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Ownership of Instructional Materials and Protection of Copyright
To identify typical situations in which the development of copyrightable instructional materials occurs, and to provide information and guidance for those situations when copyrightable instructional materials are developed by full and part-time faculty and staff with different levels of support (including but not limited to: no institutional support, nominal support, substantial support, assigned duty, and extramural support) from Platt College
Revision Responsibility: Information Specialist
Responsible Executive Office: Dean of Nursing
Created: August 3, 2011, Revised: April 18, 2014 to include clarity of the College's ownership of courses, to clarify developmental conditions and ownership conditions.
Platt College employees are often directly involved in the development of copyrightable instructional materials for both on ground and online, because they provide substantial public resources to support the creation and production of these materials. Institutional involvement is likely to expand substantially with the increased use of information technology in the creation of multimedia instructional materials and distance education course offerings.
Platt College does not assert a property interest in materials which result from the author’s pursuit of research and scholarly activities. The creation of materials such as theses, scholarly articles, journal articles, research bulletins, monographs, and books occurs, in most circumstances, as an integral part of the author’s position as a Platt College employee.
In those cases where nominal and substantial institutional resources are provided to support the development of instructional materials, however, Platt College asserts ownership or other property interests. Platt College has sole ownership over courses created (either on ground or online) that are taught at the College. Further, it is the responsibility of full and part-time faculty and staff to ensure that any created materials do not contain any other copyrighted materials.
copyrightable instructional materials
Copyrightable instructional materials include, but are not limited to, the following: books, texts, glossaries, bibliographies, study guides, laboratory manuals, syllabi or tests; lectures, musical or dramatic compositions and scripts; films, filmstrips, slides, charts, transparencies and other visual materials; video and audio recordings of presentations, programs or performances; programmed instructional materials and computer programs; computer software; and educational multimedia projects incorporating various copyrighted media formats including, but not limited to, motion media, music, text material, graphics, illustrations, photographs and digital software which are combined into an integrated presentation.
Copyrightable instructional materials may be produced or developed under the following conditions:
No institutional support or involvement: A personal work resulting from a faculty or staff member’s efforts on his/her own time without any direct support from or through Platt College and without the use of any of the College’s resources beyond those resources (that are used for daily job requirements) provided by Platt College will belong solely to the creator. No institutional support or involvement excludes the creation and usage of any didactic, laboratory, or clinical course.
Nominal institutional support or involvement: Nominal use of College resources is use that is within the scope of teaching and scholarly and service activity of one’s employment at Platt College.
Substantial institutional support or involvement: Substantial faculty use of College resources results when the creation of the work requires use of College resources beyond those allocated in support of their academic or scholarly work within their respective department. Substantial staff use of College resources results when the creation of the work requires use of College resources beyond those allocated in support of the staff member's scope of employment.
As an assigned duty or pursuant to a work-for-hire agreement: Section 101 of the Copyright Act, which defines “work for hire,” states the default rule that, for works prepared by an employee in the course and scope of employment, the employer is deemed the initial owner of the copyright in the work.
With support from an extramural sponsor: Ownership of the copyrights in works created in the course of projects or programs funded by an extramural sponsor, for example, under a grant or similar arrangement, will be determined in accordance with the terms of agreement with the external party and applicable law. An agreement regarding copyright ownership must be signed by the College, the external agency, and the appropriate individuals before acceptance of outside funding. Extramural support must additionally meet the requirements as outlined in Policy 04:01:00 Grant Proposals and Management and Policy 04:03:00 Solicitation and Acceptance of Gifts.
It is the policy of Platt College that copyrightable instructional materials developed with no institutional support or involvement belong solely to the author, with the exception of the creation and usage of any didactic, laboratory, or clinical course. If an employee leaves Platt College, didactic, laboratory, or clinical course syllabi and materials may still be used by the College. Platt College does not prohibit the employee from using materials s/he created at other institutions.
Copyrightable instructional materials developed with nominal institutional support or involvement or substantial institutional support or involvement belong to Platt College.
When the production of copyrightable instructional materials is the primary purpose of employment with Platt College, as defined as an assigned duty or pursuant to a work-for-hire agreement in this policy, Platt College shall own all rights, including copyrights, in the materials produced. Platt College shall receive all rights, including copyrights, to the materials, together with any royalties and fees.
When copyrightable instructional materials are produced with extramural support, the agreement with the extramural sponsor shall be considered in determining the copyright and ownership rights of the parties.
types of works protected/not protected by copyright
Copyright protects "original works of authorship" that are fixed in a tangible form of expression. Today such works are often seen as forms of "intellectual property." The following commonly used categories of intellectual property used for educational purposes are covered by copyright law:
- literary works
- musical works; including any accompanying words
- dramatic works, including any accompanying music
- pantomimes and choreographic works
- pictorial, graphic, and sculptural works
- motion pictures and other audiovisual works
- sound recordings
- architectural works
If you can see, read, watch or hear it, the work is considered fixed and is most likely eligible for copyright protection.
However, not everything that might be considered an intellectual production is covered by copyright law. The following works are not protected by copyright:
- ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices
- collection of facts such as the white pages of the phone book
- works that have not been fixed in a tangible form of expression (for example, an improvisational speech that has not been written or recorded)
- titles, names, short phrases, and slogans
- familiar symbols or designs
- listings of ingredients such as recipes
- information that is common property such as calendars, height and weight charts, rulers
- federal government publication
notice and duration of copyright
Since 1989, works no longer need to carry notice of copyright (such as the letter c in a circle) in order to be protected. Copyright is secured automatically when a work is created. Works are created when they are fixed in a medium such as a book, manuscript, videotape, sheet music, or CD. Digital works created on the internet are copyrighted automatically as well.
Pre-1978 published works must carry the copyright notice and be registered in order to be protected. Pre-1978 unpublished works (e.g., a letter, a diary) are protected, even without copyright notice.
Under current law, copyright lasts the life of the author plus seventy years. Materials produced prior to 1978 documents are protected for a maximum of 95 years, if they have been formally copyrighted. When a copyright expires, the work is said to have entered the public domain.
penalities and exemptions
Anyone who violates any of the rights provided by the copyright law may be held civilly or criminally liable. These rights, however, are not unlimited in scope. The most important exemption from copyright liability for educators is the fair use exemption established by section 107, title 17, U.S. Code.
The fair use exemption outlines certain situations when the reproduction of a particular work is considered "fair," and the distance education exemption outlines situations in which instructors in educational institutions may transmit online non-dramatic written works and portions of dramatic works such as movies.
Fair use, outlined in section 107 , title 17, U.S. Code, allows copyrighted works to be reproduced for purposes of criticism, comment, news reporting, teaching, scholarship, and research. [http://www.copyright.gov/title17/92chap1.html#107]. Fair use applies to all formats (print, AV, digital, etc.) If a use of a copyrighted work is considered "fair," you do not need to pay royalties or obtain permission to use or reproduce the work. Section 107 is the "umbrella" exception that allows for use of copyrighted works in a variety of unpredictable situations and provides some flexibility in the application of copyright law. Because of this provision, students and faculty can copy articles, parts of books, material from the web, etc. for personal use and instructors can use copyrighted material in the classroom.
Section 107 sets out four factors that must be considered in determining whether or not a particular use is fair. Those factors are:
- the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
- the nature of the copyrighted work
- amount and substantiality of the portion used in relation to the copyrighted work as a whole
- the effect of the use upon the potential market for or value of the copyrighted work
All educational uses of copyrighted works are not necessarily fair. Each time a copyrighted work is used, a fair use analysis must be conducted using the four factors. Generally, if you are using a small amount of a published, factual work in an educational setting, and that use has no effect on the market for that work, your use is likely fair. It is the responsibility of all faculty, staff, and students to conduct a fair use analysis each time a copyrighted work is used, and to make a reasonable, good faith determination if the use is fair or not.
Although you must determine fair use on a case-by-case basis, some uses of copyrighted works clearly are not fair. Some examples of activities that would not pass a fair use analysis are:
- Copying large sections of a work (the "heart of the work") and distributing it to all students in a class or posting it online for students
- Combining a number of copyrighted works into a course pack and selling copies to students without obtaining permission or paying royalties
- Taping a movie or television show to show in class and retaining and using the copy indefinitely
- Duplicating an entire CD or video and keeping it or giving the copy to a friend
- Sharing copies of copyrighted music or software on the internet
- Obtaining a video on loan, duplicating it, and using it in class
general rules for complying with fair use
General Rules for Complying with Fair Use
- Remember that you are affiliated with an educational institution
- Never post copyrighted materials for general access on the web
- Use materials that have been lawfully acquired (material that you or your institution has purchased, received as a gift, or leased).
- Maintain copyright notice and authorship identification. Give credit to the copyright owner.
Because the distinction between fair use and infringement may be unclear, you may want to refer to the U.S. Copyright Office's Fair Use Fact Sheet and the Final Report to the Commissioner on the Conclusion of the Conference on Fair Use .
In addition the Checklist for Fair Use from the Copyright Management Center is also helpful in conducting a fair use analysis http://copyright.iupui.edu/checklist.htm.
recent modifications of copyright law
Digital Millenium Copyright Act
The Digital Millennium Copyright Act (DMCA) was enacted in 1998. It was an effort to update copyright law to take into account digitally produced and reproduced materials. The act affects universities in their role as Internet Service Providers and Information Technology Providers. It requires that Universities take reasonable efforts to insure that the copyright protections applying to digital material are in place on their campuses. Further information on the educational impact of DMCA is provided by EDUCAUSE.
The U.S. Copyright Office also provides a summary of the DMCA legislation .
The newest revision of copyright law affecting universities is The Technology, Education and Copyright Harmonization Act, (TEACH Act) which became law in November 2002. It is particularly important for those teaching in an online environment. While the TEACH Act specifically applies to non-profit institutions, Platt College follows the same guidelines.
The TEACH Act modifies existing copyright law to allow educators to use some copyright protected materials in distance education without gaining prior permission and/or paying royalties without violating copyright law. The general intention of the act was to make the same "fair use" criteria that apply to face-to-face educational contexts also apply to distance education.
The TEACH Act applies only to accredited educational institutions that have stated copyright policies which are made available to faculty, staff and students. In order to comply with the TEACH Act, copyrighted material made available via distance education must, among other things, meet the following criteria:
- Access must be limited to enrolled students
- Access must be limited to the time needed to complete the class session
- Reasonable efforts must be made to prevent students from copying and disseminating the material after they view it
- Analog material cannot be converted to a digital format, if it is readily available in a digital format
- The material must have been legally acquired initially
When one is delivering a course through Platt College, inside a closed environment such as CAMS® most of the requirements of the TEACH Act are covered. All faculty and staff engaged in distance education should become familiar with the provisions of this law.
More information can be found through the American Library Association at the following site: Distance Education and the TEACH Act and through the Copyright Management Center at Indiana University - Purdue University - Indianapolis Overview of Copyright and Distance Education.
Using Copyright Material
It is possible to use copyright material for educational purposes, but to do so, one must first obtain permission. If use of an item does not meet the four factor fair use test, then you must seek permission to use the work. Most universities have processes and procedures for how this is done on any particular campus. The library is a good starting point for seeking out that information. In addition, the Copyright Clearance Center (http://www.copyright.com/) can assist in obtaining permission.
Audio, Video and Copyright
Fair use applies to audio and video material. The same four criteria should be used to assess whether or not fair use applies. However, due to the formats, audio and visual materials have additional considerations that have to be taken into account.
Material can only be transferred from analog to digital under certain conditions:
- If original analog version is damaged
- If analog version will be destroyed after copy is made
- If analog version is on unsupported format (1/2" reel to reel videotape)
Using audio and video clips in class and online:
- A clip can be shown a second time for reinforcement
- If clips will be a regular part of the class or will be downloadable on-line, seek copyright permission
- Give credit where due
- Seek legal commercial copies first
- One copy, one use: if you need more than one copy or use clips often, seek permission