LESLEY UNIVERSITY COPYRIGHT AND FAIR USE GUIDELINES - Question & Answer

Lesley University is a community made up of authors and users of copyrighted materials. As discussed in the Lesley University Policy on Use of Copyrighted Works (the "Policy"), the University respects and honors the creative process that copyright laws protect. The University also encourages the legitimate "fair use" of copyrighted materials in support of its underlying mission.

These guidelines supplement the Policy and are designed to inform all members of the Lesley community of the basic tenets of copyright law and of the University's position on specific issues. It is critical that all faculty, staff and students understand and honor the copyright considerations discussed herein. All members of the community are strongly encouraged to review the Policy and the guidelines. The guidelines are set forth in a question and answer format for ease of review.

Faculty, staff or students who need further information and advice on this topic should contact the Library Director. In addition, a list of helpful, on-line sites that offer valuable and comprehensive information on copyright and fair use, particularly in the educational setting, is available at the end of this document.

Q1: What is copyright?

A1: Copyright is the right of an author to control use of his or her work by others. ("Author" is the generic term that the law uses for the person who creates any copyrightable work in any medium). Copyright does not protect ideas; it protects the expression of the ideas regardless of the medium - for example, in print, on audiovisual tapes or CDs, in digital storage files or in cyberspace.

Q2: What works are protected by copyright?

A2: The scope of copyright is very broad. It covers traditional forms such as books, periodicals, music, paintings, photography, and sculpture, but it also covers work in newer media such as video, sound recordings, computer programs, web sites and databases. The only requirement is that an author have "fixed" (i.e. stored) some sort of original expression in a tangible medium. Short phrases and the like are generally considered too small to qualify as "works" and are thus outside copyright. But the standard of what is original is very low. The "authorship" in a database, for example, lies in the selection and arrangements of information, so long as there is some trace of creativity. Thus, a course pack or other anthology is copyright protected - so long as the author has permission to reproduce and distribute its components.

The only works of authorship that copyright does not protect are those created by employees of the U.S. Government and those works whose copyrights have expired. The rules on expiration of copyrights are complex. Members of the community should refer to the chart, "When Works Pass Intointo the Public Domain", developed by Lolly Gasaway and Tom Field at http://www.unc.edu/~unclng/public-d.htm.

In the case of works published in the United States, only those published prior to 1923 or prior to 1978 and lacking a copyright notice can safely be assumed to be in the "public domain." (A copyright notice is the notice usually found inside the cover of a book or on the packaging of software, videos, etc.; a typical notice would be in the form of "© 1960 John Smith.") Furthermore, because the term of copyright was recently extended for an additional twenty years, any work still under copyright in 1998 will continue to be protected at least through 2018. (As part of the recent term extension, new works will be protected for seventy years beyond the author's lifetime, rather than fifty, as had been the rule since 1978).

If a work was published abroad prior to 1923, it is also generally safe to assume that it is out of copyright. However, absence of copyright notice in a foreign publication published since 1923 cannot be relied on.

It is important to remember that the copyright in a "derivative work" such as a translation of or revision has a separate copyright from the underlying work. Thus, an original German text from 1910 would be in the public domain, but a third edition published in 1930 would not be, and a 1950 English translation of it might well not be. In the realm of visual arts, photographs of paintings are not copyrightable because they contain no separate creativity, whereas a photograph of a sculpture probably is copyrightable due to the photographer's choice of angle, lighting, etc.

Q3: Does copyright protect all the contents of a work?

A3: No. It protects only the author's "expression" of his or her ideas, or information, not the ideas or information themselves. Thus, the facts in a database, or the scholarly theories in a monograph, are free for anyone to use, but the author's expression of them cannot be copied.

What constitutes "expression" varies depending on the type of work. In a compilation of facts, it is the "selection and arrangement" of data; in a textual work, it is the words the author chooses. However, expression will not be protected where it would prevent the communication of the underlying facts or ideas. For example, a simple linear graph may be the only reasonable way to show the correlation of two data elements; in that case, copyright would not protect the graph.

Q4: Does a copyrighted work always contain a copyright notice?

A4: No. Since March 1, 1989, the law no longer requires authors/creators to place a copyright notice in their works. Consequently, the absence of a copyright notice in any work published after that date should not be considered a broad invitation to use the work without the creator's permission. Works published between 1978 and March 1, 1989 should contain a copyright notice, but it is not safe to rely on the absence of one.

Q5: Is every educational use of material, even if copyrighted, lawful?

A5: No. Not every use of copyrighted material in the classroom is exempt from the reach of copyright laws. Some uses are specifically exempted. Beyond that, every educator is responsible for determining whether the materials he or she seeks to use in the classroom falls under the "fair use" exception to the United States Copyright Law of 1976, as amended (Title 17, United States Code, Section 107).

Q6: What is "fair use"?

A6: "Fair use" in the educational context means that a copyrighted work may be used or copied for educational purposes without obtaining permission of the owner of the copyright. Fair use is a narrow exception, which must be invoked with caution. There must be sound pedagogical reasons for the use or copying of a copyrighted work. In other words, the primary purpose of the copying or use may not be to avoid the purchasing of a copy of the work.

The factors to be considered in determining whether the use of a copyrighted work without permission constitutes "fair use" must include:

1. the purpose and character of the use (for example, whether the use is commercial or for non-profit educational purposes);
2. the nature of the copyrighted work (educational/informational or recreational/creative);
3. the amount and "substantiality" of the portion used; and the effect of the use of the copyrighted work without permission uponthe potential market for or value of the copyrighted work.

These four factors must be considered together and balanced against each other to determine whether a use of a copyrighted material without permission is indeed, fair use.

Q7: What would constitute "fair use" in the classroom?

A7: Like other not-for-profit educational institutions, Lesley relies on the Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions with Respect to Books and Periodicals for guidance on the issue of "fair use" in photocopying of materials for classroom distribution. A copy of the Guidelines for Classroom Copying is available in the library and also may be found at http://www.loc.gov/copyright/circs/circ21.pdf. It is important that all Lesley faculty, staff and students review the Guidelines for Classroom Copying.

The key concepts in the Guidelines for Classroom Copying are "brevity" and "spontaneity". The Guidelines provide a safe harbor. Outside that harbor other uses that are brief and spontaneous may be lawful. For example, the word and/or page limits in the Guidelines for Classroom Copying are not intended to define the maximum of copying that can qualify as fair use. However, Lesley University policy is that educators should seek permission from the copyright owner for uses outside the Guidelines. Individuals who have questions can be referred to the Library Director.

A number of Internet sites discuss the fair use exception at length with examples. The Checklist for Fair Use is especially helpful and can be found at
http://www.copyright.iupui.edu/. A list of sites is appended in response to Question 19. All community members are encouraged to review the sites for further information.

Q8: Can printed materials be photocopied by faculty for use by students?

A8: Copyrighted materials may be copied and disseminated to students when the copyright owner permits copying, or the proposed use of the material falls within the boundaries of the fair use exception.

Certain professional organizations include permission to copy articles from their journals as a membership benefit. Sometimes individual authors will give permission to copy their articles when contacted directly; this permission may be relied on only if the author is the person listed in the copyright notice on the work. With this exception, permission outside the bounds of fair use usually must be paid for.

Q9: Does crediting the creator of the work avoid copyright infringement?

A9: No. Permission and acknowledgement are not the same thing. You can protect yourself from a charge of plagiarism by giving credit where it is due, but you cannot insulate yourself from a charge of copyright infringement merely by acknowledging the work's creator. Unless your proposed use of the material falls within the "fair use" exception, you will need to obtain the author creator's permission to duplicate or disseminate it to others.

Q10: Can faculty show videos and slides in the classroom?

A10: The law specifically permits educators to perform or display slides, videos, software, recorded music and other works in a classroom (broadly defined) in the course of face-to-face teaching activities. In the case of a video or other motion picture, the copy used has to have been lawfully made.

Implicit in the classroom exception is the need for the educator to be personally present and using the slide, video or other material as a teaching tool. This does not mean, however, that students incur any liability by viewing these materials on their own time. Home viewing, provided the copies are lawfully made, is under the scope of fair use. Viewing in the library carrels of visual materials from the library's collection, or materials rented by faculty for student use in connection with course instruction, is also a fair use.

The Kresge Center in the Ludcke Library has an extensive collection of circulating audiovisual materials for patron use. Whether these materials may be viewed by groups or individuals, by teachers and/or by students, and inside or outside the Kresge Center itself, is determined on a case-by-case basis. Anyone taking such materials from the Center must observe the restrictions stipulated by the Center.

Circulating tapes most usually include "public performance" rights; those tapes limited to "home use" or "classroom use only" are labeled. Many AIB videotapes have only "home use" rights; these tapes are limited to viewing in AIB classrooms or library carrels.

The Kresge Center will also, upon request, tape programs off-air for limited classroom use. The Center follows the Guidelines for Off-Air Videotaping for Educational Purposes, a copy of which may be found at the Center or at
http://www.loc.gov/copyright/circs/circ21.pdf. Faculty members who do not have ready access to the Kresge Center should refer to these guidelines and supplemental materials available at the Center.

Visual material and photographic reproductions of paintings, drawings, and other two-dimensional works used in the classroom must also be lawfully made and used in the course of face-to-face teaching activities. The library at the Art Institute of Boston at Lesley University has an extensive collection of 35mm slides and other photographic reproductions of visual art for use by faculty and students. In order to ensure compliance with copyright laws, the 35mm slide collection materials must be used in University libraries or classrooms only. A digitized slide collection is available via the Ludcke Library website to all members of the community.

Q11: Can faculty let colleagues or students copy computer software from their diskettes or CD-ROMs?

A11: Almost all commercially available software comes with very strict license provisions. If the software in a faculty member's possession is something the faculty member purchased, he or she almost certainly had to indicate acceptance of those provisions by some action, such as clicking on certain buttons at the time of first use. If Lesley University acquired the software, the University is the licensee. Except in the case of a "site license" permitting use on all University computers, the license from the software vendor prohibits loading the software into any computer other than the particular individual's own. Therefore, no member of Lesley University should "share" software with anyone else without clearing this with the Vice President for Administration.

Q12: Can a community member digitize text or images by scanning them into his or her computer?

A12: If faculty, staff or students are scanning an individual journal article, book chapter, or slide for example, and are doing so for the purposes of personal scholarship, that is probably fair use. Fair use would not, however, extend to making any such digitized material available to others, even other members of the Lesley community.

Q13: Does this mean that faculty cannot post materials on the Internet for use by students?

A13: At this point, there is no consensus on when a faculty member can do this. It can be argued that posting on a site to which access is limited to students should be fair use if it amounts to the digital equivalent of permissible classroom photocopying (i.e., the equivalent of the copying authorized by the fair use guidelines discussed earlier). On the other hand, posting of digital materials in their entirety, or scanning and posting of print materials, creates a potential for damage to the copyright owner that must be taken into account. For the time being, Lesley policy is as follows:

• Material available from the publisher in digital form only may be printed out and photocopied in accordance with the Guidelines for Classroom Copying, but may not be digitally disseminated to students. Even printing out and photocopying would be improper in the unlikely event that the terms of access to the digital material forbid all downloading or printing out of the material.
• Material available in print, but obtained from the publisher in digital form, may be printed out and photocopied in accordance with the Guidelines for Classroom Copying, but may not be digitally disseminated to students.
• Material not available in digital form should not be scanned unless it is also out of print and there is a compelling pedagogical reason for distributing it to students in digital form rather than photocopy form. Material subject to such scanning must be within the guidelines in terms of brevity and spontaneity. (Note: a periodical issue is not "out of print" simply because it is not current; it must also be unavailable from the publisher's backlist).
• All digital dissemination must be by means of a secure website accessible only to currently enrolled students with passwords.
• A faculty member who makes a digital copy of a work within the above limitations must delete it from the website as soon as it is no longer needed for the class concerned (and at the latest, by the end of the semester).

Different rules will apply in the case of materials for which Lesley has obtained a site license permitting University-wide digital use of materials. Such licenses stipulate the sorts of use that are authorized.

Q14: What use can faculty make of materials on the Internet?

A14: It depends on the nature of the website where the materials are found. For example, a site maintained by a commercial publisher will typically have clearly posted rules governing the use of materials on the site, and may require the user to "click" on a license agreement. Any such terms and licenses should be strictly observed, with one proviso: unless those terms and licenses expressly forbid the printing out of materials on the site, it is Lesley University's position that the Guidelines for Classroom Copying would apply to photocopying of any printout of such materials.

On the other hand, there are many websites, such as those maintained by various universities, that offer materials with no stated restrictions. Faculty should become familiar with the website, understand its policies and follow them. If no policies are posted:

• Faculty may download material into their own computer for personal use, but may not redistribute it to others.
• Faculty should obtain permission from the webmaster of the site, or the author of the particular material, if known, before manipulating or altering such material in any way, or disseminating the material to others, even on Lesley's Intranet.

It is always permissible to direct students to a website provided that faculty members do not encourage or authorize them to make any use that the faculty member could not make him or herself. It is equally permissible to provide links to any website for students' use.

Q15: What are the rules for student use of materials on the Internet?

A15: From time to time, Lesley students may be given online access to text, audiovisual, or other materials in digital form, by an instructor or staff member of Lesley, or receive from the instructor or staff member a digital transmission of such materials. Without limitation of the general policy, the following specific guidelines apply to materials posted on the Internet:

• If the materials have been created solely by the instructor, the student will abide by any restrictions on copying, storage, distribution and other use that the instructor may set. If the instructor specifies no restrictions, the materials may be copied, stored, and distributed only within the Lesley community.
• If the materials were created by someone other than the instructor, in whole or in part, the student will not permit anyone, other than another student enrolled in the same course, to have access to the digital file, will not make copies except as necessary to do the coursework to which the materials relate, and will delete the file and all copies from his/her computer(s) at the end of the academic year.

Q16: How does the copyright law impact distance learning?

A16: At this point, tThe copyright law says very little explicitly contains two provisions regarding distance learning. The most important of these specifically permits online transmission of certain performances and displays to off-site students and classrooms, where this serves as an integral part of class instruction, is controlled by or under the actual supervision of the faculty member, and is analogous to the type of performance or display that would take place in a live classroom setting. Permissible content includes (i) performance of a non-dramatic literary or musical work, in whole or in part, (ii) performance of "reasonable and limited portions" of any other work (a play or motion picture, for example), or (iii) display of any work (e.g., showing a slide of a work of art) in an amount comparable to what is typically displayed in the course of a live classroom session. Performance need not be live, but can use media such as CDs and DVDs. However, this statutory permission does not extend to works produced or marketed primarily for use in digital distance education. The following additional rules must be met for the transmission to qualify:

• The performance or display must be directly related and of material assistance to the teaching content of the transmission.
• The transmission must be made solely for the use of students officially enrolled in the course, and, to the extent technologically feasible, the reception of the transmission must be limited to those students.
• The transmission must include technological measures that reasonably prevent (i) students' retention of the work after the class session, and (ii) unauthorized further dissemination of the work by students to other persons.
• No attempt should be made to disable technological measures embodied in the work that would prevent student retention or redistribution.
• The performance or display should not employ a "bootleg" copy or any other copy that the faculty member knows or has reason to know was not lawfully made and acquired. about distance learning. It

The University may make and store copies of the works being used for these permitted performances and displays, provided the copies are used only for that purpose. If a work to be used is in analog form, however, the University may convert it to digital form only if there is no digital version available, or if the available digital version is copy-protected so that it cannot be used for the transmission.

The second distance learning provision of the law is much narrower. It permits a faculty member, in the course of instruction, to transmit the live performance (i.e., reading) of a non-dramatic literary work, the live performance of a non-dramatic musical work, the performance of any recording (CD, etc.) of any non-dramatic musical work, or the display of any work, to distant "classrooms or similar places normally devoted to instruction." ("Display" in the case of a video or other audiovisual work means display of single frames ("stills"), not the performance of the motion picture as such). The detailed restrictions listed above do not apply in this context.

In connection with any such transmission, the faculty member can make, or permit his or her class to make, no more than 30 copies of the transmission. No further copies can be made and all copies (except for one, University archival copy) must be destroyed within seven years after the transmission.

These are the only explicit statutory permissions. Anything beyond these narrow exemptions must qualify as fair use or it will be infringement. At this point there is no consensus on what activities, beyond those specifically permitted by the statute, may qualify as fair use.

In a report to Congress, the Copyright Office has recognized that the current statutory exemptions are inadequate in the context of the new digital technologies used in distance education. (This report can be found at http://www.loc.gov/copyright/disted). As the report acknowledges, the bounds of fair use may cover activities not explicitly permitted in the statute. Congress is currently reviewing legislation to use films and songs in online instruction. However, even in the absence of statutory change, Lesley University takes the position that the following distance education modalities are fair use:

• Storage of digital material on University servers to the extent necessary to carry out the distance education concerned.
• Transmission of instruction, including any performance or display that would be permissible in the context of face-to-face teaching, to locations that serve as off-site Lesley campuses. You should take care that only registered students are permitted to view the transmission.
• Transmission of instruction to students' rooms, including any performances or displays that would be permissible in the context of face-to-face teaching, if the transmission is intended as a substitute for or adjunct to classroom activity. However, where videos or other audiovisual works are concerned, such use should be limited to excerpts intended to illustrate particular points, not as a substitution for in-class performance of an entire work.
• Permitting students to retain copies of transmission for purposes only of follow-up study in connection with the particular course concerned. Note: Students should refer to A15.

Q17: Are faculty responsible for any unlawful copying by students?

A17: Students are adults and responsible for their own actions. Faculty's only responsibility is to encourage students, by example, and/or instruction, to respect copyright laws. Faculty should be proactive in helping students understand the importance of copyright to the production of the materials on which scholarship depends. If a faculty member becomes aware of any pattern of abuse by a particular student, he or she should advise their immediate supervisor. If a student asks questions about copyright, the faculty member should refer him or her to the Policy and these guidelines.

Q18: How can faculty get permission to use copyrighted works?

A18: Obtaining permission to use copyrighted works is not as difficult as it sounds. There are services at Lesley, which can assist faculty in this important task.

Library Reserve Policy

The University Libraries has a comprehensive Faculty Reserve Policy to assist faculty members in obtaining the required permissions for placing copyrighted materials on reserve. A copy of that policy is available at University Libraries. Faculty members should contact the Head of Access Services for further information about procedures. The AIB Library also makes available a Faculty Reserve policy and questions about it can be addressed to the Head of the AIB Library.

Copyrighted media materials (audio, video, slides and so forth) to be placed on reserve are reviewed for the appropriate permissions and licensing by Kresge Center staff.

Course Packs Production

Core and adjunct faculty must go through Xan Edu Publishing Services directly in order to obtain copyright clearance for course materials. There is a 4-6 week window for new and outdated materials for this process to be completed.

A direct link to Xan Edu contains the following information: 1) a letter from the new Xan Edu representative with important contact information; 2) a procedures memo that details the steps that need to be taken in order to create a course pack; 3) guidelines for submitting materials to Xan Edu; and 4) the order form. The link is http://www.xanedu.com/.

Lesley also has established procedures to assist faculty in obtaining the required permissions for using copyrighted materials in the development of coursepacks. Faculty who wish to develop a coursepack for an on-campus course should contact the Lesley University Document Center (located at the Porter Exchange Building, 1815 Massachusetts Avenue in Cambridge, extension 8980) for assistance in obtaining the required permission and for making multiple copies. Faculty who wish to develop a coursepack for an off-campus course should contact: Grade A Notes, Inc.; tel. (614) 299-9999.

Questions: Contact Linda Glazer at (617) 349-8708

Individual Faculty Requests for Permission

Simply put, ask the owner of the copyright. Permission may be oral or written, but it is strongly suggested that you receive written permission. At the very least, faculty should document oral permission by sending a confirmation letter to the owner of the copyright. If the owner of the copyright is a publishing house, then requests for permission are best addressed in writing to the permissions desk or to the rights editor. In the request faculty should be sure to include such details as the exact sections or materials they are seeking to use; the number of copies that will be made; and how and for what period of time the copyrighted work will be used. There may be a stated fee for the use of the copyrighted material, but it may be negotiable. If there is a fee, faculty should consult with the appropriate administrator of the school in which he or she is teaching about the school policy regarding such fees.

Q19: Where can faculty, staff and students go to learn more about copyright and fair use, particularly in the classroom?

A19: The Library Staff is a resource for faculty, staff and administrators to answer questions about placing copyrighted materials on Library Reserve and can identify information sources with and for faculty. Questions concerning current classroom practice and procedures should be directed to the Dean of a school. More specific questions regarding copyright law and this policy should be directed to the Library Director.

In addition to our campus resources, many colleges and universities maintain on-line sites that offer comprehensive and valuable information about copyright and fair use. The University of Texas maintains one of the best on-line sites on the issue of copyright, fair use and obtaining permissions at http://www.utsystem.edu/ogc/intellectualproperty/l-diglib.htm. Other helpful on-line sites include the Regents Guide to Understanding Copyright and Educational Fair Use of the University System of Georgia entitled "Examples Illustrating the Application of Fair Use" at http://www.usg.edu/legal/copyright/#part2, http://www.usg.edu/legal/copyright/, which contains a wide range of relevant examples of fair and unfair uses.

For other resources see "Selected Resources Related to Copyright" attached to these guidelines. However, although the information and advice contained at websites such as these is thoughtful and often accurate, it represents particular individuals' views of fair use and does not constitute the policy of Lesley University. In the case of any doubt as to the fairness of a particular use, faculty should consult the Library Director.