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Copyright: The Specifics

Below are information and questions on some common issues. If, after reading the material below you still have questions, please contact us and we will work with you to achieve your goals. Additional topics may be added as issues arise.

NOTE: The information presented here is only general information. Legal advice must be provided in the course of an attorney-client relationship specifically with reference to all the facts of a particular situation. This information must not be relied on as a substitute for obtaining legal advice from a qualified licensed attorney.

Coursepacks

Taking excerpts from various copyrighted sources and assembling them into one volume is a very common practice across college campuses. The cost of purchasing textbooks, not to mention the burden of carrying around multiple volumes per class makes creating a single tailored coursepack very attractive to instructors and students alike. These packets, however, present potentially serious copyright issues. Unless permission was obtained from the copyright holder, or the use falls under one of the statutory exemptions, each excerpt could constitute one count of copyright infringement. While a single circulated copy within a classroom is clearly within fair use, the problem arises when commercial copy services (such as Kinko's, a litigant in one case) are asked to create these packets using materials a professor provides, then sells them to students for a profit. Two recent cases applying fair use to coursepacks have, unfortunately, not provided more definitive answers to the issue.

In both cases, the courts applied the fair use test to each use and ultimately arrived at the conclusion that the coursepacks constituted copyright infringement. Although the outcomes were the same, the actual analyses differed greatly, thus not giving the public a better idea of how to apply the fair use test to coursepacks. Furthermore, it is worthwhile to note that both cases involved publishers suing commercial copy services that provided coursepacks to universities. It is unknown whether the outcome would be the same if a university library or in-house copy service had provided the volumes. A more detailed summary of the cases is available here.

What Does This Mean for Coursepack Use?

Since the state of the fair use analysis applied to coursepacks is uncertain, here are some practical suggestions for coursepacks. If a coursepack is necessary, follow these guidelines in addition to applying fair use to each item:

1. Brevity. Use excerpts sparingly. While there is no proscribed limit on how many words or pages may be used, keep the sections used to a minimum. The Classroom Guidelines limit suggests 1,000 words. Keep in mind that the quality of the excerpt also factors into the equation. Using a chapter that is not central to the original work may be more tolerated than copying 2 pages that reveal the climax or conclusion.

2. Spontaneity. Is there time before the use to obtain permission from the copyright owner(s)? If the time between publication and the use of the work is a matter of days, this will tip in favor of fair use.

3. Cumulative Effect. This factor is similar to the last element of the fair use analysis. Will repackaging of the copyrighted material compete with the original work? In other words, would wide dissemination of the compiled work prevent or significantly diminish the copyright owner's ability to financially exploit the work? If yes, this will point against fair use of the work.

4. Include the copyright notice from the original. Attribute the source of the excerpt as well.

5. Do not charge more than the actual cost of copying/assembling the packet. Charging more than cost will push the use out of the nonprofit educational use realm and into commercial competition with the original work.

And remember that coursepacks designed to replace anthologies, compilations, or collective works do NOT constitute fair use of the copyrighted materials.

Copyright & the Internet

The internet has spawned many copyright issues and controversies. Because widespread use of the internet is a relatively new phenomenon, court cases and legislation has been trying to catch up to the issues. Due to the ease of copying and transmitting information over the internet and the unregulated nature of the internet, application of copyright laws are not always simple or possible. As a result, there is no definitive law on what may or may not be posted or transmitted through the internet. Below are some issues involving the internet.

Caltech's Policy on Computer and Internet Usage

Caltech's Institute Policy on Acceptable Use of Electronic Information Resources states that use of campus computer resources should be guided by the Institute's Honor System. Violation of the Acceptable Use Policy may result in disciplinary action, up to and including separation from the Institute. Repeated acts of copyright infringement or harassment through use of Institute computing facilities could lead to the removal of infringing material and/or termination of your account. Misuse of the computing resources may also result in federal and/or state prosecution.

Additional information on campus computer and email use policies are available from ITS.

Posting Course Materials on the Internet - The TEACH Act

Posting course materials on the internet has become a convenient, inexpensive method to make the information available to students. Rather than making photocopies of an article or picture for distribution in a classroom or placing copies on library reserve, posting items on the internet allows anyone with the URL address access to the work. If the particular work is copyrighted, this practice could be deemed detrimental to the copyright owner who wishes to profit from sales of the work. Publishers have created a market for individual articles and view these articles as an individual work.

Because widespread use of the internet is a fairly new phenomenon, copyright issues in the digital realm do not have a large body of case law. In late 2002, the "Technology, Education and Copyright Harmonization Act" ("the TEACH Act") was enacted that allows copyrighted materials to be used for distance learning purposes under very specific circumstances.  Because the TEACH Act is limited in scope, it is likely that it will not be broad enough to address your needs.  You may, of course, still rely on the fair use especially of you wish to make duplications of a work.  In conducting a fair use analysis for online activities, keep in mind that web publishing may reach a much larger audience than distributing copied material in a classroom. Additional information on copyright issues in the digital age may be found here.  For a discussion on the TEACH Act, click here.

Web Page Content

Web pages pose a plethora of copyright issues. Below are some common items found on web pages and suggestions to avoid copyright infringement in each instance. Additional information of special interest to webmasters may be found here and here.

Journals, Newspaper Articles, Books Excerpts. These materials are likely copyrighted and permission must be obtained from the copyright holder prior to placing then on a web page. Quoting small sections -- a few lines -- as a sample or to critique is permissible (see Factor #3 of the fair use analysis on the specific portion of the work used) and always include any copyright ownership identification, if it is available. Or to be safe, merely link to the work, provided the material linked to is legally published on that site.

Video (movie) or Voice (music) clips. Assume that video and audio clips are copyrighted. Do not put visual or audio clips on a web page unless the clip is in the public domain or permission is explicitly granted for that particular use.

Images, Photographs, or Graphics. Assume that all images, photographs, or graphics are copyrighted, unless permission is explicitly granted for public use. Sometimes authors will create items such as buttons or wallpaper designs and grant permission for use on non-commercial web pages. In the case of photographs, evidence of permission from the person(s) in the photograph must be available before posting it on a web page.

NOTE: Allegations of copyright infringement on a Caltech-hosted web page will be investigated and if necessary, the item(s) removed. Repeated incidents of copyright infringement may lead to a shut down of the site.

The Digital Millennium Copyright Act of 1998

On October 28, 1998, the President signed into law the Digital Millennium Copyright Act (DMCA or the Act). It is the largest revision of the United States copyright act since the Copyright Act of 1976. The DMCA is actually a compilation of 5 parts, each addressing a different area of copyright. It is Congress' attempt to update the copyright laws to address digital environment issues. Title 1 of the Act implements the World Intellectual Property Office Copyright Treat (WCT) and the WIPO Performances and Phonograms Treaty (WPPT).

In addition to implementing the two WIPO treaties, the DMCA addresses 4 other areas:

1. The "Online Copyright Infringement Liability Limitation Act" creates limitations on liability for ISPs on copyright infringement under specified circumstances. ISPs must meet certain criteria in order to qualify for a "safe harbor."

2. The "Computer Maintenance Competition Assurance Act" creates an exemption allowing computer repair services to make a copy of a computer program for maintenance or repair purposes.

3. The fourth title contains six miscellaneous provisions concerning the functions of the Copyright Office, distance education, exceptions in the Copyright Act for libraries and making ephemeral recordings, "webcasting" sound recordings over the internet, and the applicability of collective bargaining agreement obligations in the transfer of motion picture rights.

4. The "Vessel Hull Design Protection Act" creates new protection for the design of vessel hulls.

The full text of the Act and the Copyright Office's Summary [pdf format] are available to the public. A discussion of the DMCA as it relates to universities is available here.

Library & Archival Use

Section 108 of the copyright statute grants libraries and archives an exemption from infringement under specified circumstances. Some highlights:

One copy of a work may be made and distributed if:

1. There is no purpose of direct or indirect commercial advantage;

2. The library or archives are open to the public or to those doing research in a specialized area; and

3. The reproduction includes the notice of copyright that appears on the original, or if a notice is not found, the reproduction must contain a legend stating that the work may be copyrighted.

Three copies of an unpublished work may be made and distributed solely for preservation, security or deposit purposes if:

1. The copy reproduced is currently in the library or archives; and

2. Any copy reproduced in digital formal is not distributed and made available to the public outside the library or archive premises in that format.

Three copies of a published work may be made solely for replacement purposes of a copy that is damaged, deteriorating, lost or stolen or if the existing format becomes obsolete, if:

1. After a reasonable effort, the library or archive determines that an unused replacement cannot be obtained at a fair price; and

2. A copy made in digital format is not made available to the public outside the library or archive premises.

A format is considered obsolete if the machine necessary to retrieve the work stored in the format is no longer manufactured or reasonably commercially available.

A user may make or request one copy of one article from a collection or periodical issue or a small portion of a copyrighted work from another library or archive if:

1. The copy becomes the property of the user and the library has no notice that the copy is to be used to purposes other than private study, scholarship or research; and

2. The library prominently displays the copyright warning where orders for copies are received and on the order form.

An entire work or a substantial portion of a work from another library or archive and requested by a user may be reproduced and distributed if the requesting library has first reasonably investigated and determined that a copy of the copyrighted work cannot be obtained at a fair price if:

1. The copy becomes the property of the user and the library has no notice that the copy is to be used to purposes other than private study, scholarship or research; and

2. The library prominently displays the copyright warning where orders for copies are received and on the order form.

A library, archive or its employees will not be liable for unsupervised copying if the duplication machine displays a copyright warning notice.

The library and archives exemption does not:

1. Excuse the operator of an unsupervised reproduction machine or requests for copies of an article or phonograph from another library collection if the reproduction or request exceeds fair use.

2. Exempt libraries or archives if they are aware, or have substantial reason to believe that isolated and unrelated reproduction and distribution of a single copy on separate occasions is related to the reproduction or distribution of multiple copies of the material or if the library or archive systematically copies and distributes articles from a collection or periodical issue.

3. Apply to musical works, pictorials, graphic or sculptural works, or motion pictures or other audiovisual works other than audiovisual works dealing with news. The exemption does, however, apply to the above copyrightable works in the case of copies of unpublished works and copies kept for replacement purposes and pictorial or graphic works published as illustrations or diagrams reproduced or distributed pursuant to a user's request or a copy of the work cannot be obtained for a fair price.

During the last 20 years of a copyright term, a library, archive or nonprofit educational institution may reproduce, distribute, display or perform (in facsimile or digital form) a work for preservation, scholarship or research purposes if the library or archive determines that none of the following apply:

1. The work is subject to normal commercial exploitation;

2. A copy can be obtained at a reasonable price; or

3. The copyright owner provides notice that either of the above conditions applies.

4. This exemption applies only to the library or archive and not to any subsequent users of the copyrighted material.

The American Library Association Model Policy Concerning College and University Photocopying for Classroom, Research and Library Reserve Use also offers guidelines on making photocopies for library reserves.

Caltech's Library/Photocopying Copyright Compliance Statement

It is Caltech's policy to comply with and enforce the copyright laws. A number of sources are available for further information on the library's website.

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