Copyright Policy

1. What is Copyright?

Copyright is a form of legal protection for authors of original works, including literary, dramatic, musical, artistic, and other intellectual products.  This protection applies to published and unpublished works, including those not registered with the U.S. Copyright Office.  Copyrights usually last through the life of the author, plus seventy years.   Section 106 of the Copyright Act (90 Stat 2541) generally gives the owner of copyright the exclusive right to do and to authorize others to: 

a.   Reproduce copies of the work. 
b.   Prepare derivative works based on the copyrighted work. 
c.   Distribute copies of the work by sale, rental, lease, or lending. 
d.   Publicly perform the work.
e.   Publicly display the work. 

Works no longer need to be registered with the Copyright Office to be officially copyrighted.

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2.  What is "Fair Use"?

The doctrine of fair use, introduced in Section 107 of the 1976 Copyright Act, attempts to address the balance between the needs of the public and the rights of an author. Fair use is expressed in the form of guidelines rather than explicit rules. To determine whether the use made of a work is an infringement of a copyright, the following factors should be considered: 

1. The purpose and character of the use, including whether the copied material will be for nonprofit, educational, or commercial use. Note: Several courts have held that absence of financial gain is insufficient for a finding of fair use.  
2. The nature of the copyrighted work, with special consideration given to the distinction between a creative work and an informational work.  For example, photocopies made of a newspaper or magazine column are more likely to be considered a fair use than copies made of a musical score or a short story. Duplication of material originally developed for classroom use is less likely to be a fair use than is the duplication of materials prepared for public use. Someone who copies a workbook page or a textbook chapter is seen to be depriving the copyright owner of profits more directly than someone copying a page from a newspaper.
3. The amount, substantiality, or portion used in relation to the copyrighted work as a whole. Factors to be considered: the proportion of the larger work that is copied and used, and the significance of the copied portion.
4. The effect of the use on the potential market of the copyrighted work.  If the reproduction of a copyrighted work reduces the potential market and sales for the copyright owner, the use is likely to be declared an unfair use. 

The interpretation of Fair Use will continue to evolve as new digital technologies affect the creation, distribution, use, and preservation of information.  Open source software and peer-to-peer networking (downloading and sharing digital music, movies, text, etc.) are but two examples of these new technology capabilities.   Recent legislative and regulatory actions have focused on digital rights management, including expanding the ability of content providers to introduce access controls (e.g. encryption).  For more information see the Copyright Resources listed at the end of this document. 

Digital Millennium Copyright Act 

The Digital Millennium Copyright Act (DMCA), enacted in 1998, updated copyright law to encompass the growing use of computers and the Internet.  To address the concerns of fair use, Congress included specific language that appears to provide certain exemptions for fair use (particularly for nonprofit archives, libraries, and educational institutions).

Basics of the act include the following points:

	Makes it a crime to circumvent anti-piracy measures built into most commercial software.
	Outlaws the manufacture, sale, or distribution of code-cracking devices used to copy software illegally.
	Permits the cracking of copyright protection devices, but only in order to conduct encryption research, assess product interoperability, and test computer security systems.
	Provides exemptions from anti-circumvention provisions for nonprofit libraries, archives, and educational institutions under certain circumstances. Note: There must be concrete evidence that someone seeking an exception has suffered harm because of the anti-circumvention provision -- several academic organizations have called for a revision to permit "fair use" of copyrighted material for research and teaching.
	Limits Internet service providers from copyright infringement liability for simply transmitting information over the Internet. Service providers, however, are expected to remove material from users Web sites that appear to constitute copyright infringement.
	Limits liability of nonprofit institutions of higher education (when they serve as on-line service providers and under certain circumstances) for copyright infringement by faculty members or  students.
	States explicitly that "[n]othing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use...."

The agent designated to receive and act on copyright violations under the Digital Millennium Copyright Act (DMCA) is:

Carol Creager, College Librarian
Grafton Library, Mary College, Staunton, VA 24401                     
copyright@mbc.edu

A summary of the DMCA is available at: http://lcweb.loc.gov/copyright/

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3.  What materials may be used without first obtaining the copyright owner's permission and/or paying a royalty? 

Brevity:

Spontaneity:

• The copying is at the instance and inspiration of the individual instructor.
• The inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission.

Cumulative Effect:

• The copying of the material is for only one course, with no more than one copy per student in the course.
• Not more than one short poem, article, story, essay or two excerpts may be copied from the same author, nor more than three from the same collective work or periodical volume during a term.
• There should not be more than nine instances of such multiple copying for one course during a term.

Copying Never Permitted:

It is never permissible to make copies of consumable materials such as workbooks, tests, and answer sheets.

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4.  How does Copyright Law affect Distance Education?

The "Technology, Education and Copyright Harmonization Act" (TEACH Act), became law in November of 2002.  It redefined the terms and conditions under which accredited, nonprofit educational institutions may use copyright protected materials in distance education. The TEACH Act  expands the scope of materials that may be used; the ability to deliver content to students outside the classroom; and the opportunity to retain archival copies of course materials on servers.  The revised Sections 110(1)-(2), define the legal parameters for the performance and display of copyrighted materials in educational settings. 

Section 110(1) permits teachers and students in a nonprofit educational institution to perform or display any copyrighted work in the course of teaching activities.  Faculty and students may act out a play, read aloud a poem, display a cartoon or a slide, or play a videotape so long as the materials were lawfully obtained and are used for instructional purposes.

Section 110(2) as revised, permits the performance and storage of a nondramatic literary or musical work or display of any work as a part of a transmission for distance learning purposes if 

1) The transmission is provided "solely for students officially enrolled in the course for which the transmission is made".  

2) The institution employs technical measures to prevent:

    a)  "the retention of the work in accessible form by recipients of the transmission for longer than the class session" 

    b)  the recipients of the content from engaging in "unauthorized further dissemination of the work in accessible form."  

The bottom line: material that is not technologically protected must not be made available digitally. 

Common Questions:

Is content on the Internet copyrighted?

Yes, everything on the Internet (including everything on the World Wide Web) is copyrighted. It is common to assume that everything on the Web is in the public domain.  While it is true that documents on the Web (and in other digital formats) are easier to reproduce and distribute than other media, the ease of reproduction and distribution does not change the copyright.  Digital content is still copyrighted, and copying or reproducing it without permission may be illegal.  Some organizations grant permission to reproduce and distribute copies of their work (on a website) for nonprofit educational or library purposes, provided that copies are distributed at or below cost, and that the author, source, and copyright notice are included on each copy. 

Is linking to something on the Web a copyright violation?

When you create a hyperlink from one web page to another, you have not made a copy of the original work, so this is not a copyright violation. Generally, you are also not expected to request permission to link to a web page, though it is often considered courteous to do so. 

May an instructor scan and upload a full or lengthy work and store it on a website for students to access throughout the semester-even for private study in connection with a formal course ?

No, the law permits students to access each "session" within a prescribed time period.  Students will also not be able to store the materials or review them later in the academic term.   Under the Teach Act, faculty are able to include copyrighted materials, but usually only in portions or under conditions similar to standard teaching and lecture formats.   The TEACH Act prohibits institutions from storing or maintaining material on a network where it may be accessed by anyone other than the "anticipated recipients"  (i.e. students enrolled in a course).  

Do course materials delivered through Blackboard software meet copyright guidelines?

Yes, if an instructor places copyrighted material in a section of a Blackboard course site that is secure.  The distribution of these materials will be limited to students enrolled in the course and there will also be technological limitations on access to the materials - i.e. students must enter their network password and ID.  Please note: the law permits the performance of an entire copyrighted work or a large portion thereof to be transmitted only once for a distance learning course. For subsequent performances, displays or access, permission must be obtained.

May online course materials that accompany a textbook be added to a course website?

Yes, if an instructor places the material in a secure site (using FrontPage, Blackboard, etc.), or if the publisher grants unsecured access.   The TEACH Act prohibits institutions from storing or maintaining material on a network where it may be accessed by anyone other than the "anticipated recipients"  (i.e. students enrolled in a course).

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5. What Guidelines apply to placing materials on Reserve in the library? 

The Library Reserve service should be used to supplement required course materials; faculty should refrain from using reserve readings as the only assigned materials for a course.  Readings cannot remain on Reserve for more than one semester without copyright permission.  Electronic Reserve materials must be placed in secure site, limiting distribution to students enrolled in a course.  There must also be technological limitations on access to the materials - i.e. students must first login.   Short-term access to materials included on electronic reserve systems in previous academic terms may be provided to students who have not completed the course.  Material may be retained in electronic form while permission is being sought or until the next academic term in which the material might be used.  Articles that are used for a class year after year become part of course work and require permission each term/semester.  All copies on Reserve must be marked: NOTICE: This material may be protected by copyright law (Title 17 U.S. Code)

Books	You may place an entire (print format) book on reserve. Complete works, which are in print, will not be added to electronic course reserves.  Complete works, which are out-of-print, may be added to electronic course reserves with appropriate copyright clearance.  Copyright does not end when a book is out of print. A photocopy or one electronic copy of a complete chapter, poem, story or essay from a collected work, if it does not constitute a substantial portion of the total work, may be placed on reserve.
CDs	You may place the original item, but no copies, on Reserve.
Journal & Newspaper Articles	You may place a photocopy of one article, poem, story or essay from a single issue per journal title on Reserve.  Single photocopies or one electronic copy of an article may be placed on Reserve.  These photocopies are considered to be the instructor's property.  A faculty member may provide duplicate photocopies (one photocopy per 10 students) when a course is large enough to require more than one of an assigned photocopy.  If the original journal is not owned by the Library or the instructor, the instructor must provide written permission or indication of royalty payment for photocopies in excess of one.
Music	You may place a single copy of an entire performable unit (section, movement, aria, etc.) if the unit is out of print or available only in a larger work.
Videotapes and Off-air recordings	You may place the original item, but no copies, on Reserve. You may place off-air recordings on Reserve if  1) you have permission from the copyright holder or 2) the program, when broadcast, could be picked up by a non-cable television set at the time of recording. Programs from cable sources, such as HBO, A&E, etc., are not considered "off-air" and must be licensed.  The period of Reserve may not exceed 10 "school days" past the recording date.
Software	Check with the Computer and Information Systems Office to verify license rights before requesting to place software on Reserve.

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6. What Guidelines Apply to Coursepacks?

Every article or chapter in a coursepack/reader, if derived from copyrighted material, requires permission, either from the copyright owner (usually the publisher) or through a royalty fee paid to the Copyright Clearance Center.   Permission must always be obtained prior to producing, selling, or distributing such material to students. You may normally include the following items in a coursepack: 

Each item in the packet also must include a notice of copyright -- e.g., "Copyright 1999 by Academic Press".  Students who purchase course packets should not be charged in excess of cost of reproduction.

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7. What Guidelines apply to the use of Films and Video Recordings?

Ownership of a film or video does not confer the right to show the work. The copyright owner specifies, at the time of purchase or rental, the circumstances in which a film or video may be "performed". For example, videocassettes from a video rental outlet usually bear a label that specifies "Home Use Only".  

Classroom Use

Use Outside of the Classroom

Video recordings that are owned by the College may ordinarily be viewed by small groups of students, faculty or staff.  These videos may also be viewed at "home" (e.g. in a dorm room for on-campus students or personal residence for non-residential students).  Viewings by larger audiences require explicit permission from the copyright owner for "public performance" rights.  The Library's online catalog includes notes "Educational Public Performance Rights secured" and/or "Staunton Campus Closed Circuit Rights secured" for videos with that status.   No fees for viewing a video are permitted even when public performance rights are obtained.

Common Questions:

May I purchase or rent a film from the local video store and use it in my class?

Tapes from a video store are labeled "Home Use Only", indicating a licensing agreement with the copyright holder. Nevertheless, use of such tapes is considered "fair use" in a face-to-face teaching situation. Tapes marked "Home Use Only" may also be placed on reserve if they are used strictly for instructional purposes and not entertainment.

Is it permissible to make a copy of a rental video in order to use it again, later?

No. That would infringe on the rights licensed to the rental agency. 

May Francis Auditorium be used to show a video labeled "Home Use Only" to a class?

Yes, so long as the performance is not open to the public and is for an instructional purpose within the structure of the course.  Use for entertainment is prohibited.

May a college-owned video be copied for Reserves? 

Not unless permission for the copying has been obtained from the copyright owner.

May a club or other group show a video obtained from a local video store?

No. However, many film/video libraries and distributors offer the required "public performance rights" that are included in a higher rental fee.

What if a student rents a video from a video store and views it with a few friends in her dorm?

Since access to dormitories is limited to acquaintances of students, this would seem to be comparable to "home use".  Getting together to watch a video in the Nut House or the Ham and Jam Pub would not be allowed as these settings are open to the general public. 

I don't have time to preview a video, and it's due to be returned to the vendor. Can Audiovisual Services copy it for me?

No; preview videos may not be copied. But in an emergency Audiovisual Services can ask the vendor for an extended preview period.

May video materials sent to the College for preview be shown to a class?

No; this becomes a rental use and requires the higher rental fee to be paid.

May a videotape be made of a film that is out of print and/or deteriorating rapidly?

Although the film is out of print, permission of the copyright owner is nonetheless required. An exception is made for libraries to replace a work that is lost or damaged if another copy cannot be obtained at a fair price. 

May copies of College-owned videotapes be sent to off-campus students?

Yes, as long as they are used for instructional purposes by currently enrolled students.  The copy must be returned when the student completes the course. 

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8. What Guidelines apply to the Off-Air Recording of Broadcasts?

Licenses may be obtained for off-air recording.  Absent a formal agreement, the following "Guidelines for Off-the-Air Recording of Broadcast Programming for Educational Purposes", an official part of the Copyright Act's legislative history, applies to most off-air recording [from Virginia M. Helms, supra]:

These guidelines apply only to nonprofit educational institutions, which are expected to establish appropriate control procedures to maintain the integrity of the guidelines. 

Certain public broadcasting services (e.g. Public Broadcasting Service) impose similar restrictions but limit use to only the seven-day period following local broadcast [Virginia M. Helms, supra].

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9. What Guidelines apply to the copying of Sound Recordings?

Common Questions:

May an instructor provide students with copies of audio recordings assigned for a class ?

Yes, if you record your own "homemade" cassettes/disks. AV Services will ask you for written permission to make copies for your students or for others. 

If the materials you assign are from a commercial publisher, you are required to obtain permission in order to have copies made.

What guidelines apply to the recording of College performances? 

AV Services will record on-campus College performances if prior written permission of the performer/s has been obtained.  Individuals should also obtain permission to record.

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10. What Guidelines apply to the copying of Computer Software? 

Mary Baldwin College negotiates multiple licenses with vendors whenever possible for software products that used to support instructional and administrative activities.  Software products that are not licensed to the College may also be used. However, copying is strictly limited except for backup purposes. Whether the software is transferred from the original to a hard disk or to an archival diskette, the backup copy is not to be used at all so long as the other copy is functional.  It is not permissible to upload copyrighted software to Internet for downloading.

Common Questions:

Is it permissible to use single-user licensed software on multiple computers for use at the same time? 

No. If simultaneous use on multiple computers is necessary, consider the possibility of a site licensing arrangement with the vendor. Another possibility is that the vendor may offer a price break for multiple copies or "lab packs".  It is also not permissible to make copies of copyrighted software for individual student or faculty use unless the license specifically allows such a copy. 

Is it permissible to make a copy of software licensed or owned by the College for personal use? 

No; unless such use is explicitly allowed by the software vendor.  Check with CIS if you have questions.

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11. What Guidelines Apply to the conversion of other Analog Materials to Digital Format?

The TEACH Act permits the conversion of such materials under the following circumstances:

1) the projected use of the materials to be converted complies with revised Section 110(2) 

2) a digital version of the work is not "available to the institution" (i.e. the work is not already available in digital form).   Analog recordings and images that are readily available in usable digital form for purchase or license at a fair price should not be digitized without permission.

Faculty and students may use recordings/images they personally digitize (for spontaneous use) only once.  Retention and further use of such images by the individuals or by the educational institution requires permission.  It is not permissible to scan copyrighted materials (published graphics and text)  for educational/non-profit publication without crediting the copyright holder. 

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12. What Guidelines Apply to the creation of Educational Multimedia

The Guidelines specify the amount of copyright-protected sources that may be included in multimedia projects created by faculty and students for course-related work.  Use of larger portions requires the permission of the copyright holder.  The creator of a multimedia product may produce a total of three copies, one of which is for archival/backup purposes.  If the project is a joint project, each creator may retain a copy.  Fair Use expires two years after the first use of the product.

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13. What Guidelines apply to the downloading and sharing of Audio, Video, Software, and other files

Although file sharing programs are not illegal, they can be used for the illegal downloading and distribution of audio, video, software and other files. Downloading or distributing copyrighted material without permission of the copyright holder is a violation of federal and state law, even if it is not for profit.  The College does not censor internet traffic unless it is an appropriate response to an official complaint or in the case of illegal activity.  Our refusal to censor network use in no way condones violations of copyright or intellectual property laws.

Universities and colleges have begun to receive notices from organizations such as the Motion Picture Association of America, apparently acting as agents for music, movie, gaming software and other media companies, alleging copyright violations by users of the institution's network.  Under the DMCA, once notified, the College is expected to remove material from users Web sites that appears to constitute copyright infringement. The penalties for infringement can be significant, including imprisonment and fines.  Even unintentional infringement violates the law.

Network users should be aware that file-sharing programs automatically distribute files and turn on sharing when installed.  Mary Baldwin does not endorse the use of any of these applications.  Many of these programs also download and install other, often invisible programs that reveal information about individual users, their computers, and their networking activities to third parties.  Downloading files from unknown sources greatly increases the risk of receiving a file infected with a virus or worm.  Members of the MBC community who use such programs should ensure that they are not violating copyright by default, e.g., by sharing music or other media files or software they have loaded on their computer.    For detailed instructions on how to disable file sharing, please see http://security.uchicago.edu/peer-to-peer/no_fileshare.shtml

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14. How do I obtain permission for copying that does not meet the Fair Use Guidelines?

Faculty and students should obtain written permission from the copyright owner (author, publisher, etc.) to use a large portion of a work or an entire work (in print or digital format), or to produce multiple copies of book chapters or journal articles (for class handouts, coursepacks, library reserves, websites, publishing, or other uses).  Faculty may pass on to students any fees for copies which the copyright owner may assess. To obtain permission for photocopies:

	consult The Copyright Clearance Center which has the right to grant permission and collect fees for photocopying rights for certain publications.
	or write directly to the publisher for permission - For a sample form letter see:  http://www.utsystem.edu/ogc/intellectualproperty/permmm.htm

15. How do I obtain permission to show/broadcast video materials that currently do not have public performance rights?

The College uses Swank Motion Pictures, Inc. (http://www.swank.com) to secure public performance rights for feature films. Contact AV Services for information.  The Motion Picture Licensing Corporation (MPLC) also represents over 60 producers and distributors, including such studios as Walt Disney Pictures, Warner Bros., Scholastic Entertainment, McGraw-Hill, Sony Pictures Classics, Tommy Nelson, and World Almanac, and provides an Umbrella License^SM. Contact MPLC directly with any questions (including license fee quote requests) at phone number 800-462-8855, or via e-mail to info@mplc.com. See the web site of the MPLC (http://www.mplc.com/), for a list of Frequently Asked Questions (FAQ) as well as an explanation of the Motion Picture Licensing Corporation (MPLC) Umbrella License^SM.

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16.  Who assumes liability for copyright infringements?

With the passage of the DMCA, the law limits the liability of nonprofit institutions of higher education (when they serve as on-line service providers and under certain circumstances) for copyright infringement by faculty members or students.  For example, the College is protected from legal liability when network users share unauthorized material -- if it takes action when notified of a copyright breach. The College is legally required to take action to cause the infringing activity to cease.  Actions may include invalidation of an e-mail account, disconnecting a network port, and a report to the appropriate dean or manager for disciplinary action.  In the case of repeat infringers, the College is required under the law to take away the infringer's computer account and terminate all access to our network.  In addition to any College action, the copyright owner may also take further legal action against the individual concerned.

Section 108(f) of the law exempts library liability for the Unsupervised use of "reproducing equipment located on its premises" provided that the equipment displays a notice that the making of a copy may be subject to the copyright law.  This exemption would seem to underscore the importance of public posting of copyright notices in appropriate campus locations.  Sample language for the notice:

NOTICE: THE COPYRIGHT LAW OF THE UNITED STATES (TITLE 17 U.S. CODE) GOVERNS
THE MAKING OF PHOTOCOPIES OR OTHER REPRODUCTIONS OF COPYRIGHTED MATERIAL. 
THE PERSON USING THIS EQUIPMENT IS LIABLE FOR ANY INFRINGEMENT.

Supervised use: Faculty, staff, and students should verify that all copying complies with copyright law before requesting that copies be made by Support Services and other employees of the College.  

As stated previously, the Digital Millennium Copyright Act currently exempts online service providers from copyright infringement liability for simply transmitting information over the Internet.  Because the College offers Internet access to the faculty, staff, and students, it is considered an online "service provider" with regard to copyright law.  At present, the College provides connections for digital online communications for authorized users, of material of the user's choosing, without modifying the content sent or received. However, this exemption is being tested in the courts and may be revoked or modified in the future.    

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Additional Sources of Copyright Information:

http://lcweb.loc.gov/copyright/  U.S. Copyright Office

http://www.library.yale.edu:80/~okerson/copyproj.html  Yale University Copyright Site

http://www.ala.org/washoff/teach.html  Legal analysis of the Teach Act and its impact on distance education activities.

http://www.arl.org/info/frn/copy/band.html Legal analysis of the DIGITAL MILLENNIUM COPYRIGHT ACT.

http://www.umuc.edu/odell/cip/cip.html  Center for Intellectual Property and Copyright in the Digital Environment.

http://bailiwick.lib.uiowa.edu/webbuilder/copyright.html  Copyright and Multimedia Law for Webbuilders and Multimedia Authors

http://www.lib.ncsu.edu/scc/legislative/teachkit  The Teach Act toolkit - resource for understanding copyright and distance education.

Digital copyright : protecting intellectual property on the Internet / Jessica Litman. KF3030.1 .L58 2001 

The copyright primer for librarians and educators / Janis Bruwelheide.  E-Book.  http://proxy.mbc.edu:2048/login?url=http://www.netlibrary.com/urlapi.asp?action=summary&v=1&bookid=45147.

The copyright handbook  / Stephen Fishman.  Ref. KF2995 .F53 2000

Mary Baldwin College Acceptable Use Policy http://academic.mbc.edu/cis/policy/Acceptable_Use_Policy_Index.html

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Portions of the text in these guidelines have been adapted from policies and guidelines published by The University of Texas System, Wellesley College, Texas Tech University, The American Library Association, Boston College, Dartmouth College, and Roanoke College.   

Revised September 2005.