Copyright and Fair Use Guide

The U.S. Copyright Law grants a set of exclusive rights to copyright owners to reproduce and market their works to the public for a limited amount of time. The law also includes exemptions to rights of the copyright owner, the most important being fair use, that are vital to education and librarianship. Notre Dame de Namur University respects and upholds the copyright law while adhering to its commitment to fulfill the needs of teaching and scholarship within the framework of the law.

Faculty members are legally responsible for adhering to the provisions of the U.S. Copyright Law. The guide below is provided for guidance in interpreting fair use. The University makes every effort to assure the accuracy of this information but does not offer it as counsel or legal advice.


1. Copyright

Copyright owners have exclusive rights to:

• Reproduce the work in copies
• Sell or distribute the work publicly
• Prepare new works based on the protected works
• Perform and/or display the work publicly

All works that are tangible in nature and are original expressions can be copyrighted. The creator of a work often owns the copyright of the work unless they have sold their copyrights either in whole or part using assignment or licensing agreements. Copyright protection is available for both published and unpublished works. Works in the public domain cannot be copyrighted.

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2. In-Class Performance or Display

The copyright laws have several exemptions to facilitate educational use of copyrighted materials. The Classroom Use Exemption, Section 110(1) of the U.S. Copyright Law, allows performance and displays of copyrighted works in a non-profit, face-to-face, in-person, classroom setting. Activities such as holding up a purchased or borrowed copy of a book or artwork, playing a DVD or CD for a class, or singing a song that students already know fall under this exemption. This exemption does not cover reproducing or distributing works regardless of student use or teaching purposes. Such use of copyrighted works may sometimes be allowed under Fair Use.

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3. Fair Use

Fair Use, Section 107 of the U.S. Copyright Law, is the most significant limitation on the copyright holder’s exclusive rights and applies to education, research, criticism, commentary and news reporting. While there are no set guidelines for fair use, instructors should consider the following four factors before using copyrighted works:

• The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
• The nature of the copyrighted work (fair use generally favors use of published and factual works over unpublished and fictional)
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole
• The effect of the use upon the potential market for or value of the copyrighted work

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4. Permitted Copying and Use – Media Type, Portion, Time, and Distribution

4.1. Print Copying
4.1.a. Single Copying for Instructors

A single copy of the following can be made for the instructor’s scholarly research or class preparation:
• A chapter from a book
• An article from a periodical or newspaper
• A short story, short essay, or short poem
• A chart, diagram, graphic, drawing, cartoon, or picture

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4.2.b. Multiple Copying for Classroom Use

Multiple copies for classroom use are permitted provided:
• The copying meets the standards of brevity, spontaneity, and cumulative effect as defined below; and
• Each copy includes a notice of copyright
• Only one copy may be distributed for each student and that copy must become the student’s property

Brevity: Either a complete poem of less than 250 words, or an excerpt from a longer poem of not more than 250 words, complete article, story or essay of less than 2,500 words, or an excerpt from any prose work of not more than 1,000 words or 10 percent of the work, whichever is less.
Spontaneity: The copying is at the instance and inspiration of the individual teacher, and the inspiration and decision to use the work.The moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission.
Cumulative effect: Copying of the material is for only one course in the department in which the copies are made. No more than one short poem, article, story, essay, or two excerpts may be copied from same author, nor more than three from the same collective work of periodical volume during one class term. There shall not be more than nine instances of such multiple copying for one course during one class term.

4.2.c Limitations

• Multiple copies from different works shall not be used to substitute for the purchase of books, publishers’ reprints, or periodicals.
• Copies should not be made from works intended to be “consumable” in the course of study or teaching. These include workbooks, exercises, standardized tests, test booklets, answer sheets, and such consumable material.
• Copies should not be made from the same work and used from semester to semester, or for different courses at the same or different institutions. NO CHARGE shall be made to the student beyond the actual cost of the photocopying.

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4.2. Multimedia Reproductions

Limited portions of copyrighted films, audio and video recordings, and photographs may be reproduced or otherwise incorporated when creating their multimedia projects to be used as teaching tools in support of curriculum-based instructional activities.
Permissible amounts for each type of media that can be included in an multimedia project:
• Up to 10 percent of the total or 3 minutes, whichever is less for movies, film clips, excerpts from televisions shows, etc.
• Up to 10 percent of the work but no more than 30 seconds of the music or lyrics from an individual musical work
• No more than 5 images from one artist or photographer, and no more than 10% or 15, whichever is less, from a collection
• Up to 10 percent or 2,500 fields or cell entries, whichever is less, from a copyright database or data table
Limitations:
• Instructors may make no more than two copies (including the original) of the instructional multimedia project containing materials used under fair use. An additional copy can be made only for preservation purpose.
• The Fair Use of copyrighted materials in multimedia projects is permitted for only two years after the first instructional use of the project in class. Thereafter, the multimedia project may be used only after obtaining permission from the copyright holder.

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4.3. Off-air Recording of Broadcast Television Programming

Off-air recording, retention, and use of television broadcast programs for educational purposes is permissible under following conditions:
• Off-air recording is permitted only of “broadcast programs” that are transmitted by television stations for reception by the general public without charge.
• The off-air recordings must be shown within the first 10 consecutive days after the date of recording in a classroom setting or similar environment.
• Off-air recordings need not be used in their entirety, but the recorded programs may not be altered from their original content.
• The off-air recordings may be retained for a period not to exceed 45 consecutive calendar days after the date of recording, after which the recording must be erased or destroyed immediately.
• After the first 10 consecutive days, off-air recordings may be used up to the end of the 45 calendar day retention period only for teacher evaluation purposes, i.e., to determine whether or not to include the broadcast program in the teaching curriculum.
• No broadcast program may be recorded off-air more than once at the request of the same teacher, regardless of the number of times the program may be broadcast.
• A limited number of copies may be reproduced from each off-air recording to meet the legitimate needs of teachers under these guidelines.
• All copies of off-air recordings must include the copyright notice on the broadcast program as recorded.

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4.4. Copying of Computer Software

Generally, the fair use exemption does not apply to computer software for two reasons. In order to function as expected, the computer software needs to be copied in its entirety. Unauthorized copying of entire computer software has a direct impact on the potential market value of the work. Moreover, computer software is usually licensed for use on only one computer. A single copy can be made of a computer software for backup purposes only. Without the expressed written consent of the software manufacturer, software copying and distribution is strictly prohibited.

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4.5. Media Conversions

Copyright Law does not allow the conversion of media from one format to another (e.g. VHS to DVD) without the explicit permission of the copyright holder. Such reproduction of copyrighted material does not qualify as fair use. Lawful reproduction of media content is allowed for archival purposes under specific conditions only as delineated in Section 108 of the copyright law.

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4.6. Visual Arts

Copyright Law protects artworks of all kinds, audiovisual materials, photographs, and texts (among other things) against unauthorized use by others. To learn about best practices in assessing fair use of copyrighted materials, please refer to the Code of Best Practices in Fair Use in the Visual Arts. It describes how fair use can be invoked and implemented when using copyrighted materials in scholarship, teaching, museums, archives, and in the creation of art.

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5. Library Course Reserves

Faculty members are responsible for ensuring that their requests for library course reserves are compliant with U.S. copyright law and the four fair use principles. In general, the amount of the material should be reasonable in relation to the total amount of material assigned for one term of a course. The number of copies should be reasonable in light of the number of students enrolled, the difficulty and timing of the assignments, and other courses which may assign the same material.

The following may be placed on course reserves:
• Entire books, scores, and videos in their original formats owned by the library
• Photocopy of a complete chapter, story, article or essay from a collected work if it does not constitute a substantial portion of the total work
• A photocopy of one article, story or essay from a single issue per journal or newspaper title
• One chart, graph, diagram, cartoon or picture per book or periodical issue on reserve
• Instructor’s notes, quizzes, tests, and other materials created for course instruction by the instructor
• Copyrighted materials legally owned in their original format by the instructor
• Copyrighted materials for which the instructor has obtained appropriate permission

The following may not be placed on course reserves:

• Workbooks, exercises, standardized tests, test booklets, and answer sheets and like consumable material
• Commercial anthologies (or use of other publications to substantially replicate an anthology normally purchased by students)
• Works that replicate an excessive portion of a copyrighted work, including anthologies
• Works prohibited by licensing restrictions
• Course packs

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6. Coursepacks

Photocopying materials from copyrighted works and assembling them into academic coursepacks requires permission from the copyright holder or its agent. The NDNU Bookstore can assist faculty members in the preparation of customized coursepacks. The bookstore works with outside vendor, XanEdu to obtain required copyright clearances from the copyright owners, print coursepacks, and make the coursepacks available for sale to the students.

Faculty members are required to fill out a XanEdu Order Form (available at the bookstore) and provide originals of the materials the wish to include in the coursepacks. Requests must be submitted at least 8-10 weeks before the term begins.

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7. Linking to Online Resources

Sharing a link to online resources with students via email, on paper, or within a course website is permissible if the following conditions apply:

• Resources are freely available to the general public
• Resources are in the public domain
• Resources are published under Creative Commons or Open Access licenses and attribution requirements stipulated in licenses are fulfilled
• Resources accessible via the university’s institutional subscriptions

Links to online media may not be shared in the following situations:
• Resources freely available on the web obviously contain infringing material
• Videos on YouTube, Vimeo, and other such sites whose Terms of Service allows for personal use only
• Streaming videos on Netflix, Amazon Instant Videos or other such subscription services whose Terms of Service allows for personal use only
• Purchased copies of MP3 and movie files where the purchase agreement is for personal use only

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8. Permissions

Faculty members are legally responsible for determining whether their use of copyrighted work falls under fair use or requires permission from the copyright owner. Permission to use copyrighted materials must be obtained if the reproduction and otherwise incorporation of copyrighted materials does not meet the standards of fair use discussed above. If there is any doubt whether a use is fair use, it is always best to seek permission. Providing correct attributions or citations will not suffice when permissions are required.

To obtain permission to reproduce or use a copyrighted work, faculty members need to identify the copyright owner of the material they intend to use. This information can be located by looking for copyright statement on the copyrighted work. If that information is unavailable, the name and contact information of the creator or publisher can be found by searching online. Once the copyright holder is identified, faculty members should request the right to use the work in the amount and format intended. In some cases, faculty members may need to negotiate and pay a fee to the copyright owner. Permissions must be obtained in writing and preserved for full legal protection.

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9. Copyrighted Works and Online Teaching

While the performance or display of copyrighted works in digital formats are allowed in a face-to-face classroom environment, such use is further restricted in an online teaching environment. Since digital materials can be easily reproduced and widely distributed, they are more vulnerable to copyright infringement.
With the T.E.A.C.H. Act passed in 2002, instructors may perform or display copyrighted works, or portions of copyrighted works to students in remote locations. However, the educational institutions intending to implement the T.E.A.C.H. Act are required to use technological protection measures that prevent retention and unauthorized distribution of the work. At present, Notre Dame de Namur University has not implemented the T.E.A.C.H. Act. Hence, NDNU faculty may not display or transmit copyrighted works in online teaching environments.

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10. Sources

Copyright Clearance Center (2008). Campus Guide to Copyright Compliance. Retrieved from http://www.copyright.com/Services/copyrightoncampus/

Crews, K. (2006). Copyright law for librarians and educators: Creative strategies and practical solutions. Chicago, American Library Association.

Hoon, P. (2007). Resources for teaching faculty: Frequently asked questions. Know Your Copyright. Retrieved from http://www.knowyourcopyrights.org/resourcesfac/faq/

Russell, C. (2004). Complete copyright: an everyday guide for librarians. Chicago, American Library Association.

United States Copyright Office. (2008). Copyright basics. (Circular 1). Retrieved from http://www.copyright.gov/circs/circ01.pdf

United States Copyright Office. (2009). Reproduction of copyrighted works by educators and librarians. (Circular 21). Retrieved from http://www.copyright.gov/circs/circ21.pdf

United States Copyright Office. (2010). Fair use. (Circular FL-102). Retrieved from http://www.copyright.gov/fls/fl102.html

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