These guidelines are intended to assist the
faculty, administration, staff, and students of Stark state college in
understanding and complying with the Copyright Act of 1976 (Title 17, United
States Code) and the Digital Millennium Copyright Act of 1998. While some areas
of the copyright law are clear, there are some portions which remain open to
legal and judicial interpretation. For this reason, these guidelines will be
periodically updated.
(A) Definition of copyright. Copyright is
the 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, sound recordings, architectural works, motion pictures, and other
audiovisual creations. Duration of copyright varies depending on many variables
including authorship, ownership, and type of work. "Copyright"
literally means the right to copy, but has come to mean that body of exclusive
rights granted by law to copyright owners for protection of their work which
includes:
(1) The right to
reproduce the copyrighted work.
(2) The right to prepare
derivative works.
(3) The right to
distribute copies of the copyrighted work to the public by sale or other
transfer of ownership, or by rental, lease, or lending.
(4) The right to perform
or display the copyrighted work publicly.
(B) Legal framework for copyright.
Article I, Section 8, Constitution of the United States provides the basis for
the concept of copyright. It states as follows: "The Congress shall have
the power---To promote the Progress of Science and useful Arts, by securing for
limited Times to Authors and Inventors the exclusive Right to their respective
Writings and Discoveries." The Copyright Act is found in Title 17 of the
United States Code.
(C) Subject matter of copyright.
Copyright protection exists for original works of authorship from the moment
they are fixed in any tangible medium of expression, not known or later
developed, from which the works can be perceived, reproduced, or otherwise
communicated, either directly or with the aid of a machine or device. Copyright
does not have to be visibly evident for an item to be protected under the
Copyright Act. Copyright protection does not extend to any idea, procedure,
process, system, method of operation, concept, principle, or discovery,
regardless of the form in which it is described, explained, illustrated, or
embodied in such work.
(D) Duration of copyright.
(1) For works created on
or after January 1, 1978, copyright begins when the work is first fixed in a
tangible medium of expression i.e., when it is first written down or recorded
and extends through the life of the author plus seventy years. For a
"joint work prepared by two or more authors who did not work for
hire," the term lasts for seventy years after the last surviving
author's death. For works made for hire and anonymous and pseudonymous
works, the duration of copyright is 95 years from first publication or 120
years from creation, whichever is shorter.
(2) For works created
prior to January 1, 1978, there are two safe ways to interpret
copyrights:
(a) Treat any pre-1978 copyright the same way as works published
on or after January 1, 1978: Life plus 70, 95, or 120 years, depending on the
nature of authorship. However, the law specifies that in no case would
copyright in a work in this category have expired before December 31, 2002. In
addition, if a work in this category was published before that date, the term
extends another 45 years, through the end of 2047, or
(b) Contact the publisher, if still in existence, or the U.S.
copyright office to identify the copyright owner so that continued vitality to
the copyright can be determined.
(E) Compliance with copyright law. No
employee or agent of Stark state college shall knowingly infringe upon the
copyrights of another.
(F) Permission. Employees shall seek and
obtain the permission of the copyright owner prior to making use of copyrighted
materials unless one of the following exemptions pertains:
(1) The work was never
copyrighted. (This is often difficult to ascertain since recent amendments no
longer make it mandatory to place the copyright notice on copyrighted
works.)
(2) The copyright has
expired. These works are part of the public domain and may be freely
copied.
(3) The work lies in the
public domain. Examples of works in the public domain are works which were
never copyrighted, works where the copyright has expired, and works originally
published by the U.S. government.
(4) The copying and/or
distribution fall within "fair use."
(5) The copying and /or
distribution fall under certain library or archive copying.
(G) Fair use. The only substantial
exception to the rule that only copyright holders may distribute copyrighted
material is the judicial doctrine of "fair use." Use of a copyrighted
work "for purposes such as criticism, comment, news reporting, teaching
(including multiple copies for classroom use), scholarship, or research"
(17 USC 107) is generally considered fair use. Fair use does not extend to
extensive quotations and may not adversely affect the commercial market for the
work in question. In determining whether a work in a particular case
constitutes fair use, the factors to be considered shall include the
following:
(1) The purpose and
character of the use, including whether such use is of a commercial nature or
is for nonprofit educational purposes.
(2) The nature of the
copyrighted work.
(3) The amount and
substantiality of the portion used in relation to the copyrighted work as a
whole.
(4) The effect of the use
upon the potential market for or value of the copyrighted work.
(H) Obtaining permission or licenses. If
use does not fall under "fair use," permission must be obtained.
Repeated use or republication is not considered "fair use."
Permission must be obtained or royalties must be paid for such use of
copyrighted works. While the budget funds may be limited, the college does not
condone any violation of law simply because that violation saves the
taxpayers' money. Accordingly, a good faith effort must be made to obtain
permission to use copyrighted material that falls outside of the doctrine of
"fair use."
(I) Requests for permission. There are
two ways to obtain permission to use copyrighted material. You may either
contact the copyright holder directly, or you may use a rights clearinghouse.
The permission process is not instantaneous. Allow one-three months for
requests to be processed. Whether you are contacting a rights holder directly
or using a clearinghouse, you will need to have the following
information:
(1) Include an exact
description/citation of the work to be used or copied: Title, author and/or
editor, and edition of material to be duplicated including page numbers,
chapters, and if possible a photocopy of the material to be
duplicated.
(2) Include an exact
description of what rights you are requesting, how you plan to use the work,
the form of distribution (classroom, online class, newsletter, etc.), whether
or not the material will be sold, and reproduction medium (photocopy, digital
file, etc.).
(3) You must request and
pay for, if applicable, each type of right you request. For example, if you are
granted the right to use an image in a PowerPoint presentation, it
doesn't mean you have the right to use that image in a paper you are
writing unless you have also been granted that right.
(4) Whenever possible,
requests for permission should be in writing.
(5) All requests shall
identify the user as Stark state college.
(6) Permission to use
copyrighted material must be in writing.
(7) Questions about
copyright at Stark state college should be directed to the director of library
services.
(J) Digital media and the Digital
Millennium Copyright Act
(1) Copyright law applies
to digital resources as well as to conventional paper works. Any distribution
of copyrighted digital files--music, movies, text or software--is a violation
of federal law. (See the policy on use of college computing resources, rule
3357:15-15-05 of the Administrative Code.) Placing media files in a location
where they are available to other Internet users counts as distribution, as
does providing copies to friends. It is also illegal to attempt to subvert
copyright protection mechanisms (17 USC 1201). Willful infringement for
commercial advantage or private gain constitutes a criminal
offense.
(2) Stark state college
encourages the use of legal online resources. A comprehensive list of legal
sources for online content and downloading may be found through the
"EDUCAUSE" website at:
http://www.educause.edu/legalcontent.
(3) The Digital
Millennium Copyright Act (DMCA), enacted in 1998, provides protection for
copyrighted material in digital form. The DMCA requires that online service
providers--including colleges and universities--follow a particular set of
procedures in resolving copyright violation claims. Stark state college has
implemented these DMCA-mandated procedures. (For more information, see report a
copyright infringement below.) The college is also taking active measures to
educate users about the provisions of copyright law and encourage compliance
with it.
(K) The Technology, Education and
Copyright Harmonization Act (TEACH) was signed into law in October 2002. The
TEACH Act amends Sections 110(2) and 112 of the Copyright Act of 1976 to give
instructors at accredited nonprofit educational institutions greater
flexibility to use third party copyrighted works in online course delivery. The
bill permits the display and performance of virtually all types of works during
online instruction without the consent of the copyright owner, provided
that:
(1) The online
instructions at an eligible institution are mediated by an
instructor;
(2) The transmission of
the material is intended only for receipt by students enrolled in the course,
regardless of where the students are physically located;
(3) The institution
employs measures to prevent "retention of the work in accessible form by
recipients of the transmission for longer than the class
session;"
(4) The institution
employs measures that limit the transmission of the material to students
enrolled in the particular course and precludes unauthorized student retention
and/or downstream redistribution "to the extent technologically
feasible;" and
(5) use of the material
is clearly for educational, not entertainment purposes.
(L) Penalties for copyright
infringement
If it comes to the attention of the college that
an individual is using Stark state college computer equipment and/or network
access to violate copyright law, Stark state college will take action to stop
such activities, including removing network access.
In addition, violations of copyright law can lead
to criminal charges and civil penalties.
Report a copyright infringement
(1) To report copyright
infringements on servers located at Stark state college, please
notify:
Director of library services Stark state
college 6200 Frank ave. NW North Canton, OH 44720 Phone: (330) 494-6170
(2) Director of library
services is the agent designated under the Digital Millennium Copyright Act,
P.L. 105-304.
(3) Director of library
services will comply with the "Notice and Take Down" provisions of
the DMCA by removing the material in question and informing the individual user
of the complaint. Users must file a counter-notice if they wish to make the
material available again.
(M) Copyright and faculty ownership of
intellectual property, compensation, royalties, and patents.
Copyright and faculty ownership of intellectual
property is determined based on use of college resources as defined in this
paragraph. Compensation for course/program development is based on category and
level as identified in this paragraph.
(1) Category A: Employees
shall have sole rights of ownership and disposition of copyrightable material
and patents generated by their own individual initiative, provided there is no
use of college personnel, facilities, or resources ("category A
materials"). However, employees hereby grant the college a fully paid up,
nonexclusive license to reproduce, distribute, display, or otherwise use
category A materials for educational purposes only. The employee has sole
rights to license category A materials and shall retain all royalties or
profits therefrom.
(2) Category B: Employees
and the college shall share the ownership and disposition of copyrightable
material and patentable discoveries or inventions generated where there is
approved use of college personnel or facilities ("category B
materials"). College personnel or facilities include, but are not limited
to, released time, administrative assistance, financial assistance (such as
student workers), or college services, equipment, or building. Both parties
must agree to any commercial licensing arrangement unless otherwise stated in
the course/program development agreement. Division of royalties under these
circumstances shall be seventy per cent to the employee and thirty per cent to
the college unless other written agreements are made prior to the initiation of
the work.
(3) Category C:
Copyrights and patents developed from projects undertaken by an employee
pursuant to an agreement with the college whereby the college commits
substantial resources such as the use of other personnel, facilities,
compensation, and release time ("category C materials"). Employee
hereby assigns to college all rights and title, including all copyright rights,
in any and all category C materials. The college has sole rights to license
category C materials and shall retain all royalties and profits therefrom.
(4) Grants: Rights to
copyrightable material and patents developed as a result of work supported
partially or totally by an outside agency or sponsor through a contract or
grant shall be disposed of in accordance with the terms of the contract or
grant. Prior to the employee accepting sponsored research or developmental
assignments, the college will be consulted and must approve the contract or
grant and the details of the project, division of any resulting copyrights or
patents, compensation, and the division of royalties.
(5) Employment of the
author: In the case where the author is no longer employed at the college, the
college retains the right to use the category B and category C course material
and also grants the author the right for the author to use the work at another
educational institution at which the author is employed so long as that
institution is outside the extended service district of the college. The
extended service district of the college is defined as Stark county, Summit
county, and the adjacent surrounding counties. In the case where the author is
no longer employed at the college, the commercial license for the material is
defined by the category in the course/program development
agreement.
(6) Compensation of the
author: In consideration for the following, the author will develop the
category B or category C course with any remuneration to be paid upon
successful completion of the deliverable of the project.
(7) Transfer of Ownership
of Copyright (See Title 17 United States Code, Section 204)
(a) Copyright must be deliberately transferred.
(b) Any transfer of ownership must be both in writing and
signed.
(i) A unilaterally
imposed institutional policy cannot legally take away the author's
copyright ownership of work.
(ii) However, if the
author has signed an employment contract yielding copyright to the work, or
signed a faculty handbook indicating acceptance of the policies within, such a
signed document could be interpreted as a contract and might constitute a valid
transfer of rights.
