Academic Policy  1220.10 

Use of Copyrighted Materials for Educational and Research Purposes

The University of Arkansas is an institution that values integrity in intellectual discourse.  As such, the University of Arkansas is committed to adhering to applicable laws regarding intellectual property and copyright including Title 17 U.S. Code, United States Copyright Act, the Digital Millennium Copyright Act of 1998, and the Technology, Education, and Copyright Harmonization (TEACH) Act 2002.

This document works in tandem with Board Policy 210.1 (Patent and Copyright Policy),which addresses the ownership of authored works by members of the University of Arkansas community and Board Policy 210.2 (Copyright and Distance Learning), which addresses the creation and use of “Technology Enhanced Course Materials.”

Purpose

The purpose of the University of Arkansas Use of Copyrighted Materials for Educational and Research Purposes is to provide a summary of U.S. copyright law as it relates to the activities of faculty, staff and other employees at the University of Arkansas.  It also provides some guidelines on the practices of using copyright materials.  When permission to use copyrighted materials is required, that permission must be obtained prior to the use of copyrighted materials.

This policy is not a substitute for legal advice, and proper legal advice should be obtained when necessary.

Copyright Law

Copyright law provides creators and distributors of creative works with an incentive to share their works by granting them the right to be compensated when others use those works in certain ways. Specific rights are granted to the creators of creative works in the U.S. Copyright Act (title 17, U.S. Code). Generally, if you are not a copyright holder for a particular work, as determined by the law, you must obtain copyright permission prior to reproducing that work. There are specific exceptions in the Copyright Act for certain academic uses. Permission is never required for certain other actions such as reading or borrowing original literary works or media materials from a library collection.

The rights granted by the Copyright Act are intended to benefit "authors" of "original works of authorship", including literary, dramatic, musical, architectural, cartographic, choreographic, pantomimic, pictorial, graphic, sculptural and audiovisual creations. Most creative work including books, magazines, journals, newsletters, maps, charts, photographs, graphic materials, and other printed materials; unpublished materials, such as analysts' and consultants' reports; and non-print materials, including electronic content, computer programs and other software, sound recordings, motion pictures, video files, sculptures, and other artistic works—are protected by copyright. Copyright law does not protect ideas, data or facts. Since March 1, 1989, a work does not have to be published with a copyright notice (©) or, since January 1, 1978, registered with the Copyright Office to receive the benefits of copyright protection. The moment that a work is affixed in some tangible way it is protected by copyright law.

Copyright law provides copyright holders with control over the use of their creations and an ability to benefit, monetarily and otherwise, from the use of their works.  Exclusive rights granted to the "authors" to do or to authorize third parties to:

• Reproduce the copyrighted work in copies or phonorecords;
• Prepare derivative works based upon the copyrighted work;
• Distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
• In the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, perform the copyrighted work publicly; and
• In the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, display the copyrighted work publicly.

Copyrights are not always owned by the author or creator of the work.  Authors often agree to assign their copyright to the publisher of the work.  In such instances, even the author will have to request permissions to reproduce, distribute, perform, or create derivative works if they did not retain those rights from the publisher.

Purchasing a copy of a book or a video does not bestow upon the owner of the physical copy of the work any rights normally assigned to authors.

A work created in another country may also have copyright protection.  As a member of Berne Convention, the United States applies copyright law automatically to the use of international works.

Copyright protection does not cover all intellectual property such as trademarks and patents (which are covered by other legislation).  In addition, licenses for access to software, databases, video materials and the like may contain contractual language which limits or prohibits copying, reformatting or reuse.  Some works such as most government documents, materials that have fallen out of copyright or are in public domain, or those that have been given specific creative commons licensing may be used freely.  Free access to a work, such as that obtained via a web site, does not automatically indicate that the work is in the public domain.

Author / Creator Rights

For information on the ownership rights of University of Arkansas faculty, students and staff with regard to the creation of materials developed from research or teaching, please see Board Policy 210.1(Patent and Copyright Policy) and Board Policy 210.2 (Copyright and Distance Learning).

As authors and creators of intellectual property, members of the University of Arkansas community have rights and choices in how to manage the distribution of their work.  Students, faculty and staff are encouraged to become aware of the many options that are available with regard to limiting, retaining and transferring the copyrights to their works.  Retaining or transferring only limited copyrights to publishers can make it easier for an author to distribute work more freely – to colleagues, in the classroom, or in the University of Arkansas institutional repository.  Publishing contracts often include language that provides exclusive distribution rights to a publisher.  It is now not uncommon for authors to attach addenda to these agreements in order to retain their rights.  An addendum generator has been developed to help you choose the type of addendum you wish to use.  It is available at http://scholars.sciencecommons.org/ .

For online materials, authors may also consider Creative Commons licensing (see https://creativecommons.org/licenses/ ) which allows the creator to assign levels of rights protection to materials published electronically.

FAIR USE

The Fair Use Exemption found at Section 107 of the Copyright Law allows for limited reproduction of someone else's copyright-protected work for purposes of criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship and research without permission of the copyright holder. However, nonprofit educational use does not automatically fall under fair use.  If the reproduction is for one of the above purposes, a determination as to whether the reproduction is fair use must be made based upon four factors:

• The purpose and character of use (principally, whether for commercial or nonprofit educational use);
• The nature of the copyright-protected work;
• The amount and substantiality of the portion used; and
• The effect of the use being evaluated upon the potential market for or value of the copyright-protected work.

Fair use requires a thoughtful analysis and the law does not state exactly what uses of a copyrighted work will be considered fair uses under the law and may therefore be used without obtaining permission. As such, individuals who are not lawyers may often need to be interpreters of the law in everyday circumstances, and answers as to how much reproduction may be considered fair use often remain unclear. The bottom line is that fair use requires a very fact-specific analysis as to whether a particular use or reuse of a work may indeed be considered fair use.

The Fair use exemption allows flexibility to work within the changing environment.  Court rulings will continue to shape the discussion and application of fair use.

Distance Education and the Online Classroom

In 2002, the Technology, Education and Copyright Harmonization (TEACH) Act became law and expanded the latitude universities have for the performance and display of copyright-protected materials in a distance education environment, including through the use of Learning Management Systems such as Blackboard.

The copyright requirements for TEACH and online classrooms still have at their heart the basic tenets of copyright protection and fair use. 

Copyright Obligations of University of Arkansas Faculty, Staff and Students

University faculty and staff wishing to use copyrighted materials are responsible for ensuring compliance with copyright law.  This includes making a good faith determination as to whether use of a work falls under the rubrics of the fair use exemption.  The University of Arkansas does not assume legal responsibility for any independent applications of copyright principles made by its faculty, staff or students that are not made in good faith.  All good faith determinations which identify that the use exceeds fair use or for which there are other limitations applied by the copyright owners must result in obtaining permissions to use the individual works.

Students are expected to individually, within the context of the Code of Student Life and other applicable University regulations, act responsibly and ethically by applying fair use principles to the completion of their activities and projects. The University does not assume legal responsibility for violations of applicable copyright law by students who are not employees of the University. Students who are employees of the University, with the exception of those holding work-study or Graduate Assistant positions, and who are acting in their capacity as employees are subject to all provisions of this document relating to faculty and staff. Copyright infringement is a violation of federal law with legal ramifications of infringement which can include fines that range from $200 to $150,000 per infringement and/or prison.

For help in making a good faith determination of the applicability of the fair use determination you may contact the University of Arkansas Libraries, a Global Campus instructional designer, or the University Bookstore.

Remember that using library course reserves or creating legal course packs through the bookstore can be the best way to minimize the risk of copyright infringement.

8/18/16