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Copyright in Higher Education

Resources for Faculty/Staff

FAQ

May I make copies of works and distribute them to my class?

§ 107 of U.S. copyright law explicitly authorizes the making of multiple copies of copyrighted works for classroom use, provided the purpose of the copies, the nature of the original work, the amount and substantiality of the portion of the work being copied, and the effect on the potential market for or value of the original work are all in keeping with the principles of fair use. For help making a fair use determination, please see the Columbia Copyright Advisory Office's Fair Use Checklist. To be redirected to the section of this guide devoted to fair use, please click here.

May I upload journal articles and/or book chapters to Blackboard or Moodle?

Although there is no provision in U.S. copyright law for "e-reserves" or uploading materials to course management systems like Blackboard or Moodle, recent court decisions such as such as Cambridge Press v. Georgia State University indicate that judges are likely to see this activity as clearly permissible provided the purpose of the use, the nature of the original work, the amount and substantiality of the portion of the work being used, and the effect on the potential market for or value of the original work are all in keeping with the principles of fair use. That said, a safer alternative is linking to journal articles within Hoover Library's databases.

For help making a fair use determination, please see the Columbia Copyright Advisory Office's Fair Use Checklist. To be redirected to the section of this guide devoted to fair use, please click here.

What kind of statement should I include in my Blackboard class when I post copyrighted materials?

Here is an example you can use and modify:

All readings posted on Blackboard are intended for use in this class only. Copying, e-mailing, or posting these materials online for any other purpose without the copyright holder's express written consent may be prohibited by law. For more information about copyright, including information about how to obtain permission to use a copyrighted work, please see the U.S. Copyright Office's Frequently Asked Questions page: http://www.copyright.gov/help/faq/

May I create "coursepacks" containing copyright material and ask students to reimburse me for the cost?

Court decisions like Basic Books, Inc. v. Kinko's Graphics Co. and Princeton University Press v. Michigan Document Services, Inc. seem to clearly indicate that any transaction involving money will be seen as "commercial," thus making it more difficult to support a claim that a coursepack constitutes a fair use.

If your pedagogical needs are such that a course packet is required, the College bookstore has a partnership with an outside vendor called Xanedu. Xanedu will obtain the copyrights for your materials, develop your course packets for you and then make them available by purchase through the College bookstore. The College’s custom URL can be accessed at the following link.  However, instead of making students pay for course materials, consider linking to resources available in the Hoover Library's collections.  Contact a librarian for help!

Who owns the copyright to my course materials?

As "original works of authorship" fixed in a "tangible medium of expression," course materials are definitely covered by copyright. The question is who owns them? § 101 of U.S. copyright law defines a "work made for hire" as "a work prepared by an employee within the scope of his or her employment" or "a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire."

Course materials produced by regular and adjunct faculty are likely to be seen as qualifying as "works made for hire" according to the above definitions. As such, according to § 201 of U.S. copyright law the copyright for these materials can be assumed to belong to the college or university which employs the professor who created the work(s) in question. Recent court decisions uphold this view, and also suggest that a general college or university policy is insufficient to override this "default setting" in the absence of signed, written instruments transferring copyright to the creator of the work.

Best Practices Steps

Copyright/Fair Use Best Practices Steps

Purpose: These steps are written for all instructors and faculty to provide helpful information about some common best practices to follow when providing students with resources covered by Copyright laws. 

  1. Assume all works are covered by Copyright if it was created by someone other than you and it is not in the public domain.  If you created it but someone published it, make sure you still have the rights based on the agreement you made with the publisher before you use it in any way that violates that agreement. 
  2. Instead of copying, downloading, uploading and/or posting it - always link instead, it’s safer.  Linking to library resources in particular is always safe because the library has already taken care of the license requirements to make it legally available to current students, faculty and staff of McDaniel. Check to see if the Hoover Library has electronic access and LINK to it.
  3. If the Hoover Library doesn’t currently have access, contact us and see if we can get it.  If there is not currently any digital copy available for library licensing, you can work with a librarian to locate alternative sources on the same topic that are available.
  4. If you do download/upload (=copying) and post (=distribute) any copyrighted resource in any way, make sure you understand the risks you assume if you willfully disregard Copyright laws. McDaniel College’s “Policy for the Use of Copyrighted Works” makes you responsible and liable.
  5. Use of copyrighted resources for teaching may fall under Fair Use, but you must apply the “four-factor fair use test.” Run each use of a copyrighted work through the Fair Use Checklist created by Columbia University's Copyright Advisory Office.  You should exercise your Fair Use rights, but you need to be able to justify that you believe your use is Fair Use.  The checklist provides a record for you to prove your case should you need it.
  6. Be aware that the TEACH Act also provides for some specific uses of copyrighted resources in online course environments, but interpreting this correctly can be complicated.  Learn more about the TEACH Act and use an example checklists for the TEACH Act to ensure you are following the correct procedures.
  7. Review all your copyrighted resources each semester to make sure the links are still active or that your posting (distribution) still constitutes Fair Use.
  8. If you determine that your use does not pass the four-factors Fair Use test well enough to believe it is Fair Use and it is not covered under the TEACH Act - obtain copyright permissions through the rightsholder.  Make sure you keep a record of all rights you have obtained.
  9. Provide complete citations whenever you copy, link or post something that contains copyrighted information.  Set a good example for students.
  10. Provide a copyright statement on any handouts or webpages where you allow students to use copyrighted resources.  This helps ensure they are aware the works are copyrighted and there are limited rights for their use of those works. (see above example in the FAQs)
  11. Make sure you limit access to only students in the class if you do post copyrighted resources (e.g. inside a password protected course site like Blackboard).  Never post it on the open web unless you receive permission from the rightsholder explicitly for that purpose.
  12. If you receive any communication from the rightsholder that you are violating their copyrights, comply immediately with their request to remove and delete the offending files.

Prepared by Jessame Ferguson for the faculty Copyright/Fair Use education programs in 2014 & 2015 and last updated on 11/20/15.  These steps are meant to briefly outline current best practices for educational purposes only and do not constitute legal advice in any way.