Under the 1976 CONTU guidelines (see Appendix D), systematic photocopying of copyrighted materials is not permitted, but certain copying may be considered fair if there is no intent to avoid purchasing or subscribing to a publication. Some of the important elements of the CONTU guidelines may be summarized as follows:

• The guidelines apply to periodicals published within five years of the interlibrary loan request. (Copying from periodicals older than five years is not unlimited; it remains subject to the provisions of Sections 107-108 of the copyright law.)

• Filled requests from any single periodical title (not single issue), or from any other material described in 108(d), including poetry and fiction anthologies, may not exceed six copies within a calendar year.

• The library may request a loan if an item that it owns is currently unavailable or if a periodical is currently on order.

• Unless the library requesting a photocopy acknowledges COPYRIGHT COMPLIANCE on the request by indicating either CCG (conforms to the copyright guidelines) or CCL (conforms to the copyright law), the supplying library may refuse to fill the request.

When research needs require copying beyond the limits of fair use, permission to copy must be obtained from the copyright owner and/or payment of royalties may be necessary. Examples of copies requiring permission are:

• the reproduction of several articles from a recent issue of a journal;

• the duplication of a substantial portion of a copyrighted work that is available for purchase at a reasonable price.

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Copying for Course Packs and Customized Anthologies

Copyright litigation involving academic users has focused on this type of "anthologies" (collections of articles, or chapters bound together), which are perceived as substituting for textbooks and thus as reducing the potential market for copyrighted publications. The Courts’ decisions in the 1989 lawsuit against Kinko’s and the 1992 lawsuit against Michigan Document Services and James M. Smith clearly reinforce the necessity of obtaining copyright owners’ permission before producing such customized anthologies. This holds true whether the course pack is produced by an individual or by a copying service.

More information can be obtained through the College’s campus bookstore, but some basic guidelines are as follows:

• Every article or chapter in a course pack, if derived from copyrighted material, requires permission, either from the copyright owner (usually the publisher) or through a royalty fee paid to the Copyright Clearance Center. Each item in the packet also must include a notice of copyright--e.g., "Copyright 1990 by Academic Books, Inc." Permission needs to be requested for each semester in which the course pack is assigned.

• Adequate time (6 to 8 weeks at a minimum) should be allowed for obtaining copyright permissions. The College’s campus bookstore, through its contracted printing center, is able to obtain the necessary permissions on behalf of the faculty or staff member. Whether a bookstore, copy center, or an individual handles requesting permissions from copyright holders, these must be obtained before proceeding with the compilation.

• Course packs must be sold to students at or below cost. Under no circumstances can a faculty member, bookstore, or institution make a profit by selling them. The cost of a course pack includes the cost of processing copyright permissions, any royalty fees required by the copyright holder, and actual photocopying charges.

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UNPUBLISHED WORKS

Manuscripts, letters, and other unpublished materials are likely to be protected by copyright regardless of age, even if they lack a notice of copyright. Unpublished works created before January 1, 1978 are protected through December 31, 2002, or life plus 70 years, whichever is greater. But, if the unpublished work is published before December 31, 2002, then it will be protected for life plus 70 years or until December 31, 2047, whichever is greater.

Unpublished works that belong to the Library Archives may be reproduced in facsimile format for preservation purposes or for deposit for research use in another library or archives. Copies may usually be made for individual researchers under the law’s Fair Use provisions. Ownership of the physical object does not signify ownership of intellectual property rights. Beyond individual fair use, permission must be granted.

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Separate copyrights usually exist for sheet music and recordings of musical performances. Additional copyrights may exist for the lyrics. Music dealers usually sell sheet music in sets (e.g., band sets, chorus sets, etc.); hence, single copies may not be available, but can be ordered directly from the publisher. Copying sheet music without permission deprives the composers of royalties.

Fair use guidelines authorize limited copying and altering of sheet music. They also authorize recording student performances. What can be copied varies in accordance with circumstance as follows:

For a Performance:

Emergency copying is permitted so long as replacement copies are subsequently purchased.

An entire performable unit (section, movement, aria, etc.) if the unit is out of print or available only in a larger work.

Excerpts may comprise no more than 10% of a whole work and may not constitute a performable unit.

A single copy may be made for the purpose of constructing aural exercises or examinations. Otherwise, the restrictions on copying non-music recordings apply. [See the section in this handbook on Sound Recordings (Other than Musical).]

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Public performance of a copyrighted work may also constitute copyright infringement. A performance that takes place at the College will generally be considered a public performance. Albion College has performance agreements for music and dramatic performances with ASCAP and BMI. Copies of these agreements are on file with the Office of the Vice President for Finance and Management. Any music or dramatic work not covered by these agreements requires permission from the copyright owner, and individuals or groups desiring to use such works must seek permission of the copyright owner. Public performances of copyrighted works, however, are permitted under certain circumstances. The statute distinguishes between dramatic works and nondramatic works, grouping musical performances (but not musicals) with the latter. The college has determined that the following activities are permitted without first obtaining copyright permission:

• when a performance takes place in the course of a face-to-face teaching activity (i.e. instructional performances and displays that are not transmitted); and

• when it is conducted in a classroom or similar place (such as a library) devoted to instruction; and

• in the case of an audiovisual work, when the copy (e.g., film or videotape) has been lawfully made. (See also the section in this handbook on Audiovisual Works.)

Performances of dramatic works at the College must meet the above three criteria. If in doubt, you should seek permission from the copyright holder. If the three criteria of this exception are not met, performance of a dramatic work will constitute copyright infringement.

Permission to perform a dramatic work does not automatically give license to videotape the performance and add that videotape to the College’s library or drama department collection. If the dramatic work is protected by copyright, permission is required to videotape a performance as well as to retain and distribute that videotape.

In addition to the exemptions discussed above, performances of nondramatic works at nonprofit educational institutions may be:

• transmitted to other classrooms and to handicapped persons unable to be present in the classrooms, if the performance and the transmission are part of the instructional program; or

• open to the public if the performance is not broadcast, the performers are not compensated, there is no admission charge, any proceeds go to educational purposes, and the copyright owner does not object in writing at least seven days before the performance.

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MUSIC

The use of music raises several issues under copyright law. First of all, when music is performed live, the performance will be governed by the rules discussed in the preceding section. When pre-recorded music is played before a group, there is not only a performance of the musical work but also of the particular recording. Under copyright law, however, the owner of a copyright in a musical recording, as distinct from the underlying composition, does not have the exclusive right to perform the record publicly. Therefore, when pre-recorded music is performed, only the performance of the underlying composition need be analyzed under the statutory provisions governing performances to ensure compliance with copyright law.

On the other hand, the owner of a copyright in a musical recording does have the exclusive right to reproduce the recording. Therefore, when pre-recorded music is copied, for example by making a tape of a song on a compact disc, the exclusive rights of both the owner of the copyright in the recording and the owner of the copyright in the composition may be infringed.

1. Emergency copying is permitted to replace purchased copies that for any reason are not available for an imminent performance, provided that purchased replacement copies shall be substituted in due course.

2. For academic purposes other than performance, single or multiple copies of excerpts of works may be made, provided that the excerpts do not comprise a part of the whole which would constitute a performable unit such as a section, movement, or aria, but in no case more than ten percent of the whole work. The number of copies shall not exceed one copy per pupil.

3. Printed copies that have been purchased may be edited or simplified, provided that the fundamental character of the work is not distorted and that the lyrics, if any, are not altered, or lyrics added if none exist.

4. A single copy of recordings of performances by students may be made for evaluation or rehearsal purposes and may be retained by the college or individual professor.

5. A single copy of a sound recording (such as a tape, disc, or cassette) of copyrighted music may be made from sound recordings owned by the college or an individual professor for the purpose of constructing aural exercises or examinations and may be retained by the college or professor.

• Copying to create or replace or substitute for anthologies, compilations or collective works.

• Copying of or from works intended to be "consumable" in the course of study or of teaching, such as workbooks, exercises, standardized tests and answer sheets and like materials.

• Copying for the use of performance, except as in "Emergency Copying" above.

• Copying for the purpose of substituting for the purchase of music, except as in "Emergency Copying" and "Academic Purposes" above.

• Copying without inclusion of the copyright notice that appears on the printed copy.

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AUDIOVISUAL MATERIALS

Possession of a film or video does not confer the right to show the work. The copyright owner specifies, at the time of purchase or rental, the circumstances in which a film or video may be "performed." For example, videocassettes from a video rental outlet usually bear a label that specifies "Home Use Only." However, whatever their labeling or licensing, use of these media is permitted in an educational institution so long as certain conditions are met. Section 110(1) of the Copyright Act of 1976 specifies that the following is permitted:

Performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance or the display of individual images is given by means of a copy that was not lawfully made . . . and that the person responsible for the performance knew or had reason to believe was not lawfully made.

Additional text of the Copyright Act and portions of the House Report (94-1476) combine to provide the following, more detailed list of conditions [from Virginia M. Helm, What Educators Should Know about Copyright (Bloomington, IN: Phi Delta Kappa Educational Foundation, 1986)]:

1. They must be shown as part of the instructional program.

2. They must be shown by students, instructors, or guest lecturers.

3. They must be shown either in a classroom or other school location devoted to instruction such as a studio, workshop, library, gymnasium, or auditorium if it is used for instruction.

4. They must be shown either in a face-to-face setting or where students and teacher(s) are in the same building or general area.

5. They must be shown only to students and educators.

6. They must be shown using a legitimate (that is, not illegally reproduced) copy with the copyright notice included.

Further, the relationship between the film or video and the course must be explicit. Films or videos, even in a face-to-face classroom setting, may not be used for entertainment or recreation, whatever the work’s intellectual content.

The Library has a license from the Motion Picture Licensing Corporation (MPLC) which permits videocassettes in its collection which are covered under that license to be viewed by students, faculty or staff at workstations or in small-group rooms inside the Library. These videos may also be viewed at home (e.g., in a dorm room), so long as no more than a few friends are involved. Larger audiences, such as groups that might assemble in a residence hall living room, require explicit permission from the copyright owner for public performance rights. No fees for viewing a video are permitted even when public performance rights are obtained.

Permission from the copyright holder must be obtained prior to copying any copyrighted film or videotape. College departments will not duplicate any film or videotape without written authorization indicating that the copyright holder possesses all applicable rights to the work, including literary rights upon which the work is based; music rights (composition and performance); rights to all visual and graphic elements (slides, graphs, still photographs) contained in the work; and performing artists’ releases. When you obtain written authorization, make sure that the number of copies of the work that can be made and the length of time they can be retained is indicated. You should also request that the copyright holder indemnify the College against any infringement actions pertaining to the work.

One copy of a purchased foreign-standard videotape may be made to transfer the program to NTSC (U.S.) format. One copy of a purchased U.S. format videotape may be made for use by Albion faculty use while teaching in a foreign country.

Copying Television Programming Off the Air for Classroom Use:

In 1981, an Ad Hoc Committee on Copyright Law negotiated guidelines for off-air recording of broadcast programming for educational purposes. These guidelines represent the committee’s "consensus as to the application of ‘fair use’ to the recording, retention, and use of television broadcast programs for educational purposes. They specify periods of retention and use of such off-air recordings in classrooms and similar places devoted to instruction and for homebound instruction. The purpose of establishing these guidelines is to provide standards for both owners and users of copyrighted television programs."²

These guidelines are not embedded in the Copyright Act and it is unclear how courts may choose to apply them. In the absence of explicit legislative or judicial acts, strict adherence to the guidelines may serve as some protection should the issue of infringement arise. See Appendix F, "Guidelines for Off-Air Recording of Broadcast Programming for Educational Purposes."

Copying filmstrips and slide sets in their entirety, or altering a program, requires written permission. Transferring a program to another format (e.g., filmstrip to video, filmstrip to slides) also requires permission. Copying a few frames or slides may be a fair use, if the four fair use criteria are met.

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Microforms (microfilms, microfiche, etc.) are protected under the copyright act. The rules governing microforms are determined by the nature of the work contained therein (e.g., a literary work, graphic work, etc.). Microform copies of old books, periodicals, and manuscripts may be copied freely if the original works are in the public domain. If the original publication is copyrighted, copies may be made using the rules that apply to books and periodicals.

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Cassettes or disks may not be copied unless all of the following conditions are met:

• the library currently has or had the item in the library’s collection;

• the library’s copy is lost, damaged, deteriorating, stolen, or its current format is obsolete;

• a replacement recording from a commercial source cannot be obtained at a fair price.

For example, the fact that a replacement cannot be obtained at a fair price does not entitle students and faculty to make copies of copyrighted audiotapes in the Library’s collection. Recording brief excerpts is considered fair use, however. For guidelines applicable to musical recordings, see the section "Copying Music for Educational Purposes."

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Art works are subject to copyright. The duplication of such works in their entirety by photography, sketching, rendering, casting, or printing is a violation of the copyright law. The only exception is for copying illustrations in a book or periodical under the terms of the "Agreement on Guidelines for Classroom Copying" (see Appendix B) or the library photocopying section of the law.

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Internet use and intellectual property rights are the subject of current intense debate, and there are no guidelines other than those we may infer from the use of other media. Use of the Internet, specifically the ease with which data can be transmitted to others and/or altered without permission, gives rise to concerns regarding intellectual property in the global information infrastructure. If you send a message on the Internet you hold the copyright, but realistically you must expect that others will forward it to other users. Material copyrighted to others should not be used other than under fair use, nor should Internet users forward information that they suspect is copyrighted. When creating home pages on the Web, care should be taken not to incorporate copyrighted material, because mounting on the Web is often interpreted as providing multiple copies, not the single copy allowed under fair use. Privacy rights of individuals, e.g., subjects of photographs, must be observed.

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As an Online Service Provider (OSP), Albion College is required by the Digital Copyright Millennium Act of 1998 to establish limitation of liability for copyright infringement by:

• designating an agent to receive statutory notices from copyright owners about infringements and to send statutory notices to affected subscribers;

• advising the Copyright Office of the agent’s name and address and posting that information on the OSP’s website;

• developing and posting a policy for termination of repeat offenders and providing network users with information about copyright laws;

• complying with "take down" and "put back" notice requirements;

• ensuring that the system accommodates industry-standard technical measures used by owners to protect their works from unlawful access and copyright infringement.

As an OSP, Albion College has limited liability for copyright infringement by third parties, which may include faculty under some circumstances. Limitation of liability applies to the college as an institution, not to individuals. The Act determines that the knowledge or actions of a faculty member will not be attributed to the institution when all of the following conditions are met:

• the faculty member’s infringing activities do not involve providing online access to course materials that were required or recommended during the past three years;

• the institution has not received more than two notifications over the past three years that the faculty member was infringing;

• the institution provides all of its users with information describing and promoting compliance with copyright law.

The statutory rules do not require the College actively to monitor material on the Internet. The limitation requires an OSP to take action when it has "actual knowledge" of an infringement (by facts brought to its attention or by notice from the copyright owner), but it does not impose the burden on the OSP to monitor or discover infringing behavior. The law also gives immunity from third party user claims, provided there is good faith compliance with the statutory rules.

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We define multimedia as a computerized format which combines various types of media, including but not limited to graphics, film, sound, television, and text. Some see it as a newly emerging format, but the combining of media in multimedia’s predecessor, audiovisual presentation, is not new (see the section "Student Use of Copyrighted Materials for Class Projects"). How copyright and intellectual property rights are defined in this format, however, is currently a matter of intense discussion. There is little, if any, case law providing definitive parameters. In addition, we must be aware of other pertinent concepts, such as privacy rights and complex contracts, which protect individuals.

For use in a class as part of a syllabus, you will be relying on precedents in copyright established for other formats (see the section "Audiovisual Materials" as well as Appendix E). They require that the multimedia be presented only in the classroom setting to class members and the instructor. If you are planning to use the multimedia package in other settings, you need to be aware of the need to get permission for all clips of any kind that you are using. You may be taking profit away from those who own the intellectual property and distribution rights. Furthermore, as with all graphics, especially photographs, you must respect privacy rights of individuals portrayed, and permissions must be gained.

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Albion College negotiates site licenses with software vendors whenever possible for software products that are selected for extensive use. These arrangements provide the college community with efficient access to computer programs that support the curriculum while assuring the copyright owner a fair royalty. Check with Information Technology to determine the availability of particular software and the license restrictions that apply.

Other products may be licensed on an individual or limited basis. However, copying is strictly limited except for backup purposes. The Copyright Act allows the purchaser of software to:

• make one and only one copy of software for solely archival purposes in case the original is destroyed or damaged through mechanical failure of a computer. However, if the original is sold or given away, the archival copy must be destroyed.

• make necessary adaptations to use the program.

• add features to the program for specific applications. These improvements may not be sold or given away without the copyright owner’s permission.

Printed documentation is covered by copyright as indicated inside each volume of documentation.

In many cases, software may be lent but only for temporary use, not for copying. If the borrower transfers the software to a hard disk, the program must be deleted when the borrowed item is returned. Check the software license for restrictions. Circulating software in the Library’s collection must include, and computer labs and other public facilities must post, the following warning to caution against illegal copying of software: