2.03.04 - Copyright and Fair Use

Policy Title: Copyright and Fair Use

Impact: Employees, Students, and all NIC Community Members

Responsibility: Accreditation Executive Committee

Effective Date: 02/26/2020

Revised Date:

Reviewed Date:

Relates to Procedure: 2.03.04

Legal Citation(s): United States Copyright Law, Title 17, U.S. Code, 1976; The Fair Use Guidelines of 1997; the TEACH Act of 2002; the Digital Millennium Copyright Act

I. Policy Statement

The North Idaho College Copyright Policy and Procedure establishes guidelines regarding the “Fair Use” of copyrighted material, use of multimedia and copyrighted works in the classroom, and information regarding the Digital Millennium Copyright Act.

II. Overview & Purpose

North Idaho College bases its copyright policy and procedure upon United States Copyright Law, Title 17, U.S. Code, 1976, the Fair Use Guidelines of 1997, the 
TEACH Act of 2002, the Digital Millennium Copyright Act (DMCA), and the DMCA exemptions of 2006. The copyright law of the United States governs the making of photocopies or other reproductions of copyrighted material.  This policy and procedure is intended to provide guidance and information for college faculty, staff and students to better understand what the law allows, and why some services that are technically possible may nevertheless face restriction.  It is the responsibility of departments to consult and follow the copyright laws and to develop their own supplemental rules and procedures for copyright compliance as appropriate to address issues or materials unique to the department. Molstead Library maintains resources to understand copyright laws. North Idaho College remains open to receiving any new information on or interpretation of copyright law. 

III. Scope

This policy and procedure apply to all members and agents of the North Idaho College community, including the Board of Trustees, administrators, faculty, staff, students and alumni and any other person who has access to information technology resources at North Idaho College.

IV. General Information About Copyright

Copyright grants to the author or originator the sole and exclusive privilege of creating multiple copies of literary or artistic productions and publishing and selling them. Copyright protection exists for original works fixed in any tangible medium of expression, including:

• literary works;
• musical works, including any accompanying words;
• dramatic works, including any accompanying music;
• pantomimes and choreographic work;
• pictorial, graphic, and sculpture work;
• motion pictures and other audiovisual works;
• sound recordings.

Note: Works in the U.S. public domain can be freely used without obtaining permission.

V. Copyright Protections and Exemptions

The copyright holder has important and exclusive rights. These rights include the right to copy, distribute, adapt, perform, display, and create derivative or collected works. In general, any use of copyrighted materials requires permission from, and potentially payment of royalties to, the copyright holder unless the use falls within an exemption in the law. These include the fair use exemption and the classroom exemption.

The North Idaho College community members must make demonstrable good faith efforts to understand the fundamentals of copyright law and the reasonable application of fair use. When North Idaho College community members plan to use a copyrighted work in their teaching or research, they must examine the specifics of their use within the context of the law in order to determine whether they should seek permission for the use or depend instead upon the fair use or classroom exemption.

A.  Classroom Exemption

This exemption applies to face-to-face teaching in a classroom. Faculty and students may perform or display, but not reproduces or distribute, any copyrighted work in the course of face-to-face teaching activities in a classroom, without seeking permission.

B.  Fair Use Exemption

Other educational uses may be exempt from permission if they fall within the fair use exemption. An appropriate exercise of the fair use exemption depends on a case-by-case application and balancing of four factors as set forth in a statute enacted by Congress:

1)  The purpose and character of the use, including whether the copied material will be for nonprofit, educational, or commercial use;

2)  The nature of the copyrighted work, with special consideration given to the distinction between a creative work and an informational work;

3)  The amount, substantiality, or portion used in relation to the copyrighted work as a whole; and

4)  The effect of the use on the potential market of the copyrighted work.

See Procedure 2.03.04 for discussion of the fair use exemption applied to typical academic uses.

VI. Responsibilities

Compliance with the federal copyright law and with this policy is the responsibility of every member and agent of the North Idaho College community, including the Board of Trustees, administrators, faculty, staff, students and alumni, and any other person who has access to information technology resources at North Idaho College.  North Idaho College expects all members of its community to take a personal interest in becoming informed about how copyright law affects our work at North Idaho College.

The North Idaho College President’s Cabinet has responsibility for enforcing this policy and procedure. The Director of the Library supports the interpretation of this policy and procedure by maintaining library materials for employees and students. Anyone having questions about compliance with copyright requirements after reviewing the materials available in the library, may address them to the President’s Office to request review for a legal opinion. The President may designate someone to review such requests. The granting of a request for legal opinion is discretionary.

VII. Definitions

1. Copyright (as defined by the U.S. Copyright Law).  A form of protection provided by the laws of the United States for "original works of authorship," including literary, dramatic, musical, architectural, cartographic, choreographic, pantomimic, pictorial, graphic, sculptural, and audiovisual creations. 
   
   
2. Fair Use (as defined by U.S. Copyright Law). Fair use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research that does not infringe copyright.
   
   
3. Derivative Work.  A derivative work is a work based on or derived from one or more already existing works. Common derivative works include translations, musical arrangements, motion picture versions of literary material or plays, art reproductions, abridgments, condensations of preexisting works, and “new editions” of preexisting work.
   
   
4. Collective Works.  Collective works, also known as compilations of data or compilations of preexisting works, are materials selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes a new work.
   
   
5. Royalties.  A percentage of gross or net profit or a fixed amount per sale to which a creator of a work is entitled, which is agreed upon in a contract between the creator and the manufacturer, publisher, agent and/or distributor.
   
   
6. Creative Work. A tangible form of original creative expression including fine artwork, choreographic works, literary works, filmmaking, dramatic works, sound works, architectural works, and musical works.
   
   
7. Informational Work. A tangible form of work that includes ideas, procedures, methods, systems, processes, concepts, principles, or discoveries; titles, names, short phrases, and slogans; familiar symbols or designs; variations of typographic ornamentation, lettering, or coloring; or listings of ingredients or contents.
   
   
8. Agent. A person who is authorized to act for an organization through employment, by contract or apparent authority.

Procedure Title: Copyright and Fair Use

Impact: Employees, Students, and all NIC Community Members

Responsibility: Accreditation Executive Committee

Effective Date: 02/26/2020

Revised Date:

Reviewed Date:

Relates to Policy: 2.03.04

Legal Citation(s): United States Copyright Law, Title 17, U.S. Code, 1976; The Fair Use Guidelines of 1997; the TEACH Act of 2002; the Digital Millennium Copyright Act

I. Procedure Narrative

The following procedure provides a guideline for applying and balancing the fair use factors provided by statute in the use of copyrighted materials. North Idaho College expects members of the college community to determine whether they should seek permission for a particular use or can depend upon the fair use exemption. The North Idaho College Library maintains informational materials and resources concerning copyright laws and fair use application in order to assist faculty, staff and students in the exercise of fair use rights.

Those seeking to use, reproduce, distribute, perform, or display copyrighted materials should consider the following four factors to determine whether the use falls within the fair use exemption:

1. Purpose and Character of the Use. Noncommercial and non-profit educational uses are favored over commercial ones. Transformative uses (i.e., using a portion of a work to create something new) are also favored.
   
   
2. Nature of the Work. Factual works are favored over use of highly creative works.
   
   
3. Amount and Substantiality of the Portion Used. Use is more likely to be considered fair for small quantities, where the portion used is not significant to the entire work, and where the amount is no more than needed for the intended educational purpose.
   
   
4. Effect of the Use on the Potential Market or Value. Factors favoring fair use include use of lawfully acquired or purchased copies of the original work, small numbers of copies being made. Factors arguing against fair use include repeated or long-term use, and making materials widely available such as on the Internet.

North Idaho College has set forth the following guidelines for typical academic uses. Compliance with these guidelines does not guarantee that a use falls within the fair use exemption. The four fair use factors set forth in the US Copyright Act as stated in NIC Policy 2.03.04 should be thoughtfully considered in each particular case. Materials in excess of fair use may still be used with appropriate permission and/or fees to the copyright holder.

II. Copying Materials for Instructional Use 

Under certain conditions specified in copyright law, a photocopy or other reproduction is not to be “used for any purpose other than private study, scholarship, or research.”

Instructors who intend to distribute photocopied materials to students in class should comply with the following:

• Materials should include a copyright notice on the first page;
  
  
• The students should not be assessed any fees beyond actual photocopying costs;
  
  
• The amount of the photocopied material should be reasonable in relation to the total amount of material assigned for one term;
  
  
• The effect of copying the material should not be detrimental to the market for the work;
  
  
• The amount of the photocopied material should be proportionally limited in relation to the complete work, such as:
  
  
  • One chapter from a book;
  • One article from a periodical or newspaper;
  • One short story, essay or poem, whether or not from a collective work.

III.  Displaying Media on Campus

Users must secure public performance rights prior to showing a copyrighted work on campus, unless the work was purchased with public performance rights attached.  However, an exemption to this requirement exists for classroom showings. Classroom use or showing of a copyrighted work by instructors or students is permissible when the use is part of the curriculum for a specific course; the audience is confined to the members of the course or other teaching activity; and the copy of the media is lawfully made and acquired. This includes display or performance of films/videos (including DVD, VHS, Blu-ray, streaming), songs, artworks, websites, plays, photographs, and poems or other literature.

Off-air broadcasts may be recorded and shown once to a single class within the first ten days after the date of the broadcast. This does not allow for multiple showings or general showings within North Idaho College.

IV.  Using Multimedia Materials

A student or faculty multimedia project may incorporate existing multimedia (music, lyrics, music videos, motion media, photographs, and illustrations).  The amount of the copyrighted work that may be used is restricted by specific portion limitations. In particular, the portion limitations relate to the amount of copyrighted work that can reasonably be used in educational multimedia projects regardless of the original medium from which the copyrighted works are taken. The borrowed material may not constitute more than 10% of the original work, nor may it comprise the majority of the finished product. Attribution and acknowledgement are required.

V. Digital Millennium Copyright Act

The Digital Millennium Copyright Act (DMCA) provides an opportunity for internet service providers (ISPs) to shield themselves from liability for the actions of their users that infringe on the copyrights of others. All institutions of higher education that provide internet access fall within the scope of the definition of an ISP, with relevant users being their students, faculty and staff.  In all cases, the fair-use exemption that allows use of copyrighted materials in narrowly defined circumstances applies to materials in digital form just as it applies to traditional media.

The DMCA does not require that North Idaho College “police” the internet activities of its faculty, staff or students. Rather, it requires that the College respond in specified ways to avoid institutional liability when evidence of infringing activity is brought to its attention or when it receives information that makes it apparent that infringing activity is occurring. 

VI. Requesting Permission

If a user seeks to use copyrighted works outside of the fair use guidelines, the user should contact the Library Director or designee for assistance in obtaining permission from the copyright holder. Users should make these requests in writing and include the following information:

• Title of the work
  
  
• Name of author, artist, etc.
  
  
• Description of the material to be used
  
  
• Nature of the intended use
  
  
• The expected audience or number of copies to be made, number of performances to be made, description of how the work will be displayed, etc., as applicable.

VI. Enforcement, Penalties for Infringement and Legal Review

Substantial penalties can be imposed for infringement of a copyright. Payment of actual damages for financial loss suffered by the copyright owner may be required. Statutory damages, for which no actual damages need be proved, may be assessed.

North Idaho College reserves the right to enforce violations of this policy. Failure to comply may result in suspension or termination of network services, or appropriate disciplinary action up to termination in the case of employees or expulsion in the case of students.

Members of the North Idaho College community may request legal review of a copyright situation or issue at the discretion of the President or the President’s designee. Such request must be in writing and should identify the issue to be addressed, as well as the requestor’s efforts to investigate and resolve the issue to that point. If the President or designee decides that the issue is of sufficient importance, the President or designee may request review by legal counsel of the situation or issue and share legal counsel’s review and conclusions with the requestor and the College community.