Copyright at the University of San Francisco

University of San Francisco Use of Copyrighted Works for Educational Research Purposes

Effective July 1, 2016. Please note that this is a working draft, subject to edits.
Responsible University University Officer: Provost and/or Legal Counsel
Policy Owner: Dean, University Library
Policy Contact: Gleeson Libraries

I. Policy Statement
II. Reason for Policy
III. Scope
IV. Audience
V. Policy Text
VI. Procedures
VII. Related Information
VIII. Definitions
IX. Frequently asked Questions
X. Revision history
XI. Compliance
XII. Policy Exception Process
XIII. Appendices

I. Policy Statement

1. The U.S. Copyright Act encourages authors to create original works while allowing the public to use those works without the authors’ permission under certain circumstances. There is always a balance between an author’s exclusive rights to control the use of their work and the public’s right to use those works under specific provisions of the Copyright Act.
2. Education and research are the foundations of the University and are achieved by the appropriate use of copyrighted materials. The Copyright Act has specific exceptions and limitations that must be adhered to by the University community in order to be in compliance. Legal risk to the University and individuals is reduced when copyrighted materials are used appropriately as provided under the U.S. Copyright Act.
3. Copyright applies to creative works including, but not limited to, books, journal articles, movies, images, computer software and music. All of these are used for teaching and research. The University community must understand how to legally incorporate copyrighted works into their educational activities and research.

II. Reason for Policy

1. The University makes every effort to fully comply with the requirements of the U.S. Copyright Act, Title 17 of the United States Code.
2. USF community members are responsible for understanding copyright and applying the exceptions and limitations in compliance with the U.S. Copyright Act.
3. This document is intended to serve as a general guide to copyright and its application as well as a roadmap to copyright guidance resources at the University.

III. Scope

1. This policy covers the use of copyrighted materials for education and research purposes and applies to all USF community members.

IV. Audience

1. This policy applies to all USF community members: faculty, students, staff, part-time staff, term staff (under contract employment), affiliates, visitors, etc.

V. Policy Text

1. Copyright protects original works of authorship that are fixed in a tangible medium of expression. Both published and unpublished works have protection under the Copyright Act. Copyrighted works receive protection under laws of the United States as well as international treaties and conventions.
2. USF faculty and staff are responsible for ensuring that their use of copyrighted materials is in compliance with the U.S. Copyright Act. The Fair Use and Education exceptions and limitations should be applied when appropriate.
3. The Library’s Copyright Liaisons in collaboration with University Counsel will provide guidance on the application of the copyright exceptions and limitations to educational activities and research.
4. All members of the USF community must make a good faith determination as to whether or not their use of copyrighted materials comply with the Copyright Act.
5. The University does not assume legal responsibility for actions by University faculty and staff that are not in compliance with this policy.
6. Students are expected to act legally and ethically and are bound by the Student Honor Code. The University does not assume legal responsibility for violation of applicable copyright laws by students who are not employees of the University. Students who are employees of the University and who are acting within the scope of their employment are subject to all provisions of this policy.

VI. Procedures

1. USF Community must determine if the work to be used is protected by copyright.
2. Works that are not protected are in the public domain and can be freely used.
3. For protected works an analysis must be completed to determine if an exception or limitation such as fair use can be applied. If there are no available exceptions, then permission must be obtained before the work can be used.
4. Consult with the Library’s Copyright Liaisons if assistance is needed with the copyright use analysis.

VII. Related Information

1. Canvas policy
2. Copyright Policy (DMCA policy) (They might want to consider changing the title of this policy so as not to confuse people.)
3. Article 23 – Intellectual Property (Ownership policy)
4. Student Honor Code E. Library Copyright website F. United States Copyright Office

VIII. Definitions

1. Copyright Act — Copyright law of the United States, referred to as the Copyright Act of 1976, and its amendments codified under USC Title 17.

IX. Frequently Asked Questions

1. What are the differences between this policy, the Copyright Policy, the Canvas Policy and the Ownership Policy?
   1. This policy covers the use of copyrighted materials for education and research. It provides basic copyright information to assist the USF community in an initial determination as to whether or not their use is eligible under the exceptions and limitations to the U.S. Copyright Act. It also establishes the rights and responsibilities of the USF community when using copyrighted material.
   2. The Copyright Policy addresses the illegal downloading and distribution of copyrighted material using University resources. The Digital Millennium Copyright Act, which is a part of the U.S. Copyright Act, specifies the responsibilities of the University and the actions the University must take to be in compliance with the federal law when they are notified of illegal downloading and sharing of copyrighted material on their network.
   3. The Canvas Policy provides specific information on the use of the Canvas learning management software, which is licensed by the University. It specifically addresses posting copyrighted materials to the site as well as linking to external sites. This policy also provides information on the intellectual property rights of faculty, staff and students in relation to Canvas courses.
   4. Article 23 of the Collective Bargaining Agreement between the University of San Francisco and the USF Faculty Association describes the ownership rights of the USF community members who create intellectual property while at the University. This includes not only copyrightable works but patents as well.

X. Revision History

1. July 1, 2016 — Initial publication

XI. Compliance

1. Failure to follow this policy can result in disciplinary action in accordance with Human Resources Employment Handbook, Office of General Counsel employee and labor relations and USF Student Honor Code. Disciplinary action for not following this policy may include termination as provided in the applicable handbook or employment guide and sanctions by the Academic Integrity Committee.

XII. Policy Exception Process

1. None

XIII. Appendices

Appendix 1 — Basic Copyright Information

Copyright is complex and has many nuances. The application of copyright is fact specific and must be addressed per use of each individual work. The following information is very basic and provides a general introduction to the major areas of the Copyright Act as they relate to educational activities and research. It is not comprehensive and the USF community should seek guidance from the appropriate resources to fully understand the application of the law and available options.

1. Copyrighted materials — The U.S. Copyright Act protects the following creative works:
   1. Literary, musical and dramatic works
   2. Pantomimes and choreographic works
   3. Pictorial, graphic and sculptural works
   4. Sound recordings
   5. Motion pictures and other AV works
   6. Computer programs
   7. Compilations of works and derivative works
   8. Architectural works
2. Automatic copyright protection — copyrightable works are protected under U.S. law from the moment of creation. There are two requirements to obtain a U.S. copyright:
   1. The work must have a modicum of originality
   2. The work must be fixed in a tangible medium of expression
3. Duration — Copyright protection exists for the life of the author plus 70 years after the author’s death. For corporate works the copyright exists for 95 years from publication or 120 years from creation whichever is shorter. Calculating the life of a copyrighted work can be challenging given the changes to the Copyright Act over the years. For a good overview, consult this copyright terms chart.
4. Public Domain — When a work is in the public domain, it is no longer protected by copyright. Public domain works can be freely used. There are two categories of works that are in the public domain:
   1. Works in which the copyright has expired. For example works that were published in the U.S. prior to 1923 are in the public domain.
   2. Works that are produced by the U.S. government.
5. Exceptions and limitations — There are two major exceptions and limitations under the Copyright Act that are necessary to understand and apply in an educational setting. They are fair use and the education exceptions. One or both can be utilized to legally use copyrighted materials without obtaining permission from the copyright holder.
   1. Fair Use (§107) — This is a four factor test that can be applied to each use of a work. The more factors that are in favor of fair use, the stronger the fair use argument is. All factors must be considered in a fair use analysis.
      1. Purpose and character — What is the purpose of the use? If it is for educational purposes then this weighs in favor of fair use. If it is for commercial purposes, then it weighs against fair use. Also taken into consideration under this factor is whether or not the new work is transformative.
      2. Nature of the work — Is the work more factual in nature or more creative? Facts are not protected under the Copyright Act so using a factual work would weigh in favor of fair use. The more creative a work is then there is a stronger argument for protection.
      3. Amount of the work used — The smaller the amount used, the stronger a fair use argument.
      4. Market effect — Will the market for the original work be negatively impacted by the new work? Will the new work be a substitute for the original work? If there is little to no impact, then this factor will weigh in favor of fair use.
   2. Education exceptions (§110) – There are two education exceptions. One for use of works in a face-to-face classroom setting and one for online courses or courses that have an online component such as Canvas.
      1. Face to Face teaching (§110(1)) — All types of materials can be used in a traditional classroom setting.
      2. Online education (§110(2)) — There are some limitations on the types and amount of materials that can be digitally transmitted. Only reasonable and limited portions of dramatic works such as operas and audiovisual works such as movies are allowed to be used. For all works, only the amount that is needed should be transmitted.
6. Linking — It is preferable to link to materials when appropriate instead of reproducing and distributing the copyrighted material.
7. Permissions — Permission from the copyright holder to use the work must be received if no exceptions apply.