1. Introduction

Adventist University expects all members of the University community to make a good faith effort to respect the rights of copyright owners. This policy serves to affirm the University ’s commitment to comply with copyright law, to educate members of the University community about copyright law and rights available under that law, and to provide a standard approach for addressing complex copyright issues. This policy outlines the relevant statutes, codifies University practices relevant to copyright, and recommends tools by which faculty, staff, and students can ensure they respect the rights of copyright owners.

2. Copyright Basics

2.1. The Extent of Copyright

Copyright is the right of an author, artist, or other creator of an original work of authorship to control how his or her work is used. Under the United States copyright law (title 17, U.S. Code), copyright attaches the moment the original work of authorship is fixed in any tangeble form—no formal registration is necessary. Copyright protection extends to literary works; musical works; dramatic works; pantomimes and choreographic works; pictorial, graphic, and scupltural works; sound recordings; and architectural works. Ideas, concepts, principles, procedures, processes, methods of operations, and discoveries are not protected by copyright.

United States copyright law grants copyright owners the exclusive rights to copy and/or distibute their work, to create derivative works, and to publicly perform or display their work (17 U.S.C Section 106). There are limitations on these rights, but in general the unathorized reproduction, performance, display, or distribution of a copyrighted work is copyright infringement and may subject the infringer to civil and criminal penalties.

2.2. Limitations on Exclusive Rights

The exclusive rights of copyright owners have several limitations place on them by copyright law. These limitations include copyright term limits, the first sale doctrine, special classroom exceptions, reproduction by libraries and archives, and fair use. Uses that fall under these limitations are allowed without the permission of the copyright owner. For any other use of copyrighted materials, the user must seek permission from the copyright owner.

2.2.1. Copyright Term Limits and Public Domain (Sections 301 – 305)

Copyright protection is not eternal. In the United States, copyright now lasts for the life of the author plus 70 years. For works where the author is unknown or the copyright owner is a corporation, copyright lasts for the shorter of 120 years from the creation date or 95 years from the publication date (17 U.S.C Section 302). Once a work’s copyright term expires, it enters the public domain and can be freely used by anyone without permission. Works created by officers or employees of the United States government as part of their official duties are also part of the public domain; however, works published by state governments may be copyrighted.

All works published before 1923 have entered the public domain, and other works will be added as their copyright terms expire. For more information and guidelines for determining the copyright status of a work, see Cornell University’s “Copyright Term and the Public Domain in the United States” (http://copyright.cornell.edu/resources/publicdomain.cfm) and the American Library Association’s Digital Copyright Slider (http://librarycopyright.net/digitalslider/).

2.2.2. The First Sale Doctrine (Section 109)

Section 109 (17 U.S.C Section 109) grants certain rights to the owner of a particular copy of a copyrighted work. The owner of the copy may, without permission, publicly display or sell it. The owner may also lend or lease his or her copy, though the commercial lending or leasing of computer software and sound recordings is specifically prohibited.

The first sale doctrine provides libraries with the right to loan out books and movies. Section 109 also gives libraries and non-profit education institutions the special right to lend computer software and sound recordings.

2.2.3. Special Classroom Exceptions (Section 110)

In a strict sense, any presentation of a copyrighted work in a classroom, such as reading aloud from a textbook, qualifies as a public display or performance and requires permission from the copyright owner. While drafting the copyright law, congress was aware of the need of teachers to present copyrighted material during their lessons. Schools could not function if teachers had to obtain permission before discussing any copyrighted works in class. Section 110 (17 U.S.C Section 110) addresses this problem by granting teachers and students the right to perform or display copyrighted works in face-to-face teaching situations.

For a use to qualify under the exception granted by section 110, it must meet a number of requirements. The display or performance must be an integral part of the class, must be supervised by an instructor, must take place in a classroom or similar location, and must be open only to members of the class. Also, the copies displayed or peformed must be lawfully obtained.

In 2002, Congress passed the TEACH act, which extends section 110 rights to distance education. TEACH allows the digital transmission of “a performance of a nondramatic literary or musical work or reasonable and limited portions of any other work, or display of a work in an amount comparable to that which is typically displayed in the course of a live classroom session” (17 U.S.C Section 110); digital educational works (works marketed specifically for transmission in distance education) are not covered.

TEACH also adds to the existing section 110 requirements. The educational institution must apply technological measures to prevent students from retaining the work past the class session or sharing the work without permission. And the institution must have in place copyright policies that promote copyright compliance and warn students that the works may be copyrighted.

2.2.4. Reproduction by Libraries and Archives (Section 108)

Copyright law recognizes several special rights that apply only to libraries. The primary right is the right of libraries to make and distribute a single copy of a work for non-commercial use (17 U.S.C Section 108). A library can copy an article or small portion of other types of works and give it to a library user provided that the library includes a copyright notice on the copy and has no notice that the user intends to use the copy for anything other than private study, scholarship, or research.

Seciton 108 also gives libraries the right to make multiple copies of works for preservation and to provide access to unpublished works.

2.2.5. Fair Use (Section 107)

One of the purposes of copyright is “to promote the Progress of Science and useful Arts” (U.S. Constitution, Article 1, Section 8). United States copyright law recognizes that there are uses, such as criticism, comment, news reporting, teaching, scholarship, and research that are necessary to promoting intellectual progress. Such “fair use” is not an infringement of copyright. While the other exceptions to copyright are put forth in some detail, fair use is left intentionally broad. Section 107 lists four factors to consider in determining whether a use qualifies as fair use:

“(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.” (17 U.S.C Section 107)

These factors are not precise, and different people may make different determinations about what constitutes fair use. Only the court can officialy state whether a given use is fair use or copyright infringement.

2.3. Infringement and Damages

If a copyright owner believes that a use violates his exclusive rights, he can sue the person responsible for copyright infringement. If the court agrees that the use is infringing, the user must cease the use and can face damages of up to $150,000 per violation plus the copyright owner’s court costs and attorney fees (17 U.S.C Chapter 5). If a person makes 10 copies of a copyrighted work, each copy counts as a single violation, so damages can quickly reach millions of dollars.

A person or institution can be guilty of infringement without directly violating copyright. United States copyright law recognizes three types of infringement: direct, contributory, and vicarious. Direct infringement is the actual act of violating copyright. Contributory infringement takes place when a person or institution knew or should have known about the infringement and contributed to it. Vicarious infringement takes place when a person or institution knew or should have known about the infringement and benefited financially from it. ADU would be guilty of vicarious infringement if a professor made illegal copies of an article for a class rather then paying for it from the department’s budget.

3. Responsibility

Individual ADU faculty and staff members are responsible for reading and understanding the University’s copyright policy and shall be held accountable for willfully disregarding it in their use of copyrighted works. ADU will provide faculty and staff with access to resources that assist with determining permitted use. Faculty and staff are responsible for consulting those resources and applying them in accordance with the law.

At no time shall a faculty member, staff member, or student assistant who reproduces or distributes copyrighted materials in accordance with the written or verbal instructions of a supervisor be liable for any failure to follow copyright law. This protection does not apply if the faculty member, staff member, or student assistant acts without instructions or in a manner that falls outside of such instructions.

4. Guidelines for Proper Use of Copyrighted Materials

ADU endorses the following guidelines on the correct use of copyrighted materials in various situations:

· Agreement on Guidelines for Classroom Copying in Not-for-profit Educational Institutions with Respect to Books and Periodicals (http://www.copyright.gov/circs/circ21.pdf)

· CONTU Guidelines for Interlibrary Loan Photocopying (http://www.ala.org/advocacy/sites/ala.org.advocacy/files/content/copyright/GLsInterlibLoan.pdf)

· Fair Use Guidelines for Educational Multimedia (http://ccumc.org)

· Guidelines for Off-Air Taping for Educational Purposes (http://www.lib.berkeley.edu/MRC/Kastenmeier.html)

Member of the ADU community are expected to abide by these guidelines where applicable. However, the guidelines represent an attempt to define the minimum use that would be considered non-infringing. They should not be considered statements of the maximum use allowed. Many uses that fall outside the recommendations of the guidelines may be covered by fair use. The guidelines are also not infallable guards against infringement. A use that seems to fit within a guideline’s boundries may actually be infringing under certain circumstances. It is important to consider how the four factors of fair use apply to every proposed use that is not clearly covered by one of the exceptions in sections 108, 109, and 110.

5. Resources

Copyright is a complex issue. In addition to guidelines, ADU provides access to the following resources for students, faculty, and staff to use in determining if a use of a work is permitted.

· University of Texas’ Copyright Crash Course (http://www.lib.utsystem.edu/copyright/)

· Stanford University Libraries, Copyright and Fair Use (http://fairuse.stanford.edu/)

· North Carolina State University’s TEACH Act Toolkit (http://www.provost.ncsu.edu/copyright/toolkit/)

· Columbia Unversity Libraries, Copyright Advisory Office’s Fair Use Checklist (http://www.copyright.columbia.edu/fair-use-checklist)

For additional help in making decisions reguarding copyright, please contact ADU’ copyright resource officer.

6. Peer-to-peer Filesharing

Peer-to-peer filesharing has gained popularity over the last several years as a way to obtain copies of music and movies. Peer-to-peer networks allow people to download and upload material to and from any computer on the network. These networks make it easy for people to freely copy and distribute or download copyrighted music and movies.

Copying and distributing copyrighted movies and music for entertainment purposes without permission is a clear violation of coyright law. A growing use of peer-to-peer filesharing among University students is downloading textbooks. Even though the textbooks are used for education, downloading them simply to avoid paying for them is copyright infringement, not fair use. See Indiana University’s “Filesharing and Copyright” (http://protect.iu.edu/cybersecurity/safeonline/filesharing) for a more detailed discussion.

ADU’ computer use policies state that the computer network on campus is not to be used for any illegal activity. This includes downloading and uploading files in violation of copyright law. Anyone who downloads or uploads copyrighted files illegally, whether through a peer-to-peer network or other means, will be subject the penalties outlined in the University’s computer use policies.

7. Permissions

If a proposed use of copyrighted material is not within fair use or any other exception, it doesn’t mean that you cannot use the material. You may be able to obtain permission from the copyright owner. The copyright owner may control licensing directly, or rights may be availabe from a licensing agency.

Rights are often readily available. Check with the library to find out what rights ADU already has. The library’s licenses for electronic access to a text-based work may include some reproduction and distribution rights. Licensing agencies such as the Copyright Clearance Center (http://www.copyright.com/) or the Authors Registry (http://www.authorsregistry.org) can quickly provide rights the library doesn’t have. For audio-visual materials, the library may have public performance rights for a performance not covered by section 110, or the library staff may be able to obtain those rights from the distributor.

For a comprehensive discussion of licensing and how to search for the owner of a copyright, see the Columbia University Libraries’ Copyright Advisory Office (http://www.copyright.columbia.edu/permissions).