work is "in print." Since 1989, it is not necessary that a work be registered with the government or that it display a copyright symbol or notice in order to be protected. Any work of original authorship is protected against infringement from the moment it is given fixed form (i.e. written down or recorded).
Ordinarily, copyright law is violated whenever a third party exercises one of the above rights without either the authorization of the copyright owner or express permission to do so under the law. It is the firm intention of the institutions of the Theological Consortium of Greater Columbus that all members of the seminary community obey the copyright law. The law does provide several specific exceptions to an author's exclusive rights that permit limited uses of copyrighted material without permission. These exceptions generally address the areas of classroom teaching, library functions and fair use. The guidelines that follow are an attempt to guide members of the consortium community in the appropriate application of copyright law and those exceptions.
Photocopying for Teaching and Research
Copyright law makes allowance for several kinds of photocopying which do not infringe the exclusive rights of the author or publisher.
Unrestricted Copying is permitted for these categories of material:
- Works which were published prior to 1924 can be copied without infringement because any copyright has expired.
- Works published prior to 1989 without any copyright notice do not enjoy any copyright protection. The requirement that a work have such a notice was dropped after 1989.
- Publications of the United States government are not copyrighted.
Fair UseFair Use is an exception provided to the Copyright Act to provide that certain kinds of copying, generally for the purposes of education, commentary and news reporting, will not be considered infringements of copyright. This is not a blanket exception, nor are specific instances enumerated. Rather, the Act lists four factors which must be evaluated when deciding if a particular use is fair use:
- The purpose of the use to which a copy is put. For a use to be fair use, it must be, at least, not for commercial profit. Most, but not all, educational uses meet the test of this factor.
- The nature of the work being copied. Creative works receive a stricter degree of protection then do works of a purely factual nature. In general, the works used for teaching and research are creative and thus this factor cautions great care in assuming that a particular educational use is fair use.
- The amount and substantiality of the portion used. As a general rule, it is not fair use if a large portion of a whole work is copied, or if the portion copied is so central to the whole that coping it can substitute for purchase of the complete work.
Effect on the market for the work. In order to be considered fair use, copying must not have a detrimental effect on the ability of the author and publisher to profit from their labors.
No single factor determines whether a particular use is fair use or not. Rather, courts must weight the factors in balance while examining each case. The following guidelines, however, represent some specific ways in which fair use does or does not apply in educational settings:
Regarding single copies:A single copy of the following materials, when made for the purpose of teaching, teaching preparation or personal research, is permitted:
- One chapter from a book.
- One article from a periodical.
- One short story, essay or poem. Even personal research does not justify copying a whole book or systematic copying of articles from one periodical.
For library reserves:
- Any legally obtained book, or a single photocopy of an article, may be placed on library reserve so that students in a class may read it or make their own individual copy for personal study.
- Multiple copies of a chapter or article may be placed on reserve when the size of the class and/or the timing of assignments make it necessary. In no case should more than four copies be placed on reserve. Whenever possible, the library should own at least one commercially produced copy of such works.
Multiple copies for classroom distribution:The making of multiple copies of a work for distribution to all members of a class should not be a common practice. The 1976 Copyright Act included a report in its legislative history in which publishers and educators agreed to a very restrictive set of Guidelines on Multiple Copies for Classroom Distribution. Those guidelines, which do not have the force of law, provide a "safe harbor" for such copying and apply the criteria of brevity, spontaneity and cumulative effect.
In general, these rules must be followed whenever protected material is photocopied for distribution to an entire class:
- The same material should not be distributed for more than one semester or quarter. Material being used over and over should either be purchased by the students or placed on reserve.
- Only one copy per student in the class should be made or distributed.
- A notice of the applicability of copyright law to the material should be included on or with each copy.
- No fee should be charged for such copies beyond the cost of their creation.
Such distribution must never have a significant detrimental effect on the market for the work in question. Thus, material which will be used over and over should either be purchased by the students or placed on reserve. It is necessary to obtain permission for these activities, which the courts have found to be outside the definition of fair use:
- Copying of multiple articles in order to create anthologies or "coursepacks." Generally the copy centers which make such coursepacks will be able to obtain the necessary permissions. The cost of those permissions is then included in the price of the coursepacks.
- Repetitive copying (see above).
- Copying of "consumable" material such as workbooks, exercises, tests or standardized test booklets.
Films and VideosThe Copyright Act of 1976 protects films and videos; all educational and personal use of audiovisual material must respect the rights of the copyright holder. These rights include reproduction, adaptation, distribution and public performance. The copyright owner specifies, at the time of purchase or rental, the circumstances in which a film or video may be performed. Videos from a rental outlet usually have a label that states, "Home Use Only." Such videos and videos with other labeling or licensing may be used in classroom and educational settings as long as certain conditions are met. Section 110(1) of the Copyright Act permits, "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 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 it was not lawfully made."
Classroom Use of a video or film
- The performance is allowed only for face-to-face teaching activities directly related to instruction.
- The students, teacher, instructor or guest lecturer must be in the same building.
- The performance must take place in a classroom or similar place devoted to instruction, such as a studio, workshop, library, gymnasium, or auditorium.
- The audience must be students and educators.
- The teaching activities are conducted by a nonprofit education institution.
- The copy of the video or film shown must be lawfully made and contain a copyright notice.
- Films or videos used for recreational or entertainment purposes do not meet the above requirements and therefore such performances require a performance license or written permission of the copyright holder is required.
- Patrons viewing videos on library owned equipment are limited to private performances related to classroom teaching.
- Viewing of videos labeled "for home use only" on library owned equipment by patrons is considered fair use when done in conjunction with teaching and research.
- Notices should be posted on video players in the library to educate and warn patrons about the existence of the copyright laws, such as: "Many videotaped materials are protected by copyright (17 U.S.C. section 101). Unauthorized copying may be prohibited by law.
- If institutions rent public meeting rooms to groups, the rental agreement should include a statement that the group must obtain all necessary performance licenses and indemnify the institution from failure to comply with copyright.
Loan and Duplication of Videos
- Videos may be loaned to patrons for personal use. They should not knowingly be loaded to groups for public performances.
- Copyright notice, as it appears on the label of a videotape, should not be obscured.
- Under certain circumstances, libraries may duplicate a videotape or a part thereof, but the rules of sections 107 and 108 of the Copyright Revision Act of 1976 limit duplication.
MusicIssues involving music and copyright are many and varied but center around two broad areas: the musical composition (musical work or sheet music) and recorded arrangements of music (sound recording). Most uses of music in any form: lyrics, composition, sound recordings, synchronizing with images, require the permission of the copyright holder. A sound recording is a derivative work of music composition and the creation of one requires a license from the copyright holder, usually the composer or music publisher.
PerformancesCertain performances of music in schools, libraries, churches or other nonprofit situations are not infringements and permissible under Section 110 of the copyright law. Examples include:
- Performance of a work by instructors or students in the course of face-to-face teaching activities, in a nonprofit educational institution, in a classroom or similar place (such as a library) devoted to instruction;
- Performance of a non-dramatic literary work or musical work on closed circuit television to other classrooms or to disabled students for teaching purposes only if the transmission is part of the systematic instructional activities of a non-profit educational institution, and only if the performance is directly related and of material assistance to the teaching content of the program;
- Performance of a non-dramatic literary or music work at a school concert if there is no purpose of direct or indirect commercial advantage, no fee or compensation paid to the performers, promoters or organizers, and no admission charge; if there is an admission charge, all of the proceeds must be used for educational or charitable purposes; and the performance may not take place if the copyright owner objects in writing seven days before the performance;
- Performance of a non-dramatic literary or musical works or of a dramatic-musical works of a religious nature, in the course of services at places of worship or at a religious assembly.
It is permissible to make photocopies or reproductions of copyrighted music material as follows:
- 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;
- Multiple copies of excerpts of works may be made for academic purposes other than performance, provided that such copying does not exceed 10% of the work and no more than one copy per student is made;
- 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 altered or lyrics added;
- 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 instructor;
- Asingle copy of a recording (tape, cassette, disc) of copyrighted music may be made from sound recordings owned by an educational institution or instructor for the purpose of constructing aural exercises or examinations and may be retained by the educational institution or instructor.
Although copyright law allows considerable latitude for the use of protected material in face-to-face classroom instruction, the situation becomes much more problematic when distance education, particularly using the Internet, is proposed. The law allows only limited transmission of copyrighted works via distance education, and it requires that those transmissions be sent to a classroom facility. Such transmissions may not include audiovisual material or "dramatic" literary or musical works. These rules were clearly created when distance education was a rarity, and when only video conferencing technology was imagined. The Internet makes many of these rules, especially that requiring reception at a classroom facility, obsolete.
The Digital Millenium Copyright Act required that the US Copyright office undertake a study of distance education and prepare recommendations regarding changes needed in the law. This was done in 1999, and a very workable set of recommendations was presented to Congress. Unfortunately, none of these recommendations have yet been enacted into law. So the current situation is very difficult; almost all online distance education involves technical violation of the present law, especially regarding place of reception and the making of the transitory copies which Internet technology requires.
It is to be hoped that Congress will soon clarify this situation, but in the meantime several recommendations can be made to reduce the degree of violation and to show good faith when engaging in distance education:
- Whenever possible, secure permission to use protected material in online distance education.
- As far as possible, replicate the conditions of face-to-face teaching during online instruction. Most important is the use of appropriate security measures. Passwords should be used to limit access only to students registered for the class. Protected material should never be placed on web sites that are open to anyone with a Web browser.
- In most cases, digital course materials should be stored on the academic institution's own server, not that of a commercial ISP or a courseware company.
- Never disable technological security measures in order to digitize or transmit copyrighted material.
The seminaries of the Theological Consortium of Greater Columbus prohibit the improper copying, distribution or use of licensed and/or copyrighted software. All seminary students, faculty and staff are expected to follow and comply with the policies and guidelines established for the use of computer software by their respective Information Systems/Computer Services departments.
GAINING PERMISSION TO USE COPYRIGHTED MATERIAL
If it is determined that permission to use or copy a work is required, the permission of the copyright holder must be sought. In most cases the copyright holder is very willing to approve legitimate use of material for educational and research purposes. The publisher of the work can often assist in determining who holds the copyright for the work to be copied. When contacting the copyright holder, be sure to include detailed bibliographic information regarding exactly what will be copied and give specific details regarding how this material will be used in the classroom or in publication. The Consortium recommends that permission be obtained in writing. Examples of permission forms can be found at several of the web sites listed on the accompanying bibliography. Submit the written request to the copyright holder up to eight weeks in advance of the date that the material will be used. If permission to use the work is granted, keep copies of all documentation granting permission on file and include a notice of copyright on all copies.
A major center for obtaining copyright permission and the licensing of copyright material is the Copyright Clearance Center Inc. Their web site http://www.copyright.com contains a wealth of information on all aspects of copyright and provides online forms for requesting copyright permissions and licensing. They may also be contacted at contacted at 222 Rosewood Drive, Danvers, MA 01923, 978-750-8400.
Permission to show "home use" videos outside the classroom or teaching environment requires a public performance license. Non-Profit institutions may obtain an umbrella license for the public showing of "home use" videos and videodiscs from the Motion Picture Licensing Corporation. Basic information may be obtained from their offices 5455 Centinela Avenue, Los Angeles, CA 90066, 800-462-8855.
Source for information regarding gaining permission to copy material from: Hoon, Peggy, ed. Guidelines for Educational Use of Copyrighted Materials. Pullman, Washington: Washington State University Press, c1997. p. 23-25.
COPYRIGHT AND THE INTERNET
Copyright law extends to material posted to or found on the World Wide Web and it is essential that consideration be given to these issues when creating and using web pages. Individual elements such as graphics, text, and audio each must be considered for copyright issues. A number of issues arise when creating and linking to web pages, for example, the appropriateness of linking to a homepage verses linking to an internal page within the site which may bypass banners, advertisements, etc... Additionally, issues are raised when incorporating a remote page into a page created with frames that may give the appearance that the page was not created at the original site. It is therefore essential that those working with and creating web page understand the basic issues surrounding copyright and the Internet.