The purpose of the Kirtland Community College (“Kirtland”) Copyright Compliance Policy is to provide a summary of U.S. copyright law as it relates to the use of text-based copyright-protected works in the classroom, online and library at Kirtland, and to provide guidelines and procedures for obtaining copyright permission to use these works.
U.S. copyright law contains many gray areas, and the goal of this policy is to provide Kirtland administrators, faculty, librarians, students, employees, and others with a standard approach for addressing complex copyright issues. This policy covers classroom issues such as photocopying, online and distance education, and course packs. It also covers library uses for print and electronic reserves, Interlibrary Loan (“ILL”) and document delivery.
This policy provides practical advice and procedures on copyright-related matters; however, it is not a substitute for legal advice, and proper legal advice should be obtained when necessary. Please initially contact the Kirtland Library with copyright questions at: 989-275-5000 ext. 246 or via e-mail at email@example.com.
WHAT IS COPYRIGHT?
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). Persons who are not copyright holders for a particular work, as determined by the law, 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. For more information on copyright, visit: http://www.copyright.gov/circs/circ01.pdf or http://www.copyright.gov/title17/
WHAT IS PROTECTED BY COPYRIGHT?
The rights granted by the Copyright Act are intended to benefit “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 that a person may come across—including books, magazines, journals, newsletters, maps, charts, photographs, graphic materials, and other printed materials; unpublished materials, such as analysts’ and consultants’ reports; 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 includes many materials freely available to the public on-line. Among the exclusive rights granted to those “authors” are the 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 holder’s 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.
In the U.S., 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. For more information on copyright duration, visit: http://www.copyright.gov/circs/circ15a.pdf or http://www.unc.edu/~unclng/public-d.htm
A provision for fair use is found in the Copyright Act at Section 107. Additional information on fair use may be found at: http://www.copyright.gov/title17/ and http://www.copyright.gov/circs/circ21.pdf. 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. If the reproduction is for one of these purposes, a determination as to whether the reproduction is fair use must be made based upon four factors:
- The purpose and character of use (principally, whether for commercial or nonprofit educational use);
- The nature of the copyright-protected work;
- The amount and substantiality of the portion used; and
- The effect of the use being evaluated upon the potential market for or value of the copyright-protected work.
Fair use is an ambiguous concept and the law does not state exactly what uses of a copyrighted work will be considered fair use under the law and may therefore be used without obtaining permission. Fair use requires a very circumstance-specific analysis as to whether a particular use or reuse of a work may indeed be considered fair use. Contact the Kirtland Library with copyright questions at: 989-275-5000 ext. 246 or via e-mail at firstname.lastname@example.org.
To avoid confusion and minimize the risk of copyright infringement, Kirtland 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, typically occurring at the instructor’s discretion – 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.
- 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, permission should be obtained to use the work from the copyright holder or its agent.
TYPES OF USE
Face to Face Teaching
Instructors or students may perform or display a copyrighted work in the course of face to face teaching and learning activities, either in the classroom or a similar instructional venue. This right to perform or display copyrighted works, however, does not provide reproduction rights in excess of those discussed in the remainder of this policy.
Based on Kirtland’s fair use analysis, classroom handouts fall into two categories; one that requires permission and one that does not. If the handout is a new work for which a person could not reasonably be expected to obtain permission in a timely manner and the decision to use the work was spontaneous, the work may be used 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; copyright permission must be obtained to use the work. The Kirtland Library will assist in obtaining permission and will maintain records of all permissions granted to the college.
Advance permission of the copyright holder is required for the use of all articles, chapters and other individual works reproduced in any print or electronic course pack. Copyright permission for course packs is usually granted by the academic period. To reuse a course pack in subsequent academic periods (e.g.: semester, quarter, trimester, etc.), permission will, most likely, need to be obtained 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.
The faculty member will timely obtain permission for use of copyrighted materials in course packs. Deferring responsibility for copyright permission will not provide protection against a claim of copyright infringement. The Kirtland Library will assist in obtaining permission and the faculty member will provide a copy of the permission granted so that the Kirtland Library can maintain records of all permissions granted to the college.
Course Materials for Disabled Students
Postsecondary institutions may be legally obligated to provide access to course materials in alternative formats to enrolled students with certain physically-based disabilities. Kirtland will comply with Section 107 of the Copyright Act and the Chafee Amendment (1996) when providing course materials in alternative formats to eligible students with disabilities.
If the Kirtland Library owns a copy of a publication, Kirtland Library staff may place that copy on reserve without obtaining copyright permission. If the Kirtland Library staff wishes to reproduce additional copies of a work and place them on reserve for students to review, in either paper or electronic format, the Kirtland Library staff must obtain copyright permission.
Photocopying In the Library
It is permissible to photocopy copyright-protected works in the Kirtland 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 Kirtland 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 Kirtland 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 Kirtland Library must display the register’s 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 Kirtland 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 Kirtland 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 Kirtland Library staff 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 the register’s notice at the place library users make their reproduction requests to the library.
PHOTOCOPYING FOR STUDENTS
The Kirtland Library staff may make reproductions for library users (students, faculty, etc.), provided the following criteria are met:
- The library makes one reproduction of an article from a periodical or a small part of any other work.
- The reproduction becomes the property of the library user.
- The library has no reason to believe that the reproduction will be used for purposes other than private study, scholarship and research.
- The library displays the register’s notice at the place library users make their reproduction requests to the library.
PHOTOCOPYING BY STUDENTS
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.
Document Delivery Services
It is important to maintain a distinction between ILL and Document Delivery Services (DDS). Photocopying for DDS requires copyright permission.
Interlibrary Loan (ILL)
The Kirtland 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. Kirtland follows the National Commission on New Technological Uses of Copyrighted Works (CONTU) guidelines for defining “aggregate quantities.” The CONTU 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 CONTU.
If the articles or items being copied have been obtained through a digital license, the Kirtland Library staff must check the license to see under what terms and conditions, if any, interlibrary loan is permitted.
Distance Education and Course Management Systems
In 2002, the Technology, Education and Copyright Harmonization (TEACH) Act became law and expanded the latitude universities, including Kirtland, have for the performance and display of copyright-protected materials in a distance education environment, including through the use of a Course Management System (CMS).
The copyright requirements for TEACH and 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 for extended periods of time. 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, copyright permission must be obtained.
Peer-to-Peer File Sharing
Kirtland will comply with all regulations of the Higher Education Act of 1965 (HEA) concerning Peer-to-Peer File Sharing (i.e. illegal downloading of copyrighted materials by students) including the development and dissemination of a plan to combat unauthorized distribution of copyrighted materials and intellectual property as well as provide alternatives to illegal downloading and disciplinary actions for violations. The plan will cover both students and Kirtland employees.
Copyright and Foreign Works
The U.S. is a member of the leading international copyright treaty, the Berne Convention. As such, when Kirtland 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.). Copyright Clearance Center has many reciprocal licenses to allow use of materials from other countries.
Ownership of materials created, prepared, and produced under the auspices of the college by a faculty member are spelled out as per the full-time faculty Master Agreement during which the materials were created.
Ownership of materials created, prepared, and produced under the auspices of the college by other faculty (adjunct, part-time, and emeriti) will fall under the full-time faculty Master Agreement during the time the materials were created.
Ownership of materials created by staff under the auspices of the college as part of their job responsibilities will be considered “work for hire”. The copyright of such work belongs to the college.
Ownership of materials created, prepared, and produced by students (term papers, speeches, etc.) enrolled in courses at the college belongs to the student. If the student creates materials while employed at the college, the copyright of such work belongs to the college.
Ownership of materials created at the request of the college by any combination of the above groups and/or by persons who are not Kirtland faculty, staff, or students will be considered “work for hire”. The copyright of such work belongs to the college.
HOW TO OBTAIN COPYRIGHT PERMISSION
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). The Kirtland Library will assist in obtaining permission and will maintain records of all permissions granted to the college.
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 the materials are needed to be used. Often, Copyright Clearance Center is the quickest one-stop resource for obtaining copyright permission.
Fact Finding Questions
After it has been determined that copyright permission is required, the copyright holder must be located. If the copyright holder is not listed on the work, locating the appropriate person or entity to grant permission may take some investigative and creative work.
The Copyright Office of the Library of Congress (www.loc.gov) may be of assistance in locating a copyright owner if the work is registered. Note, however, that copyright is automatically granted to all works upon their being written down and that registration with the Copyright Office is not required.
There are two primary options for obtaining permission to use the work: contacting the copyright holder directly or contacting the Copyright Clearance Center. The Kirtland Library will maintain an account with Copyright Clearance Center (www.copyright.com).
Information in the Permission Request
The copyright holder or its agent will require the following information in order to provide 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 the item is to be reproduced (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
REPORTING SUSPECTED INFRINGEMENTS
If anyone at Kirtland, including a student, is using any copyright-protected material without the permission of the copyright holder, the infringements should be immediately reported to the Kirtland Library at: 989-275-5000 ext. 246 or via e-mail at email@example.com.
Adopted March 1992
Revised April 8, 1999
Revised March 18, 2010