Copyright and Fair Use: Compliance Guidelines

This memo was sent to all CSULB Faculty via email on Tuesday, September 3, 2013.

Dear Faculty,

The purpose of this memo is to share important information regarding copyright laws.  Key points are:

• Publishers have become more litigious with respect to copyright violations; a faculty member who does not follow the legal parameters of copyright risks liability.·        
• CSU legal counsel will defend and the CSU will indemnify a faculty member who is sued in the course of faithfully and legally carrying out assigned University responsibilities; however, it is probable that the CSU Office of General Council would decline to defend a faculty member if our own investigation revealed evidence of a willful disregard of the law.
• To make it easier for faculty to understand and comply with copyright law, the University has created a website with useful information.

Copyright law (Title 17 of the United States Code) is dense and vague and can be difficult to understand.  The doctrines and acts associated with copyright, such as Fair Use, and the TEACH act are equally confusing.  Nonetheless, copyright laws must be followed, and ignorance of the law is not a defense.  Publishers and groups affiliated with publishers are becoming very litigious. Our use of copyrighted materials is being monitored and in turn, in a response to what publishers see as a disregard for the laws protecting their intellectual property, publishers and groups affiliated with them are filing lawsuits.  This is especially true for higher education, with faculty members particularly at risk of being sued.

 In response to these concerns, Library Associate Dean Tracey Mayfield has created an outstanding resource for faculty and others wishing to know more about copyright law and how to "be legal."  This resource is in an easy-to-use format on the Library's website. It includes information and tools such as:

• Compliance Guidelines for faculty
• Common Scenarios that depict real-life situations and guidance on how to handle them
• Links to tools such as the Fair Use Checklist
• Information on the actual Copyright law itself and on Fair Use
• Where to get help

The intent of the website is to provide enough information without being overwhelming.  The website will continue to grow and change over time as copyright laws are tested in US courts.  Anyone with suggestions for added content may contact Tracey. 

Faculty and educational institutions are given some latitude under the Fair Use Doctrine in using materials protected by copyright laws for educational purposes; however, laws must be followed.  A faculty member who does not follow the legal parameters of copyright will incur liability exposure.  CSU legal counsel will defend, and the CSU will indemnify, a faculty member who is sued in the course of faithfully and legally carrying out assigned University responsibilities.  It is highly probable that the Office of General Council would decline to defend a faculty member in a situation where our own investigation revealed evidence of a willful disregard of the law.

On behalf of the university community, I wish to thank Tracey for creating this excellent resource.

David A. Dowell, Ph.D.
Interim Provost, Senior Vice President for Academic Affairs, and Professor of Psychology

Computer software is tangible material and can be copyrighted. The Doctrine of Fair Use applies to computer software.

Permissible uses of copyrighted software owned by or licensed to the University or its faculty:

• Copying it by using it in a computer's memory.
• Making one backup or archival copy.
• Making adaptations in order to use a particular machine.
• Lending it.
• Selling it, in which case the backup or archival copy must be destroyed.

Prohibited uses of copyrighted software:

• Making copies for gift or sale.
• Copying a computer program purchased for use at the University in order to use it at home.
• Copying a computer program purchased for use in one department or school for use in another department or school. A site license should be negotiated to allow multiple uses on campus.

Copying of copyrighted materials for student learning and research use without written permission may occur in the following instances:

Single copying for instructors
Single copies may be made of any of the following by or for professors at their individual request for scholarly research or use in teaching or preparation to teach a class:

• One chapter from a book;
• An article from a periodical, journal, or newspaper;
• A short story, short essay, or short poem, whether or not from a collective work;
• A chart, graph, diagram, drawing, cartoon, or picture from a book, periodical, or newspaper.

Multiple copies for student learning use
Multiple copies (not to exceed more than one copy per student in a course) may be made by or for the instructor teaching the course for student learning use or discussion; provided that the following three criteria are met:

• The copying meets the tests of brevity and spontaneity (as defined below).
• The copying meets the cumulative effect test (as defined below).
• Each copy includes a notice of copyright. An example is "this material may be protected by Copyright law (title 17, US Code)."

Definitions:
Brevity: Either a complete article, story or essay of less than 2,500 words, (usually varies 3-8 pages depending on size of page and type) or an excerpt from any prose work of not more than 1,000 words or 10 percent of the work, whichever is greater.

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 school in which the copies are made.

Permission from copyright holders is often needed when creating course materials, research papers, and web sites. You need to obtain permission when you use a work in a way that infringes on the exclusive rights granted to a copyright holder (i.e. outside the boundaries of fair use).

Steps that need to be followed to obtain permission to use copyrighted material:

1. Determine if permission is needed for the work you want to use.
2. Identify the copyright holder or agent. 
3. Send written request for permission to use. Remember to give yourself ample lead time, as the process for obtaining permissions can take months. Decide if you are willing to pay a licensing fee/royalty.
4. If the copyright holder can't be located or is unresponsive (or if you are unwilling to pay a license fee), be prepared to use a limited amount that qualifies for fair use, or use alternative material.

For more information, including what to include in a request to obtain permission, visit the Copyright Clearnce Center's Obtaining Permission page.

Faculty can request the library to place books on reserve via the Reserves Request Form.  Items may also be submitted at the Circulation Desk on the 1st floor of the Library. Read our Course Reserves page for more information.

Print Reserves (Traditional):

• Faculty copies (items that faculty have loaned the library) are kept behind the Circulation Desk.
• CSULB Library copies (items the Library owns) are either kept behind the Circulation Desk or in the desginated area in Reference on the 1st floor.
• Some items may be "Library Use Only," where they are only available for use in the Library.
• All copies are removed at the end of the semester.  Faculty copies are returned to their owners and Library copies are returned to their original location in the Library.

Electronic Reserves (eReserves):

• Materials are accessible through the Library’s web site and are password protected.  If items are used in subsequent semeseters, the student password MUST be changed.
• Files are stored on the library’s server.
• Materials placed on e-reserves are kept for one semester.
• The library will only scan 1 chapter (or 10% of a non-chapter book) or 1 journal article per issue into eReserves.
• For journal articles or book chapters, the full citation is included in the document.
• There is a limit of 25 eReserves items per course.

Review the "Common Scenarios" page for more guidelines on the fair use and course reserves.

The CSULB library honors requests from faculty to place course related items on reserve that are in compliance with US Copyright Law (Title 17 U.S.C. Section 107) and the fair use guidelines.