Policy IP05 POLICY GOVERNING COPYRIGHT CLEARANCE (Formerly AD46)

Policy Steward:  Office of the Vice President for Research and Dean of the Graduate School

Contents:

  • Purpose
  • Applicable Law
  • Copyright and Intellectual Property
  • Exemptions Within Copyright Law
  • .... Fair Use
  • .... "The Teach Act"
  • .... Exemptions to the “Digital Millennium Copyright Act”
  • Services to Assist with Copyright and Instruction
  • Reporting Copyright Infringement
  • Further Information
  • Cross References

  • PURPOSE:

    The purpose of this document is to provide guidance on the use of copyrighted materials in instructional situations at The Pennsylvania State University.  The University has a responsibility to promote the legal and ethical use of copyrighted materials to create new knowledge.

    Instructors frequently need to provide copies of copyrighted works to their students in various ways, such as:

    Copying, distributing, adapting or performing a work generally requires the permission of the copyright owner.  However, the law balances the rights of the creator and copyright holder with the interests of society as a whole and provides exemptions for particular types of uses.   It is impossible to document all possible situations as University policy, so the purpose of this guideline is to provide University personnel with guidance, references, and resources to access additional help.

    Members of The Pennsylvania State University community with legal questions regarding copyright should contact the Office of the General Counsel, or outside counsel designated by that Office.  University personnel with questions about specific instances of use of copyrighted materials can, however, consult the University services described below under "Services to assist with Copyright and Instruction.” Individual University personnel will have financial liability for copyright infringement for materials they use in courses, except in those instances where they make use of the services listed below to obtain permission.   In instances where University personnel utilize these services to obtain permission, the University will accept any financial liability arising from use of copyrighted materials.

    APPLICABLE LAW:

    Employees of The Pennsylvania State University must comply with United States Copyright Law, codified in US Code Title 17-Copyrights, which protects the interests of creators whose expressions and works are recorded and fixed in tangible form.  The law gives copyright owners particular rights allowing them to control the circumstances in which their works are reproduced, distributed, adapted or modified, and publicly displayed or performed.  These rights may be transferred in whole or in part by the creator to other agents, such as publishers.  Copyright law also makes it illegal to disable or circumvent technologies that limit or prevent unauthorized uses.

    COPYRIGHT AND INTELLECTUAL PROPERTY:

    Because electronic information is volatile and easily reproduced, respect for the work and personal expression of others is especially critical in computer environments. Violations of authorial integrity, including plagiarism, invasion of privacy, unauthorized access, and trade secret and copyright violation using University Computer and Network Resources are prohibited. Computer software protected by copyright is not to be copied from, into, or by using University Computer and Network Resources, except as permitted by law or by the license or contract with the owner of the copyright.

    Computer networks and computer programs that facilitate and enable locating and downloading digitized works have made possession of copyrighted material such as music files, videos and software easier than ever before. In many cases, however, possession and/or distribution of such files is in direct violation of state and federal laws, and University policy. The University regards such copyright offenses very seriously. System users must remove any copyrighted materials that they do not have the copyright holder's specific permission to possess. As noted above, they must not place such material on University systems or to personally-owned systems attached to the University network at any time and must not engage in unauthorized copying, transmission, distribution and/or downloading of such works. System users are ultimately responsible for ensuring that the copyright holder has granted permission to make or distribute the copy in question. Suspected misuse of copyrighted materials by system users may result in exercise of the University's investigatory rights with or without notice to the user, suspension of network or other account access and disciplinary sanctions as defined in this policy. Additionally, the system user may face civil or criminal action that could result in fines, imprisonment or both upon conviction.

    The Technology Education and Copyright Harmonization (TEACH) Act modifies and clarifies the ways in which copyrighted material may be used without permission of the copyright owner. Faculty and Instructors (in this policy, all references to Faculty include Instructors)are protected under the TEACH Act only if they are in compliance with the new requirements. Such requirements include:

    1. The materials are lawfully made and acquired.

    2. Faculty will not interfere with technological controls within the materials they want to use.

    3. The materials are specifically for students enrolled in a class, and only those students will have access to the materials. The class is part of the regular offerings of Penn State.

    4. The materials are directly related and of material assistance to the course, and under the control or actual supervision of the instructor.

    5. Faculty will include a notice on the materials that the materials are protected by copyright.

    6. Faculty will use technology that reasonably limits the students' ability to retain or further distribute the materials.

    7. Faculty will make the materials available to the students only for a period of time that is relevant to the context of a class session.

    8. Faculty will store the materials on a secure server and transmit them only as permitted by this law.

    9. Faculty will not make any copies other than the one needed to make the transmission.

    10. The materials are of the proper type and amount the law authorizes: Entire performances of non-dramatic literary and musical works; Reasonable and limited parts of a dramatic literary, musical, or audiovisual works; Displays of other works, such as images, in amounts similar to typical displays in face-to-face teaching.

    11. Materials specifically marketed for classroom use for digital distance education are NOT protected under the TEACH Act.

    Note: For full information about the TEACH Act and the principles of fair use, see: http://tlt.its.psu.edu/teach-act/

    EXEMPTIONS WITHIN COPYRIGHT LAW:

    Copyright Law includes several provisions that, in certain cases, offer the public in general, and educators in particular, exceptions to the need to seek permission. Understanding and making appropriate use of these provisions can help to further the educational mission of the University.

    Fair Use:

    Fair Use is legally defined in US Code Title 17, Section 107 to provide exceptions to the owners’ exclusive rights “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.”  Section 107 further states:

    “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 of the work used in relation to the work as a whole.

    4. The effect of the use in question upon the potential market for, or value of, the copyrighted work."

    While the law gives no particular weight to any of these four factors, courts have tended to heavily rely on the fourth factor when reviewing legal challenges to fair use.

    Some groups and communities have attempted to clarify “fair use” by providing specific formulas or guidelines for the third factor, i.e., on the amount of a work that can be copied for instructional use.  However, the law does not rely on any such formulas and relying on them without considering the other three can result in declaring a use out of bounds when it may in fact be allowed under fair use.

    Fair use analyses can be conducted by anyone, but faculty may wish to make use of services listed below to help them with such an analysis.

    "The Teach Act":

    US Code Title 17 Section 110, sometimes known as “The Teach Act,” provides University personnel acting in an instructional capacity with specific rights for performance of copyrighted works in both the classroom and in an e-learning context.   This section does not exclude applying a fair use analysis in that context.

    Exemptions to the "Digital Millennium Copyright Act":

    US Code Title 17 Section 1201 sometimes referred to as "The Digital Millenium Copyright Act," makes it illegal to disable or circumvent technological controls preventing copying or distribution of copyrighted works.   Section 1201 directs the Librarian of Congress, in consultation with the US Register of Copyrights, to periodically rule on specific exemptions to this prohibition that would facilitate a “non-infringing” use of copyrighted material.  These exemptions sometimes apply to educational settings and uses of copyrighted materials, but are reviewed and updated every three years. University personnel are advised to consult the services listed below to assist them in understanding if and how these exemptions may apply to them.

    SERVICES TO ASSIST WITH COPYRIGHT AND INSTRUCTION:

    REPORTING COPYRIGHT INFRINGEMENT:

    The senior position for computer and network security reporting to the Vice Provost for Information Technology is designated to receive notices of possible copyright infringements occurring online at The Pennsylvania State University.

    FURTHER INFORMATION:

    For questions, additional detail, or to request changes to this policy, please contact the Office of the Vice President for Research and Dean of the Graduate School.

    CROSS REFERENCES:

    IP04 - Royalty Payments for Course Materials


    Effective Date: April 2, 2013
    Date Approved: April 1, 2013
    Date Published: April 2, 2013 (Editorial changes- October 25, 2013)

    Most Recent Changes:

    Revision History (and effective dates):

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