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Copyright

COPYRIGHT LAW

The text of U.S. copyright law available here, which is title 17 of the United States Code, is now completely up to date, and includes the amendments in 2009 and 2010 extending the section 119 satellite statutory license (Pub. L. No. 111-118Pub. L. No. 111-144, and Pub. Law No. 111-157). It also includes the Satellite Television Extension and Localism Act of 2010, Pub. L. No. 111-175, enacted May 27, 2010, and the Copyright Cleanup, Clarification, and Corrections Act of 2010, Pub. L. No. 111-295, enacted Dec. 9, 2010.

RAMIFICATIONS OF FAILURE TO COMPLY WITH COPYRIGHT

This page outlines California State University, Fresno's plan to comply with the Higher Education Opportunity Act (HEOA).
The Higher Education Opportunity Act (HEOA) includes provisions to reduce the illegal uploading and downloading of copyrighted works through peer-to-peer (P2P) file sharing. Specifically, HEOA requires institutions to:
  • make an annual disclosure that informs students that the illegal distribution of copyrighted materials may subject them to criminal and civil penalties and describes the steps that institutions will take to detect and punish illegal distribution of copyrighted materials;
  • certify to the Secretary of Education that they have developed plans to "effectively combat" the unauthorized distribution of copyrighted material including "the use of one or more technology-based deterrents";
  • offer alternatives to illegal file sharing to the extent practical;
  • identify procedures for periodically reviewing the effectiveness of the plans to combat the unauthorized distribution of copyrighted materials.

Annual Disclosure

California State University Fresno uses a wide variety of methods to inform students about copyright laws:
  • The library copyright information center provides information and guidelines of copyright laws and fair use to the campus community.
  • All students are required to adhere to the practices stated in the campus Acceptable Use Policy. The policy is included in theStudent Handbook posted on the University's website.
  • All residential students must also accept the terms stated in the ResNet Usage Policies which includes a section on copyright compliance.
  • Each year, the Office of Student Affairs sends out a memo to all students on copyright laws and campus policies related to violating copyright laws. The memo is also posted on the University website.

Plan to Effectively Combat P2P File sharing

California State University Fresno uses three technological measures to effectively combat P2P file sharing:
  • Bandwidth shaping
  • Traffic monitoring to identify the largest bandwidth users
  • A vigorous program of accepting and responding to Digital Millennium Copyright Act (DMCA) notices. California State University' Fresno's policies and procedures concerning the Digital Millennium Copyright Act and our response to infringement claims are published on University's web site. If the University receives a complaint that a student user is redistributing copyrighted material that student will receive a cease and desist notification. If the University receives a second complaint about a student network user their Internet access will be disconnected and they will be referred to the Student Affairs disciplinary system for appropriate action. If the University receives a third complaint about a student network user, their Internet access will be disconnected until the Student Affairs disciplinarian contacts campus ITS to reinstate Internet service.

Alternative Online Sources for Copyrighted Materials

There are many legal sources for copyrighted material such as music and movies. They have a wide range of business models; some are free and some charge a nominal fee. The Motion Picture Association of America maintains an up-to-date and comprehensive compendia of legal sources. EDUCAUSE also maintains a list of legal sources for online music and videos. In addition, the following licensed resources are available to the campus community 'at the Henry Madden Library:
  • Naxos Music Library
  • Smithsonian Global Sound

Reviewing Effectiveness

LEGAL PENALTIES FOR COPYRIGHT INFRINGEMENT

The legal penalties for copyright infringement can include the following:
  • (1) The court can issue an injunction to stop the infringing acts.
  • (2) The infringer pays the actual dollar amount of damages and losses 17 USC 504(a)(1),
  • (3) The infrigner pays all profits made by the infringer 17 USC 504(a)(1)
  • (4) The law provides a range from $200 to $150,000 in Statutory Damages for each work infringed depnding on what the court feels is just 17 USC 504(a)(2), 17 USC 504(c)
  • (5) The infringer pays for all attorneys fees and court costs. 17 USC 505
  • (6) The Court can impound or order the destruction of the illegal works. 17 USC 503(a)
  • (7) If the infringer believed they were doing the right thing (that is, they believed they were covered by fair use or other exemptions) the court may fine as little as $200. 17 USC 504(c)(2) This section also applies to employees of non-profit educational institutions who are working in the scope of their employment. 17 USC 504(c)(2)(i)
  • (8) If the court finds the copyright violation was willful and for commercial advantage or private financial gain, the infringer can be jailed for up to five years and fined up to $250,000. 17 USC 506.

FAIR USE

As one of the limitations on a copyright owner's exclusive rights, fair use allows limited use of copyright material without requiring permission from the rights holders. Congress purposefully created a flexible fair-use statute that gives no exact parameters: fair use depends on the circumstances of each case.
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
  • (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  • (2) the nature of the copyrighted work;
  • (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  • (4) the effect of the use upon the potential market for or value of the copyrighted work.
The distinction between "fair use" of a copyrighted work and infringement can be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission if permission is necessary.
The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: "quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported."

TEACH Act

The Technology, Education, and Copyright Harmonization Act (TEACH Act) updates copyright laws pertaining to transmissions of performances and displays of copyrighted materials. Such transmissions are integral to distance education efforts, including online courses.

The TEACH Act says it is not copyright infringement for teachers and students at an accredited, nonprofit educational institution to transmit performances and display of certain copyrighted works as part of an online course if certain conditions are met. If these conditions are not or cannot be met, use of the material will have to qualify as a fair use or permission from the copyright holder(s) must be obtained in order for the material to be used.

The Copyright Management Center of Indiana University/Purdue University of Indianapolis provides a TEACH Act Checklist that can assist professors in their documenting how their use of copyrighted work can be used in compliance with the TEACH Act. 

OBTAINING PERMISSIONS

Permission from copyright holders is often needed when creating course materials, research papers, and Web sites. You need to obtain permission when you use a work in a way that infringes on the exclusive rights granted to a copyright holder, i.e., reproducing part or all of a copyrighted work outside the boundaries of acceptable fair use. The following is a step-by-step guide to aid you in planning strategies to obtain permission to use copyrighted works for educational purposes.

Top of Page Step 1: Determine if permission is needed for the work you want to use.

a) Is the material protected under copyright law? Remember some items (those in the public domain) are not protected by copyright, and may be used without permission from the copyright holder or payment of royalties. Knowing when a work was published or if legal requirements were met is helpful in determining if a work can be used without permission. SeeWhat types of works and information make up the public domain and Rules of thumb for public domain works.

b) Does the use fall outside the limits of fair use? After analyzing your specific situation by applying the four factors of fair use and concluding that your use is not fair use, you must obtain permission from the copyright owner. Common examples that require written permission from the copyright owner include: copying for commercial use, unpublished works, some specialized works such as illustrations, and consumable materials, such as workbooks or standardized tests. See the guideline from the 1996 Policy on the Reproduction of Copyrighted Materials for Teaching and Research, Copying Requiring Prior Written Permission from the Copyright Owner.

Assuming the work is copyright protected and your use does not meet fair use criteria, the next step is to identify the copyright owner.

Top of Page Step 2: Identify the copyright holder or agent.

For print publications, generally the publisher is the owner of the copyrights and can grant permission for your use. Many publishers also have online copyright permission pages that can be used for this purpose. If the publisher is not the copyright owner, they can probably direct you to the copyright owner.

Depending on the work, permission may be required from more than one source. For example, if you wish to use a photo from a journal, the publisher may own the copyright for the photo but if the subject of the photo is a well known person, you may also need to obtain permission from the individual in the photo and the photographer.

For more information on locating copyright holders and services and agencies that grant permissions, see Guides for locating copyright holders and Services and agencies.

Top of Page Step 3: Send written request for permission to use. Remember to give yourself ample lead time, as the process for obtaining permissions can take months. Decide if you are willing to pay a licensing fee/royalty.

Your letter should include the exact material to be used, including title, author, and page numbers. Including a photocopy of the material is a good idea. Include the number of copies you wish to make, and the exact nature of the use, including how many times or how often the material will be used, the form of distribution, and whether the material will be sold. See the UC Policy and Guidelines on the Reproduction of Copyrighted Materials for Teaching and Research, Appendix 2, for more details.

For more information on writing letters of permission, see (from the UCOP Office of Technology Transfer) How do I use something legally? and Sample model permission letters from other universities that can be modified.

Top of Page Step 4: If the copyright holder can't be located or is unresponsive (or if you are unwilling to pay a license fee), be prepared to use a limited amount that qualifies for fair use, or use alternative material.

Top of Page Step 5: Consult others as needed.

Contact your OTT Campus Contact to locate the office on your campus that can assist you in obtaining permission and in any contractual negotiations, including payment of fees and royalties. Check your Campus Resources to find out where to go for more help.

CREATIVE COMMONS

In order to grow a corpus of creative and scholarly work that can be shared and used by many, the Creative Commons provides a way for authors and creators of works to designate that their work can be used by others.

Those wishing to share their work with others but define the ways in which it can be used (e.g., for noncommercial purposes only, or only by attributing the creator of the work) should pursue a Creative Commons License.