Instructors and students copy the same course materials semester after semester. Whose responsibility is it for setting copyright policies and following copyright guidelines: the administration, the library, or faculty?

It is the institution's responsibility to develop a copyright policy and to see that it is followed. The institution bears the ultimate responsibility, but the faculty member may also be liable if he or she is violating the institution's policy about reproducing course materials. The question implies that the copying is being done without paying royalties or seeking permission from the copyright owner. Most institutions have policies about paying royalties for course packs, even though the course pack litigation to date has involved for-profit copy centers that reproduced course packs and not colleges or universities themselves. A student making a copy for research or scholarship may be a fair use.

(1) May a teacher scan and display a short story or poem in its entirety for students enrolled in a course in a nonprofit educational institution to read prior to an upcoming class session? (2) May that materialor any material posted in the course management system for the coursebe accessed at any time during the duration of the course other than during scheduled class sessions (i.e., can students review the material at any time prior to the end of the course)?

(1) Yes, if it is typically the amount of material that would be displayed to a class in a face-to-face situation (the old "put it on transparencies or slides" idea). So, if the work is a book-length poem, probably not, but a two-page poem, yes. The same is true for a brief short story. If it is more than a few pages, though, it likely would not be permissible under section 110(2) of the Copyright Act (known as the TEACH Act), but it would be covered by section 107 (fair use) and should follow the Guidelines on Multiple Copying for Classroom Use (Classroom Guidelines).

(2) Text materials placed in the course management system under fair use can be accessed at any time, but performances and displays under the TEACH Act are restricted to access during the class session. Under the Classroom Guidelines, text materials such as articles may remain in the course management system for only one semester, but there is no limit on downloading or retention during the course term. For performances and displays, there is not a one-semester limit, but student access is limited to the "class session" and the works may not be downloaded.

The school choir director is under the impression that a work of music can be reproduced for each member of the choir for a college choir performance without penalty as long as the photocopies are collected and destroyed within 45 days. This sounds like flagrant infringement. Is it?

It is pretty suspect. The Guidelines for Educational Uses of Music (Music Guidelines), which were developed in 1976 and published in House Report 94-1476, allow photocopying sheet music for performance but for emergency purposes only. For example, if one of the performers has lost his or her copy of the music and the performance is imminent. According to the Music Guidelines, even after the performance the school still must purchase the music. In order to protect the school from liability, the faculty member should be required to produce some proof of an agreement from music publishers before committing the school to such a practice. The Music Guidelines are available at unc.edu/~unclng/music-guidelines.htm.

A teacher in a nonprofit educational institution music therapy program is interested in the use of sheet music and printed scores in that program. She asks whether fair use, the TEACH Act, or other statutes and regulations apply. What are the guidelines for students who routinely download sheet music to learn and bring into lessons and music therapy clinical sessions?

If these music therapy sessions are for teaching students to be music therapists in a nonprofit educational institution, then the Guidelines for Educational Uses of Music apply. The Music Guidelines cover both the reproduction of music recordings as well as sheet music for educational purposes, but typically for study, not for performance. General fair use also applies. For performance and display of nondramatic music in a face-to-face classroom in a nonprofit educational institution, the section 110(1) exception applies and permits the performance of a nondramatic musical work if the purpose is for instruction and the other conditions are met. It the class is a transmitted or online class, then the TEACH Act permits the performance. Neither of these sections apply to reproducing sheet music, though. If the music is to be performed, it is a good idea to ask students to make sure that they examine the copyright notice on the sheet music on the web and ensure that there is no restriction on downloading for performance.

A state agency library is often used by attorneys general (AG) who argue cases on behalf of the agency. Sometimes they need a copy of an industry standard for their case. They ask the librarian to copy the entire standard, which can cost from $40 to over $200 each, depending on who created it (e.g., American Ladder Institute, American Society of Safety Engineers). May the library reproduce industry standards for the AG? If not, then is it permissible to check out the library's copy of the standard to the AG and let them do what they will as long as the library gets its copy back? Is there any exception to copyright law that allows attorneys to make photocopies for court cases without the restrictions of copyright?

According to the standard legal treatise, Nimmer on Copyright, if the material is going to be introduced into evidence in a court proceeding, reproducing it for this purpose is fair use. But if the standard is used only for preparation for the trial and will not be introduced into evidence, it may be fair use or it may be infringement to reproduce the entire standard. Lending the standard to the AG is no problem. If the AG staff rather than the library reproduces the standard, it may be infringement, but the library has avoided liability. The state has not, however, and will still be liable for any infringement.

What are the copyright issues regarding copying an assessment tool that was published in i960 and reproduced many times in various texts? Is it infringement to reproduce the tool?

The first question is whether the assessment tool is protected by copyright or whether it is in the public domain. If published in i960, the copyright would have expired in 1988 (28 years after the date of publication). The copyright would have had to be renewed in 1988; if it was not renewed, the work is in the public domain today. If it was renewed, then the work would have received an additional 67 years of copyright protection. Assuming the renewal occurred in a timely fashion, copyright protection would last until 2055. If the work is still under copyright, whether permission is required depends on the use that will be made of the reproduction of the assessment tool. Reproducing it or a portion of it for scholarship or research is likely to be fair use. Reproducing it for use in teaching in a nonprofit educational institution may be fair use. Making copies for other purposes, such as using the assessment tool for students, probably requires permission. The fact that the assessment tool has been reproduced many times in textbooks does not necessarily mean that it was done without permission or paying royalties.

A professor of communication studies has written an article that analyzes critiques of and comments upon advertising appearing in a popular computer magazine. The article quotes from several of the ads, and the professor wants to reprint six of the advertisements in the article. Would this qualify as a fair use? If not, from whom should she seek permission?

Quoting from the advertisements, with proper attribution, is likely to be a fair use. The purpose of using the quotations is to produce a critique of them, the amount used is small, and there is likely to be no market effect. To reproduce some of the ads in their entirety, she does need permission since each advertisement is an entire copyrighted work. It is the same as including a copyrighted photograph in the article; because each photo is a separate copyrighted work, reprinting one in the article requires permission.

The simple answer to the question about from whom to seek permission is the copyright owner, but that is not always easy to determine. The professor should start with the magazine publisher and ask for permission to reprint the ad. She will probably be referred to the advertising agency that produced the ad, and the agency will know whether it or the company that hired the agency owns the copyright in the advertisement.

 
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