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Instructional Technology Support Office (ITSO)

Copyright

Hawaiʻi Community College respects the intellectual property rights of others. It is the responsibility of all members of the College community to make a good faith determination that their use of copyrighted materials complies with the United States Copyright Law. However, copyright is not a set of bright line rules. In fact, copyright issues, guidelines, and interpretations are moving targets; in a constant state of change as case law, litigation, and copyright infringement challenges increase in frequency.

Many instructors who upload content to a learning management system (i.e., Laulima) often believe that because the content is password-protected, copyright permission is not required. This is not true. Unlike publisher-created content from a vendor (who has already obtained the necessary permission), content that is uploaded by faculty members and others typically requires copyright permission.

This brief video from the Copyright Clearance Center provides a good overview of copyright law as it relates to colleges and universities.

Higher Education Opportunities Act Technology Compliance

Proper use of copyrighted materials extends to electronic resources available on the internet. The Higher Education Opportunity Act (HEOA), also referred to as H.R. 4137, was signed into law on August 14, 2008. It includes provisions that are designed to reduce the illegal uploading and downloading of copyrighted works through peer-to-peer (P2P) file sharing.

Anyone using Hawaiʻi Community College computing and network resources consents to the University of Hawaiiʻi System policies on the Use and Management of Information Technology Resources. These policies outline the responsible use of all college computing and network resources, and states that users are expected to abide by the guidelines set forth. Persons who violate the Responsible Use Policy, as well as other policies regarding the use of copyrighted materials, may be subject to revocation or limitation of their computer and network privileges, in addition to other disciplinary actions.



Copyright Compliance

Let's assume that the work you wish to use is copyrighted (not in the public domain, and not a government produced work). You have basically four legal options:

ITSO staff are available for one-on-one meetings with faculty. Topics can include, but are not limited to:

  1. Link to the work
  2. TEACH Act [Section 110];
  3. Fair Use (Section 107); or
  4. Seek permission from the copyright holder

Pointer:
The use of student-created materials by an institution or its faculty also requires permission from the copyright holder—the student.

Important copyright compliance information:

  • UH Copyright Guidelines
  • Summary of Civil and Criminal Penalties for Violation of Federal Copyright Laws

Option 1: Link when possible

Placing a URL (web address) link on your page does not violate the copyright of the page being linked to, and is often the simplest solution. This is not to say that there have not been lawsuits over linking, but suits usually arise from linking to a page that displays content that infringes copyright, or deep linking (bypassing the website’s home page or skipping ads). However, the average link should not be problematic and does not require permission.

Pointer:

YouTube videos may be embedded as long as the video itself does not violate copyright, and the embed feature has been activated by the video uploader. According to the YouTube Terms of Service (TOS):

…You also hereby grant each user of the Service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and under these Terms of Service. ~~ [youTube TOS part 6C]

Option 2: TEACH Act

Signed in 2002, the Technology, Education, and Copyright Harmonization (TEACH) Act offers improvements over previous copyright regulations, specifically by amending sections 110(2) and 112(f) of the U.S. Copyright Act. The TEACH Act seeks to balance the perspectives of both copyright owners and content users. The TEACH Act facilitates and enables the performance and display of copyrighted materials in face to face and distance education classes by accredited, non-profit educational institutions (and some government entities) that meet the Act's qualifying requirements.

The "specific" exceptions for teaching purposes are the performance and display exceptions found in Section 110 of the copyright act. Section 110(1) speaks to face-to-face classroom performances and displays while Section 110(2) addresses transmissions of performances and display, such as occur in online classes or distance education.

Face to Face Classroom Teaching - Section 110(1)

Section 110(1) of the copyright act allows educators and students to perform or display works in the course of face-to-face teaching activities (not just for entertainment) at a nonprofit educational institution, in a classroom or similar place devoted to instruction. There is no limitation on the types or amounts of a work that can be performed or displayed except that an audiovisual work that is not lawfully made cannot be shown. This section authorizes, for example, displaying a picture, drawing, or photograph; showing an entire movie; acting out or performing a play or opera; and performing musical compositions as well as sound recordings.

Distance Education Teaching – Section 110 (2)

Section 110(2) was amended by the TEACH Act in 2002 to account for digital distance education. It would seem logical that you should be able to transmit the same performances and displays that you were lawfully able to use in your face to face classroom. However, you cannot, unless you satisfy a list of requirements set forth by the TEACH Act. Even then, entire movies cannot be shown in online classes.

In exchange for unprecedented access to copyright-protected material for distance education, the TEACH Act requires that the institution meet specific requirements for copyright compliance and education. For the full list of requirements, refer to the TEACH Act.

In order for the use of copyrighted materials in distance education to qualify for the TEACH exemptions, the following criteria must be met:

  • The institution must be an accredited, non-profit educational institution.
  • The use must be part of mediated instructional activities.
  • The use must be limited to a specific number of students enrolled in a specific class.
  • The use must either be for 'live' or asynchronous class sessions.
  • The use must not include the transmission of textbook materials, materials "typically purchased or acquired by students," or works developed specifically for online uses.
  • Only "reasonable and limited portions," such as might be performed or displayed during a typical live classroom session, may be used.
  • The institution must have developed and publicized its copyright policies.
  • Students must be informed that course content may be covered by copyright, and include a notice of copyright on the online materials.
  • The institution must implement some technological measures to ensure compliance with these policies, beyond merely assigning a password. Ensuring compliance through technological means may include user and location authentication through Internet Protocol (IP) checking, content timeouts, print-disabling, cut & paste disabling, etc.

What TEACH Does Not Allow

The new exemptions under TEACH specifically do not extend to:

  • Electronic reserves, coursepacks (electronic or paper) or interlibrary loan (ILL).
  • Commercial document delivery.
  • Textbooks or other digital content provided under license from the author, publisher, aggregator or other entity.
  • Conversion of materials from analog to digital formats, except when the converted material is used solely for authorized transmissions and when a digital version of a work is unavailable or protected by technological measures.
Pointer:

An important requirement of the TEACH Act is to inform your students that materials used in connection with the course may be subject to copyright protection. If you use these materials, be sure to add a statement to this effect in your syllabus and/or in your Laulima course.

Sample statement:
"Some materials on this course site are subject to copyright and are presented in compliance with U.S. Copyright Law. Under the law, materials may not be distributed beyond members enrolled in this course. These materials are to be used for coursework only, and are limited to the duration of this course."

Option 3: Fair Use

Fair use is a concept embedded in U.S. law that recognizes that certain uses of copyright-protected works do not require permission from the copyright holder. These include instances of minimal use that do not interfere with the copyright holder's exclusive rights to reproduce and reuse the work.

Pointer:

Fair use is not an exception to copyright compliance; it is more of a legal defense. If you use a copyright-protected work and the copyright holder claims copyright infringement, you could use "Fair Use" as a defense, but you would be obligated to prove it.

Fair use lists four factors to be weighed when analyzing the proposed use in order to determine whether it is a fair one. Consideration of all factors is required although all factors do not have to be in favor of a use to make it a fair one.

  1. The purpose and character of the use, including whether it is for commercial use or for nonprofit educational purposes.

    This factor generally weighs in favor of fair use for nonprofit educational uses, and most uses at the university can probably be characterized as nonprofit educational uses.

    Additionally, courts favor productive uses that yield a "transformational" result. Therefore, extensive quoting from a work to produce a critical analysis is favored over "verbatim copying" that merely reproduces a copyrighted work.
  2. Note: Educational use alone is not enough to constitute Fair Use. The other three factors must also be considered.
  3. The nature of the copyrighted work.

    This factor focuses on the work itself. There is a definite difference between reproducing a short news note and reproducing a full musical score because of the nature of the work. This factor generally weighs in favor of fair use if the work to be used is factual in nature (academic, scientific/technical) rather than works involving more creative expression such as fictional works, music, artwork, etc. The case for fair use becomes even stronger when there are only a few ways to express the ideas or facts contained in a factual work. If there is only one way or very few ways to express a fact or an idea, the expression is said to have merged into the fact/idea, and there is no copyright protection for the expression. However, some works, such as standardized tests and workbooks, will not qualify for fair use because by their nature they are meant to be consumed.
  4. The amount and substantiality of the portion used in relation to the copyright-protected work as a whole.

    This factor considers how much of the copyrighted work was used in comparison to the original work as a whole. This is a sliding scale -- the more you use, the less likely it will be a fair use.

    The copyright statute itself does not give numbers or percentages. This deliberate flexibility in the statute allows each situation to be judged on its specific facts and increases the functionality of fair use particularly in the higher education setting. Included here is a consideration of the quality of the portion used as well as the quantity. Sometimes, even if only a small amount is taken, this factor weighs against fair use if the portion can be justly characterized as 'the heart of the matter.' It is not difficult to see how this factor and the fourth factor, market effect, work in tandem. The more taken in amount and substantiality, the greater the negative impact on the market for the copyrighted work.
  5. The effect of the use on the potential market for or value of the copyright-protected work.

    Courts use this factor to determine whether the use of a work is likely to result in an economic loss that the copyright holder is otherwise entitled to receive. If the proposed use became widespread and would negatively impact the market for or value of the copyrighted work, the fourth factor likely weighs against a finding of fair use.

    Note: Although effect on the market is often cited as the most important of the four, the factors must be evaluated together.

Option 4: Seek Permission

If the work is copyright-protected; is not in the public domain; and does not meet the criteria for fair use, TEACH Act, or another specific exception in the copyright law; you must obtain permission from the copyright holder or its agent in order to reproduce or use the work.

Do I really need to get permission? (a flowchart to help you make that decision)

Obtaining Permission Directly from the Copyright Holder

Plan ahead when requesting permission from the copyright holder. It may take a month (or longer) to identify and locate the copyright holder and to receive a reply to your request.

At the minimum, your permission request should include the following:

  • Your name, address, telephone number and e-mail address
  • Your title, position and institution's name
  • The date of your request
  • The title of the work to be copied with a description and citation of that work
  • A description of how the work is to be used, by whom and for how long
  • A signature line for the copyright holder to sign, signifying their permission Permission Letters

Permission Letters

The following is a sample letter requesting permission to use copyrighted works. The sample letter should be reviewed and modified to fit the specifics of your request. Your letter should provide complete and accurate information. Include two copies of the letter, as well as a self-addressed stamped envelope to expedite the permission process.

Collective Licensing Agencies

You can also try obtaining permission through a collective licensing agency. Collective Licensing Agencies work by centralizing copyright ownership information for their respective industries. These centers can expedite your search substantially either by putting you directly in touch with a copyright owner or by negotiating the copyright usage itself. Many of these agencies can instantly grant permission online, which would eliminate the need to identify, locate, and contact the creator entirely. For that reason, contacting the appropriate collective licensing centers may be the best way to start your search. However, most of these agencies do charge a fee for their services.

  • Copyright Clearance Center – is a good starting point if you are looking to get permission for a paper or digital text-based work. The CCC can grant permission for thousands of works, many instantly online.
Pointer:

A lack of response from the copyright holder does not, under U.S. law, convey permission. Also, simply acknowledging the source of content is not a substitute for copyright permission.

 

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Contact Information
Instructional Technology Support Office
Office of the Vice Chancellor for Academic Affairs

Leanne Urasaki
Upper Campus, 346-109
(808) 934-2647

Helen Torigoe
Upper Campus, 346-108
(808) 934-2645

Kate Sims
West Hawaiʻi, Admin. Building
(808) 969-8856

Hawaiʻi Community College
200 W. Kawili St.
Hilo, HI 96720

Email: hawitso@hawaii.edu