Copyright Guidelines
DO:
- Familiarize yourself with the basics of copyright law and fair use doctrine and know that copyright law benefits you as both a creator and user of others’ works. See copyright.gov and
related copyright.gov FAQs for more information. - Seek guidance from the College’s copyright team at copyright@bcomnm.org when questions or concerns arise.
BE AWARE:
- For-profit educational environments are not able take advantage of many exemptions within copyright law, including 17 USC §110 that pertains to classroom and public performances and displays (such as multiple classroom print copies, showing copyrighted DVDs) and the TEACH ACT. In a for-profit environment, the fair use test is more stringent because of the first factor that balances the nature of the use. Regardless, in most cases the College is able to find legal and appropriate solutions to help make needed content available to students and faculty.
- Not every educational use is a fair use. Apply the Four Factor Test to determine whether a fair use is acceptable and then document and file the results. An online Fair Use Evaluator can help.
- Although a work, image, music file, etc., may be freely available on the web or elsewhere, it does not mean that it is not protected.
- Attributing the source of copied material may protect you from a plagiarism claim, but it is not a protection from a potential copyright infringement claim.
- A copyright symbol © no longer needs to appear on a protected work, and a work does not need to be registered with the U.S. Copyright Office, although there are benefits to doing both.
- Works made available by the institution, such as online textbooks, software, and library ejournals and databases are subject to licenses that fall under contract law. License terms trump a fair use. Students, faculty, and staff must comply with all licensing requirements. Direct questions to copyright@bcomnm.org for details on permitted uses of these resources, such as whether and how you are able to post an article from a library database in your online course page.
IN PRACTICE:
- Proactively seek guidance from experts within the organization through copyright@bcomnm.org. Legal advice may be available if higher-level questions or issues arise.
- Share digital works in a restricted environment, such as the learning management system. Do not violate copyright and then further violation by sharing files, e-mailing, and/or posting protected content on the web.
- LINK OUT whenever possible versus downloading and sharing a file. This applies to emails, PowerPoint presentations, postings within the learning management system, and other electronic communications.
- Include a copyright notice on documents and postings when applicable to prevent further distribution of content–especially digital content.
- Use only portions/snippets of works and take precautions to avoid systematic re-use and redistribution of content.
- Consider alternatives to the use of protective works when needed.
- Seek permissions when needed and document your attempts.
- Always practice in good faith … don’t willfully infringe.
- Heed warnings from rights holders if there is an infringement claim.
- Take advantage of institutional resources, procedures, and tools that are readily available to help you secure and/or utilize desired content in support of your teaching, learning, and/or research.
- Adhere to best practices. You, individually, and the institution are responsible for staying in compliance with copyright law.
Copyright falls under the umbrella of Intellectual Property presented in Article I, Section 8, of the U.S. Constitution, which discusses it as one of the roles and powers of Congress: “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
The Copyright Act of 1976 (Title 17 of U.S. Code) and its amendments spell out the rights of copyright holders and identifies exemptions, including the Fair Use Doctrine, which allow for the use of protected works under certain circumstances.
In order for a work to be protected, it must 1) be original and include an element of creativity; and 2) it must be fixed in a tangible means of expression. However, registration of the work with the U.S. Copyright Office or including a symbol © or other copyright notice are not conditions of copyright, as copyright is automatically fixed once placed in a tangible format. There are, however, benefits to registration and placing notice(s) on a work.
| PROTECTED WORKS | NOT PROTECTED WORKS (FREE TO USE) |
|---|---|
| Literary works Musical works Dramatic works Choreographed works Motion pictures, other audio-visual Sound recordings Architectural works Visual works Visual art Computer programs | Facts Common property information, such as calendars Symbols, slogans, names, etc. Public Domain -Most U.S. Government works -U.S. works published before 1923 -Certain other 20th Century works (consult a -public domain timeline) |
Copyright holders are granted 5 exclusive rights that include the rights to:
- Reproduce (copy) the work
- Make derivative works
- Distribute, sell, rent and/or lease copies
- Perform the work publicly
- Display the work publicly
Fair Use is one of several limitations to the rights of copyright holders provided within the law to make protected materials available for use by others, ensuring our ability and democratic right to freely exchange and transform ideas. Title 17 USC §107: Limitations on exclusive rights reads:
Use … for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include the —
- Purpose and character of the use (is the use of a commercial nature or is it for nonprofit educational purposes);
- Nature of the copyrighted work (is it factual or creative);
- Amount and substantiality of the portion used in relation to the copyrighted work as a whole;
- Effect of the use upon the potential market for or value of the copyrighted work.
When can you apply fair use? Fair Use is analyzed on a case-by-case basis. To determine if your intended use of a work is fair, you must balance the use based on each of the (4) factors above. If your responses weigh in favor of fair use, then you may use the material without obtaining permission from the copyright holder. If your responses weigh against fair use, then you are best advised to obtain permission for the use. The American Library Association’s Fair Use Evaluator and others available online can help you think through a fair use analysis.
Well-established guidelines indicate that repeated use of the same materials may tip the balance against fair use. If this is the case, you should seek copyright clearance for each subsequent use of the materials.
These steps below are recommended if you need to seek permission to use a protected work. If you need assistance, please contact the college’s copyright team at copyright@bcomnm.org.
1st: Select the work. Select back-up materials if possible. Look for materials in the public domain or that may have a Creative Commons license.
2nd: Consider if permission is required. Ask yourself if fair use applies. Consider or find out whether there are there any other exemptions that may apply.
3rd: Obtain permission. Identify the copyright owner. Be aware that the person who created the work is not always the copyright owner. You may need to contact the owner(s) directly by phone, e-mail, or letter.
- Permissions may often be secured through the Copyright Clearance Center or other collective rights agency. Payment of fees are likely to be required.
- It is important to document your communications and any permissions received regardless of who granted the permission.
4th: If you can’t obtain permission. Return to fair use and analyze the risk; asking for guidance is recommended. Consider replacing the work with a back-up, changing your plan of use, or creating a new or transformative work. Don’t think that you are “free and clear” to use a protected work because you didn’t get a response from the copyright holder.
- Create your own work or transform an existing work, which would then make you the copyright holder.
- Public domain works can be used freely by anyone without permission. These include many government documents, and materials for which the copyright has expired. To determine if a title or publication now falls within the public domain, refer to this chart or others on the web for details: https://copyright.cornell.edu/publicdomain
- Open access resources are becoming increasingly available. These works are copyrighted but the owner has made them publicly available with limited or no restrictions through newer licensing models such as Creative Commons.
- Use existing college and library-acquired resources that are already available to you. These resources are typically bound by licenses which supersede copyright. College faculty/staff and librarians can help determine permitted uses. Questions may be directed to copyright@bcomnm.org.
According to 17 USC §504, an infringer of copyright is liable for either 1) Actual damages and any lost profits; or 2) Statutory damages of not less than $750 or more than $30,000 per work, as determined by the court. Willful infringement can result in a liability of up to $150,000 for each separate act of infringement. If a “good faith fair use defense” proves successful in court, statutory damages may be reduced to not less than $200. There are also “additional damages” that may come into play.
Although you can still be held liable for copyright infringement, whether or not you were aware that you were violating the law, penalties will be much more severe if you knew you were violating and chose to do it anyway.
Burrell Students, Faculty, and Staff
Please review the College’s Copyright Compliance Policy B5041. Anyone suspected of copyright violations may be reported, anonymously if preferred, to the Compliance Officer through an online incident report form. Students, faculty, and staff who are found in violation of College Policies are subject to appropriate disciplinary action including termination or involuntary withdrawal from the College. Anyone found liable for civil and/or criminal copyright infringement may be responsible for any monetary damages suffered by the College due to such violations of the policy or related law or regulation.
- American Library Association – Copyright Advisory Network
- Copyright Genie: https://librarycopyright.net/resources/genie/index.php
- Fair Use Evaluator: https://librarycopyright.net/resources/fairuse/index.php
- Columbia University Libraries – Copyright Advisory Services
- Copyright Clearance Center
- Copyright.gov – Frequently Asked Questions About Copyright
- Creative Commons
- New Mexico State University Library – Copyright Essentials
- No Electronic Theft Act (NET)
- Stanford University, Copyright & Fair Use
- United States Copyright Office, Copyright Law of the United States
- United States Copyright Office, § 107. Limitations on exclusive rights: Fair use
- United States Copyright Office, Digital Millennium Copyright Act Summary
- University of Texas at Austin Copyright Crashcourse
