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COPYRIGHT REMINDER
Stanford 2007 Copyright Reminder
FROM: John Etchemendy, Provost
DATE: Fall 2007
SUBJECT: Copyright Reminder
Dear Students, Faculty Colleagues and Staff,
It is the time of the year that I write to you to remind you
about the impact of copyright law on our activities at Stanford. Please
take a moment to review the list below. If you believe that any of
these topics applies to you in your work as an author, teacher, staff member
or student, please click on these links to learn more about the law and
our policies.
If you have any questions about how these laws, policies
and guidelines may impact you, please contact Lauren Schoenthaler from the
Office of the General Counsel at lks@stanford.edu.
With best wishes for the academic year,
John Etchemendy
Provost
This Reminder covers:
If this Reminder and the listed resources
do not address your specific copyright concerns, please feel
free to contact Lauren Schoenthaler at lks@stanford.edu in
the Office of the General Counsel for assistance. Additionally,
there is a yearly class on copyright law provided to the Stanford
community through Stanford's Learning & Development Office. Copyright
Considerations for Staff will be held Tues, Jan 29; 9:00-12:00,
Amy A classroom. Registration
information will be available shortly at http://www.stanford.edu/dept/ld/.
BASIC COPYRIGHT PRINCIPLES
The Law. Copyright laws protect original works
of authorship. The Copyright Act gives the owner of a copyright
the exclusive right to do and authorize others to do certain
things in regard to a copyrighted work, including: make copies,
distribute the work, display or perform the work publicly,
and create derivative works. These exclusive rights are subject
to only limited exceptions. In academia, the five major exceptions
to the copyright owner's exclusive rights are: fair use, the
face-to-face teaching exception, the distance-learning exception,
the first-sale doctrine, and the library and archives exception.
These five exceptions are described below. Note that there is no over-arching
copyright exception for academic uses; academic journals and text publishers
expect royalties for use of their content.
If No Exception, Seek Permission. Unless
an exception to the copyright owner's exclusive rights applies,
you must obtain permission from the copyright owner to copy,
distribute, display or perform a copyrighted work in any medium
for any purpose.
Scope of Copyright. Copyright laws apply to
nearly all forms of captured content, including traditional
works like books, photographs, architectural drawings, music,
drama and sculpture. The laws also adapt to changes in technologies,
and include in their scope modern forms of works like movies,
electronic media, web pages, software, multimedia works and
some databases.
No Mark or Registration Necessary. A copyright interest
attaches to an original work that is "fixed in any tangible medium of expression" (i.e., a medium that is captured in an accessible form of content) at the work's
creation. Registration is not required to obtain a copyright,
though registration may be required to enforce a copyright in
federal courts. Works published after 1989 also do not need to
have a copyright notice to enjoy copyright protection. So if
in doubt, assume copyright applies.
Penalties. The penalties for copyright infringement can be harsh. Under the Copyright laws, a court may award up to $150,000 in civil statutory damages for each separate willful infringement; copyright infringement can also be a crime under federal law. Under Stanford policies, violation of copyright law may result in administrative action, such as loss of networking privileges and SUNet ID, or disciplinary action up to and including termination for faculty and staff and expulsion for students.
Public Domain Works. Not all works
enjoy copyright protection, and all works eventually fall into
the public domain. Certain classes of works, such as
United States (but not state or local) government works and
databases of facts, do not receive copyright protection. They
are in the public domain and may be freely used. Once
the copyright in a work expires, that work also falls into
the public domain. Any work published in the United
States before 1923 is in the public domain. Works published
from 1923 through 1963 are protected for 95 years from the
publication date, if the copyright owner renewed the work,
or if the work remained protected by copyright under another
country's laws. Many works published from 1923 through
1963 did fall into the public domain. This year Stanford
University Libraries completed and launched the Copyright Renewal
Database, http://collections.stanford.edu/copyrightrenewals ,
which searches renewal records of books published between 1923
through 1963. Works published from 1963 through 1978
are protected for 95 years from publication date. Since
1978, works generally have copyright protection for the life
of the author plus 70 years. (For more information about
when works fall into the public domain, please review the excellent
chart created by Lolly Gassaway of the University of North
Carolina, http://www.unc.edu/~unclng/public-d.htm). Stanford
encourages the use of Public Domain materials that are widely
available on the Internet.
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THE FAIR USE DOCTRINE
Fair Use Defined. The Fair Use Doctrine provides for limited use of copyrighted materials for educational and research purposes without permission from the owners. It is not a blanket exemption. Instead, each proposed use must be analyzed under a four-part test.
Fair Use Applied. Unfortunately, the four-part test to determine fair use is necessarily vague and fact-dependent. In some instances, two reasonable people could apply the four factors to the same facts and reach opposite conclusions. If the weighing and balancing analysis below does not provide an answer, please refer to the Copyright and Fair Use Resources section below.
Fair Use Four Factor Test.
1. What is the character of the use? Educational, nonprofit and personal use is favored for fair use, while commercial use is disfavored. However, the fact that a use is educational or nonprofit in nature does not in and of itself mean the use is necessarily fair. More important than the educational or nonprofit nature of the use is whether the use is "transformative" in nature. A use is transformative if it builds upon, criticizes, comments on, parodies or otherwise adds something new to the original work. Put another way, the question is whether the new use, in the words of the Supreme Court, merely "supercedes the objects of the original, or instead adds something new, with a further purpose or different character."
2. What is the nature of the work to be used? Use of a work that is factual in nature weighs toward a finding of fair use. Use of imaginative works is more likely to require permission.
3. What is the amount and substantiality of the portion to be used? Using only a small portion of a copyrighted material tips towards fair use, while using large portions indicates a need for permission. Be careful with this factor, however; a court has held that copying only 5% of a book was not fair use.
4. Will the use negatively affect the value of the copyrighted material? Where a work is available for purchase or license at a reasonable cost, copying all or a significant portion of the work (in lieu of purchasing or licensing a sufficient number of "authorized" copies) would likely be unfair. If only a small portion of a work is to be copied, and one would likely forego using the portion if permission were required, then the balance tips towards fair use.
Good Faith Fair Use Defense. Even if a copyright infringement occurs, a court may refuse to award damages if the infringer reasonably believed that the use was fair.
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THE FIRST-SALE DOCTRINE
Copyright law provides that the owner of lawfully obtained
copyrighted content may dispose of that copy (lend, rent, sell,
give-away, or throw away) without permission of the copyright
owner. Under the first-sale doctrine, a faculty member could
lend out his copy of a book or a DVD to students in his class.
This exception does not apply to recorded music, and many software
licenses prohibit the use of the first-sale doctrine.
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FACE-TO-FACE TEACHING ACTIVITIES
Performance or Display of Copyrighted Materials During
Face-to-Face Teaching. The Copyright Act provides
an exemption to perform or display copyrighted materials
during face-to-face teaching activities. Such use does not
require the author's permission. Note, however, that this
exemption does not permit copying or distributing a work--only
displaying or performing it during class time.
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DISTANCE EDUCATION
Distance Learning and the TEACH Act. The
TEACH Act extends in a limited way the Face-to-Face Teaching
exemption to distance learning activities. Provided the requirements
of the Act are followed, transmissions of performances of entire non-dramatic
works and reasonable and limited portions of any other
performance or audiovisual work may be made without obtaining
permission from the copyright owner. To take advantage of the
Act, you must abide by the following strict requirements:
The performance or display must be:
1) A regular part of mediated instructional activity;
2) Made by, at the direction of, or under the supervision of the instructor; and
3) Directly related and of material assistance to the content of the course.
Further, the following technological restraints must be in effect:
1) The content must be accessible only to those students who are enrolled in the course;
2) The content must be accessible only for the duration of a class session;
3) To the extent technologically possible, the content must be protected from further distribution
("downstream-controlled"); and
4) To the extent technologically possible, the content must not be subject to retention by students.
All material displayed under the TEACH Act must contain the following notice:
The materials on this course website are only for the use of students enrolled in this course for purposes associated with this course and may not be retained or further disseminated. The materials on this course website may be protected by copyright; any further use of this material may be in violation of federal copyright law.
You may digitize works for display from an analog format provided that:
1) No existing licensed digital copy is available for use at the University; and
2) Only the portion needed for transmission is digitized (i.e., only a reasonably limited portion).
Note: The TEACH Act does NOT permit:
1) Uploading material such as textbooks, coursepacks or other resources typically purchased by students to review outside of the classroom. (The TEACH Act only applies to works that an instructor would show or play during class. Any uploading of material for (non-classroom) study purposes must comply with the copyright laws, including fair use principles, and SUL's E-Reserve policies).
2) Uploading materials specifically marketed as distance education courses.
3) Uploading material that was obtained illegally.
Georgia Harper, an attorney formerly with the General Counsel's Office at the University of Texas has developed an excellent checklist to determine if "you are ready to use the TEACH Act." http://www.utsystem.edu/ogc/intellectualproperty/teachact.htm; see also North Carolina State University's Teach Act Toolkit, available at http://www.lib.ncsu.edu/scc/legislative/teachkit/overivew.html. Our designated TEACH Act agent is Lauren Schoenthaler, Senior University Counsel, at teachactagent@standford.edu or 723-9611.
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THE INTERNET AND COPYRIGHT
In General. Digitally created works and analog
works transformed into a digital format and placed on the Internet
are protected by copyright laws.
Exercise Caution When Downloading. Be mindful
of copyright/fair use principles when downloading material
from the Internet. Just because a work is posted on the Internet
does not mean that the owner of the copyright in it has given
you permission to make copies or distribute the work to others.
Note too that material may have been placed on the Internet
without the author's
permission.
Exercise Caution When Uploading. Be especially careful of copyright/fair use principles when uploading material to the Internet. It might be perfectly acceptable under the fair use doctrine to include several graphs from various articles to be included in a paper written for class; it might not be a fair use however, if you then publish those graphs to the world when you post your paper on the world-wide-web.
The Fair Use Doctrine. When dealing with an electronic use of a work, in addition to the traditional four fair use factors, you should consider the following additional concern:
5. Is access to the material limited or protected? It is a violation of law to circumvent an access control mechanism and use copyrighted material -- even if the use would otherwise be fair - except in very limited circumstances. For providing access to digital works that you have lawfully obtained, limiting access to a small audience by using passwords or other access control devices weighs toward a finding of fair use.
Protect the Copyright. Electronic distribution of a copyrighted work should state: This work is protected by copyright laws and is provided for educational instruction only. Any infringing use may be subject to disciplinary action and/or civil or criminal liability as provided by law.
Link to it. It is generally acceptable to
point others to material posted on the Internet by providing
a link to the website.
The link itself is not a copy of the content -- it is merely a direction to
content. Because the link-provider is not making any copies, linking
is generally outside the boundaries of copyright law. The exception is that
it could be contributory infringement to provide a link to a website knowingly
hosting copyrighted material unlawfully. So
link sources directly, such as journals or newspapers, and
be wary when providing
to links to content that can be uploaded without much of a
background check, such as popular online video-hosting services.
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ELECTRONIC COURSEPACKS
Electronic CoursePacks and CourseWork Software.
Increasingly faculty and students are finding that having a
central website portal for access to class information and
reading lists is an essential part of course management. Faculty
and students may post or link to copyrighted materials on password
protected course sites only in compliance with copyright principles.
Prior to scanning or digitizing copyrighted materials, faculty
should review SUL's electronic holdings to determine if a pre-existing
license for the content already exists. Stanford University
Libraries have secured licenses to tens of thousands of online
works, and many other works are available electronically to
the public through licenses, such as Creative
Commons licenses.
Additionally, there are many excellent digitization projects that are making
public domain content available online, such as Project
Gutenberg, The
Internet Public Library and the full-view search of Google
Books. Similarly, instead of creating a digital copy of
a work, where possible, faculty members are encouraged to provide
links to the content-owner's website, such as to a news-service.
If these options are not available, digitizing content is acceptable
in limited circumstances. The faculty member must consider
whether the use is a fair use, such as a single, recent news
article, or a few images, or whether permission is necessary
from the copyright owner, such as a few chapters from a textbook.
A sound guideline is if copyright clearance were necessary
to place something into a coursepack, then copyright clearance
is necessary to place it into a class website. The preferred
online course management system at Stanford is CourseWork,
which is located at http://coursework.stanford.edu/.
CourseWork provides a web-based document bank and password-protected
access system to course participants only. For more information
about putting together a coursepack, please see, http://fairuse.stanford.edu/library_resources/arl.html.
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PODCASTING
COURSES
Podcasting of Stanford classes introduces a number of issues
to consider before recording. These include intellectual
property and privacy legal issues, student issues, and Stanford
copyright and videotaping policies. Certain classes
may not be appropriate for public consumption. A few
examples include classes that rely on substantial in-class
use and display of third-party copyrighted content; classes
involving the discussion of identifiable patients or research
subjects; and classes requiring substantial class participation
by students who may be made uncomfortable by the idea that
their thoughts will be broadcast to the world. There
are several groups that faculty may work with to determine
if it makes sense to podcast a particular course or lecture.
Faculty members interested in podcasting course material should
visit Stanford's iTunes U at http://itunes.stanford.edu/contribute/ .
Jeremy Sabol, jsabol@stanford.edu at
the Center for Teaching and Learning (CTL), and Lauren Schoenthaler, lks@stanford.edu ,
in the Legal Office are also available resources.
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MULTI-MEDIA
PRESENTATIONS
Conference on Fair Use Guidelines for in-class presentations: "Educators
may incorporate portions of lawfully acquired copyrighted works
when producing their own educational multimedia programs."
No more than 10% or 3 minutes (whichever is less) of motion-based
works
No more than 10% or 30 seconds (whichever is less) of
a song or video
No more than 10% of a text
Entire photographs or illustrations
may be used provided that no more than 10% or 15 images (whichever
is less) comes from any one source
For in-class presentations that will not be posted on the public
Internet, these guidelines are intended as guidelines only and
are not set in stone. But, for any multi-media presentation
that is to be posted onto the Internet or sold commercially,
these guidelines do not apply. Posting a single political
cartoon to the Internet within a powerpoint may not be a fair
use.
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THE DIGITAL MILLENNIUM COPYRIGHT ACT & PEER-TO-PEER FILE-SHARING
In General. The DMCA provides limited protection for Internet Service Providers (ISP), such as Stanford, from the infringing acts of their users. To obtain safe harbor, Stanford must comply with the DMCA, including responding to copyright infringement complaints and having a procedure to terminate repeat copyright infringers from the ISP. It also prohibits gaining unauthorized access to a work by circumventing a technological protection measure put in place by the copyright owner to control access to the work. Such circumvention is normally prohibited even if the use of the work would otherwise be a fair use. The DMCA also prohibits trafficking in technology or devices that are primarily designed to circumvent such a technological protection.
File-Sharing under the DMCA. The use of file-sharing networks to download and share copyrighted works without permission from the copyright owner -- like software, music, movies, TV shows, games and images -- violates copyright laws. Both the person who makes an illegal copy of a copyrighted work available and the person who receives or downloads an illegal copy have violated copyright laws and Stanford policies. Under the DMCA, a copyright owner or an authorized agent may lawfully scan Internet traffic and send a complaint to Stanford as the ISP. If the copyright owner chooses to follow-up with civil litigation, it may file a "John Doe" lawsuit
against the IP address, and Stanford would have to provide
the identity of the Stanford network user in response to a
valid subpoena. Copyright violations can result in penalties
of up to $150,000 per violation. In February of 2007, the Recording
Industry Association of America began a campaign of sending
out "Early Settlement Notices" to university students throughout
the country. Under this program, if students are not
willing to settle file-sharing violations with the Recording
Artists for several thousands of dollars, then a lawsuit against
the student is filed. As of September 2007, 17 Stanford
students have been targeted by this program. The Recording
Industry promises to continue to send these notices each month,
and Stanford continues to receive its share.
Stanford policy, in Administrative Guide Memo 62 (http://adminguide.stanford.edu/62.pdf),
prohibits the copying or distributing of copyrighted materials
without permission. Stanford follows up and responds to every
DMCA complaint.
Stanford's Copyright Complaint Policy for Students: Upon
receipt of a first copyright complaint, the Information Security
Office will notify the student. The student has to respond
to the complaint within a short timeframe provided in the notification,
usually 2 days. If the student does not respond within
that timeframe, the Internet connection will be terminated
and the student will be charged a $100 fee to be reconnected
to the Internet. Upon receipt of a 2d DMCA Complaint,
a student's internet connection will be terminated immediately.
A student will be charged $500 to be reconnected to the Internet.
The student's Residence Dean (undergrad) or Department Chair
(graduate student) will be notified about the incident. On
a 3d DMCA complaint, a student's internet connection will be
immediately disconnected. The matter will be referred
to Judicial Affairs, and the student may be charged up to $1000
to obtain new Internet privileges. The entire policy
is online at http://www.stanford.edu/dept/legal/recent/DMCAReconnectfee5-11-07.Web.pdf .
For more information, please refer to Residential Computing's
file-sharing website, http://rescomp.stanford.edu/info/dmca/ and
the Provost's Letter to the Stanford Community of September
2004, http://www.stanford.edu/dept/legal/Worddocs/Provost_ltr.pdf
Stanford's Copyright Complaint Policy for Faculty
and Staff: When staff receive a first or second
DMCA complaint, the matter is referred to a supervisor and
to HR. If a faculty member at Stanford receives
more than one DMCA complaint, the matter is referred to
a Department Chair. Upon receipt of a very rare third DMCA
complaint, administratively, Stanford terminates Internet
connectivity, including disabling the SUNet ID, and the matter
is referred on for discipline: faculty are referred to the
Provost; and staff are referred to HR and can expect to be
terminated. For more information, please refer to Residential
Computing's file-sharing
website, http://rescomp.stanford.edu/info/dmca/ and
the Provost's Letter to the Stanford Community of September
2004, http://www.stanford.edu/dept/legal/Worddocs/Provost_ltr.pdf
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LIBRARY COPYRIGHT CONSIDERATIONS
Library Exemption for Reproduction of Copyrighted Works. Copyright laws provide certain exemptions for libraries and archives to reproduce copyrighted works.
Filing a Course Reserve. Some libraries at Stanford will not accept multiple photocopies of copyrighted materials needed for course reserves without first having permission from the copyright holder. Other libraries on campus will accept a limited number of photocopies for course reserves. Consult individual libraries for their policies. The Green Library policy on course reserve is located at http://library.stanford.edu/services/course_reserves/index.html.
Allow Several Months for Course Reserve Permission. Note that filling course reserve requirements may take two to three months before the quarter begins if the library does not already have a copy of the publication and copyright permission is needed.
Contact. For further questions about the library exemption, library policy and course reserves, please contact:
Print Reserves: (650) 723-2201 Ajit Gellon, Print Reserves Processing Supervisor, (650) 725-2191, agellon@stanford.edu. Guidelines for submitting print lists Electronic form for submitting print materials Media Reserves: (650) 723-9394 Joe Leggette, Media and Reserves Specialist, (650) 725-1179, jleggett@stanford.edu
Guidelines for submitting media materials Electronic form for submitting media lists
Fax for both print and media reserves: (650) 723-3992
For information about reserve operations in campus libraries, contact the relevant library. (See http://library.stanford.edu/libraries_collections/librcoll_a_z.html.)
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OBTAINING PERMISSION TO USE COPYRIGHTED MATERIAL
In General. If an exception (such as fair use, the library exception, face-to-face teaching activities or distance education) is not clearly available, permission to use a copyrighted work must be obtained from the owner of the copyright holder. A request to use copyrighted material usually can be sent to the permission department of the publisher of the work. Assume four to six weeks for a request to be processed. Permission requests should contain
1. Title, author and/or editor, and edition.
2. Exact material to be used.
3. Number of copies to be made.
4. Intended use of the material, e.g., educational.
5. Form of distribution, e.g., hard copy to classroom, posted on Internet with password protection.
6. Whether material is to be sold (e.g., as part of a coursepack).
Journal Articles. The Stanford libraries have blanket copyright permission from many journals. Before forwarding a request for an article, check with the appropriate library to see if there is a blanket permission covering the article you would like to use.
Copyright Clearance Center (CCC). The CCC is able to give permission to use a wide number of materials for a fee. Please contact CCC at http://www.copyright.com or (978) 750-8400.
Evidence of Permission. Written permission should be obtained and kept by the academic department. If oral permission only is obtained, a written record should be kept of the oral permission.
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CREATION OF COPYRIGHTED WORKS AT STANFORD UNIVERSITY
Research Policy Handbook Section 5.2. This Copyright Reminder primarily addresses the use of third party copyrighted content. Stanford University Research Policy Handbook Section 5.2 governs the creation of copyrighted works at Stanford and by Stanford faculty, staff, students and affiliates.
The general principle states:
Copyright is the ownership and control of the intellectual property in original works of authorship which are subject to copyright law. It is the policy of the University that all rights in copyright shall remain with the creator unless the work is a work-for-hire (and copyright vests in the University under copyright law), is supported by a direct allocation of funds through the University for the pursuit of a specific project, is commissioned by the University, makes significant use of University resources or personnel, or is otherwise subject to contractual obligations.
Please review the entire policy at http://www.stanford.edu/dept/DoR/rph/5-2.html.
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PUBLISHING WORKS IN JOURNALS
Stanford does not mandate any copyright position that its
community members should take when publishing articles or
books. This section is provided as information to
our community.
The common practice in academic publishing is to assign
copyright in the article or book to the publisher. If
you no longer own the copyright, you no longer control what
use is made of your article. Make sure before assigning
the article you understand what uses you may make of your
article after it is published. Consider if these options
may make sense for your circumstances:
• Asking for outright copyright ownership with
a license granted to the journal to publish;
• Publishing
in open access journals;
• Assigning copyright
to journal, with a license back from the journal to the author
enabling the author to:
(1) post on an institutional website in a pdf format
(2)
make derivative works
(3)
make copies for educational purposes
(4)
allow others to make copies for educational purposes
(5)
same rights for Stanford/originating institution
For more information and resources, see The Author's Rights
Addendum, http://www.arl.org/sparc/author/addendum.html;
Indiana University Model, http://www.copyright.iupui.edu/nego_doc.htm Creative
Commons Model, http://sciencecommons.org/projects/publishing/oalawpub.pdf
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COPYRIGHT AND FAIR USE RESOURCES
Stanford's Copyright Ownership Policy. The University's copyright policy establishes that all rights in copyright, regardless of their form of expression, remain with the creator, except in specified cases where law or University policy require otherwise. For more information, please refer to the policy at http://www.stanford.edu/dept/ DoR/rph/52.html.
Stanford's Fair Use Resources. Further guidelines and useful material are located at http://fairuse.stanford.edu.
Guidelines for Classroom Copying. These guidelines were prepared by the Authors League of America and the Association of American Publishers. http://caselaw.lp.findlaw.com/casecode/uscodes/17/chapters/1/sections/section_107.html.
Guidelines for Educational Multimedia. These guidelines were prepared by the Consortium of College and University Multimedia Centers. http://www.ccumc.org/copyright/ccguides.html.
Further Assistance. Please contact Lauren Schoenthaler in the Office of the General Counsel at lks@stanford.edu.
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Last modified:
October 17, 2007 |
