University of New England

Compiled by the Ad Hoc Copyright Policy Committee

Sharon Eckert, Chair
Vicki Agans
Marcia Cohen
Betsey Gray
Liz Havu
Holly Haywood
George Waggoner

Approved by University Council on September 5, 1996

Grateful acknowledgement is made to the following individuals who have given permission to use excerpts from their respective works:

Krystal Bullers, EDUCOM, Washington, DC
Georgia Harper, Office of General Counsel, The University of Texas System, Austin, TX
Sally Linden, Margaret Clapp Library, Wellesley College, Wellesley, MA

Excerpts from these authors' works and all others are attributed and cited in "Bibliographic Notes," p. 36-40.

In addition, grateful acknowledgement is made to Chuck Harding, University Duplicating Service, The University of Texas at Austin, for permission to use the July 1995
UDS Course Packet brochure as a model for UNE's.

I.   Introduction
     A.   What is protected by copyright
     B.   What is not protected by copyright
     C.   Fair use
     D.   Infringement
II.  Guidelines for Fair Use
     A.   Computer software
     B.   Electronic information, networks, the Internet
     C.   Films, audiocassettes, videocassettes
     D.   Illustrations, photographs, slides
     E.   Music 
     F.   Musical, dramatic, nondramatic performances
     G.   Printed materials
          1.   Classroom copying
          2.   Copy centers
          3.   Permissions
          4.   Library reserves
          5.   Interlibrary loan photocopies
III. Display of Warning of Copyright
IV.  Intellectual Property/Copyright Ownership at the University of New England
V.   Frequently Asked Questions About Copyright
     A.   Computer software
     B.   Electronic information, networks, the Internet
     C.   Films, audiocassettes, videocassettes
     D.   Illustrations, photographs, slides
     E.   Music
     F.   Musical, dramatic, nondramatic performances
     G.   Printed materials

Appendix

Sample Permission Letter

Bibliographic Notes

A primary mission of the University community is the exchange and development of ideas and information. Universities are the producers as well as users of such expression. The copyright law is intended to increase the free flow of ideas. Implementation of this law requires balancing the incentives given to authors to create works against free access of others to the ideas contained in those works. 1.

It is the intent of the University of New England that all members of the University community adhere to the provisions of the United States Copyright Law of 1976, as amended (Title 17, U.S. Code). The following policy statements and guidelines constitute a handbook for University community members who wish to reproduce, alter, or perform works protected by copyright, including printed materials, audio and video recordings, visual artworks, computer software, electronic information, and others.

Frequently asked questions, relevant to particular types of media, are included to provide guidance in interpreting fair use. Additional print and electronic resources relating to the copyright law, fair use, and its interpretation are available in the Jack S. Ketchum Library.

Copyright protects "original works of authorship" that are fixed in a tangible form of expression. The fixation need not be directly perceptible, so long as it may be communicated with the aid of a machine or device. Copyrightable works include the following categories:

1. literary works

2. musical works, including any accompanying words

3. dramatic works, including any accompanying music

4. pantomimes and choreographic works

5. pictorial, graphic, and sculptural works

6. motion pictures and other audiovisual works

7. sound recordings, and

8. architectural works

These categories should be viewed broadly, e.g., computer programs and most compilations are registrable as "literary works"; maps and architectural plans are registrable as "pictorial, graphic, and sculptural works." 2.

Publication is not essential for copyright protection, nor is the well known symbol of the encircled "c". For works published on and after March 1, 1989, use of the copyright notice is optional. 3. Section 106 of the United States Copyright Law of 1976, as amended (Title 17, U.S. Code) gives the copyright owner the exclusive right to do and to authorize others to do the following:

1. To reproduce the copyrighted work in copies or phonorecords;

2. To prepare derivative works based upon the copyrighted work;

3. To distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

4. In the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; and

5. 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, to display the copyrighted work publicly. 4.

Ownership of a book, manuscript, painting, or any other copy does not give the possessor the copyright. The copyright owner retains these rights even when the work itself belongs to someone else. 5. The rights, however, are subject to both "fair use" limitations which apply to all media (p. 3), and medium-specific limitations.

Materials generally not eligible for statutory copyright protection include:

1. Works that have not been fixed in a tangible form of expression, e.g., improvisational speeches or performances that have not been written or recorded;

2. Titles, names, short phrases, slogans, familiar symbols or designs, mere variations of typographic ornamentation, lettering, or coloring, mere listings of ingredients or contents;

3. Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration;

4. Works consisting entirely of information that is common property and containing nooriginal authorship, e.g., standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources. 6.

Some categories of publications are in the public domain, that is, their use is not protected by copyright law:

1. Works published more than 75 years ago

2. Works created by United States government employees in the course of their employment (most United States government documents)

Once a work has acquired public domain status, it is no longer eligible for copyright protection. 7.

It is the policy of the University of New England to adhere to the requirements of the United States Copyright Law of 1976, as amended (Title 17, U.S. Code). The doctrine of "fair use" of a copyrighted work, incorporated into the copyright statute as Section 107, addresses the needs of scholars, teachers, and researchers, and applies to all media. Fair use is an attempt to balance an author's copyright protection in creating intellectual works against the public interest in the dissemination of those works. To determine whether the use made of a work is fair use, the law defines four factors to consider:

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; and

4. The effect of the use upon the potential market for or value of the copyrighted work. 8.

All four factors must be examined, weighed, and balanced.

Members of the University of New England community who willfully disregard the doctrine of "fair use" do so at their own risk and assume all liability.

There is both civil and criminal liability for infringement of the rights of a copyright owner. An infringer may be sued for either actual or statutory damages and, in addition, may be prosecuted for criminal violations. The copyright owner has the right to try to prove what his or her actual damages are and collect that amount or may elect to receive the damages authorized by statute ("statutory damages") in lieu of actual damages. The statutory amount currently is limited to $100,000 per work infringed in any case where the court finds that there was willful infringement. In either case, the copyright owner may, in the court's discretion, recover costs, which may include attorneys' fees. Any person found guilty under the criminal sections of the law may be imprisoned up to one year, fined up to $25,000, or both. These provisions of the law apply to all cases of infringement regardless of the media involved.

It is most important to understand that the court need not find a willful infringement (that the infringer intended to infringe) in order to award damages or find guilt. For example, copying software is an infringement and a crime even if the person copying it does not know that copying is a violation of the rights of others and against the law. 9.