Copyright compliance policy

Purpose
SCAD is committed to complying with the United States Copyright Act. Thus, SCAD has enacted this Copyright Compliance Policy to encourage and promote legitimate use of copyrighted materials by faculty members, staff members and students. SCAD expects all faculty members, staff members and students to comply with the Copyright Act and this policy. Compliance is particularly important with respect to digital technology.

What is copyright?
The Copyright Act protects "original works of authorship fixed in any tangible medium of expression," including:

  • Literary work, including text, e-mail, Web information and computer programs;
  • Musical work, including any accompanying words;
  • Dramatic work, including any accompanying music;
  • Pantomimes and choreographic work;
  • Architectural work.

Copyright protection is available to both published and unpublished work and applies regardless of the form of the work-print, audio, video or electronic format. Section 106 of the Copyright Act grants copyright owners the exclusive right to:

  • Reproduce the work (i.e., make copies of the work);
  • Prepare derivatives work (i.e., translate the work into another language, adapt a book into a screenplay);
  • Distribute the work (through sale, lease, rental or lending);
  • Perform the work publicly (through a digital audio transmission, etc.); and
  • Display the work publicly (through a pictorial, graphic, sculptural, motion picture, etc.).
  • The law no longer requires a copyright notice on the work, thus the presence or absence of such notice is insignificant as to whether a work is protected under copyright law.

Work that is not protected
The following types of work are not protected by copyright law and may be used freely by faculty, staff and students:

  • Work that lacks originality (i.e., logical, comprehensive compilations such as the phone book and unoriginal reprints of public domain work);
  • Work in the public domain;
  • Facts; and
  • Ideas, processes, methods and systems described in copyrighted work.

Public domain refers to work that is available for unrestricted copying by the public at large without prior permission. Material that resides in the public domain includes work where the copyright has expired; work that was created too early to have copyright protection (anything published prior to 1923); works by the federal government; and work donated to the public by authors or artists (i.e., freeware). All copyrighted work passes into the public domain upon the expiration of its term of protection. The numerous changes in the term of copyright duration have made it difficult to determine whether a work is currently in the public domain. Any work created since Jan. 1, 1978, is still protected. If a work is older than 1923, it is in the public domain. If a work was published before 1964 and the copyright owner did not obtain a copyright extension, it is also in the public domain. While materials published by the United States federal government fall into the realm of public domain, work created by state and local governments do not.

Use of copyrighted materials
Pursuant to the Copyright Act and this policy, faculty members, staff members and students shall "use" all or part of a copyrighted work only with the copyright owner's written permission, or if a legal exception applies (as discussed below). "Use" of a work includes copying, distributing, making derivative work, publicly displaying or publicly performing the work. Faculty members, staff and students who place copyrighted materials on any Web site (e.g., the SCAD Web site, a faculty- or student-sponsored Web site, a public Web site, a password-protected Web site, etc.) are responsible for compliance with the Copyright Act and this policy.

Violations
Any faculty member, staff member or student who violates the Copyright Act may be sued by the copyright holder and is subject to criminal (for willful violations) and civil (for both willful and ignorant violations) penalties. Ignorance is no excuse and the penalties are harsh. Thus, it is important that all faculty members, students and staff members become familiar with this policy and comply with the law.

Furthermore, if the college determines that any faculty member, staff member or student is in violation of this policy, such person shall be subject to disciplinary action by SCAD.

Exceptions to the Copyright Act
There are exceptions to many of the exclusive rights granted to copyright owners. For example, the first sale doctrine states that an individual who has purchased a legal copy of a work may then resell or lend that copy. Other statutory limitations include the fair use, performances and displays in face-to-face teaching, reproductions made by libraries, and the Technology, Education and Harmonization Act, all of which are discussed below.

Fair use
Section 107 of the Copyright Act (the Fair Use Statute) allows a person to copy limited amounts of copyrighted material without requiring prior permission. The right of fair use is specifically applicable to teaching, research and scholarship. However, its scope depends on the following four factors:

  • Purpose and character of the use (most importantly whether it is for commercial gain or for nonprofit educational purposes);
  • Nature of the copyrighted work (how creative or noncreative is the work);
  • Amount and substantiality of the portion used in relation to the work as a whole; and
  • Effect of the use upon the potential market for or value of the copyrighted work.

These factors must be weighed and balanced to determine whether use is "fair" or not. As a result, fair use is complicated and subject to differing interpretations. There are no specific rules that strictly define how much of a work is an acceptable amount to use.

  1. Purpose. Fair use favors nonprofit educational uses over commercial uses. However, copies used in education but made or sold at a monetary profit weigh against fair use. Furthermore, fair use is more likely when the copyrighted work is "transformed" into something new or of new utility, such as quotations incorporated into a paper, and pieces of a work mixed into a multimedia product for teaching or included in commentary or criticism of the original.
  2. Nature. This factor examines characteristics of the work being used. If the work is nonfiction (i.e., facts) and published, fair use is favored. However, fictional works and unpublished works weigh against fair use.
  3. Amount. Amount is measured both quantitatively and qualitatively. No exact measures of allowable quantity exist in the law. Quantity must be evaluated relative to the length of the entire original and in light of the amount needed to serve a proper objective. Copying of an entire work usually weighs heavily against fair use. However, if a small portion takes "the heart of the work," copying of that small portion weighs against fair use as well.
  4. Effect. This factor asks, "If the use were widespread, would the copyright owner be losing money?" If your purpose is research or scholarship, market effect may be difficult to prove. If your purpose is commercial, then adverse market effect is often presumed. Furthermore, occasional quotations or photocopies may have no adverse market effects, but reproductions of software and videotapes can weigh against fair use. With respect to classroom use, this factor is considered the most important in determining fair use. If copying potentially endangers or undermines the market value of the copyrighted work, this factor weighs against fair use. For example, a teacher cannot copy and distribute an entire textbook to students in a classroom.

Performances and displays in face-to-face teaching
Section 110(1) of the Copyright Act provides faculty members with a separate set of rights in addition to fair use, specially the right to display (show) and perform (show or play) others' work in the classroom. However, this exception only applies in face-to-face teaching, not distance education. Thus, a teacher may show or perform any work (including still images, music of every kind and movies) related to the curriculum, regardless of the medium, face-to-face in the classroom. There are no limits and no permission is required.

Library exceptions
Section 108 of the Copyright Act authorizes libraries to archive lost, stolen, damaged or deteriorating work; make copies for library patrons; and make copies for interlibrary loan. For information regarding library reserves, refer to the SCAD Library Reserves Policy.

TEACH Act — eLearning
The TEACH Act allows faculty members at accredited educational institutions to use work that is protected by copyright in distance education (including on Web sites and by other digital means) without first obtaining the owner's permission. The TEACH Act updates the Copyright Act allowing online instructors to electronically transmit "limited and reasonable portions" of copyrighted work. The TEACH Act, however, is not as broad as the face-to-face rights provided in Section 110(1). The TEACH Act sets forth specific requirements and limitations that must be adhered to when digitally displaying or performing copyrighted work in connection with distance education. These requirements are set forth in the SCAD eLearning and TEACH Act Policy.

Permission
When in doubt as to whether a work is not protected (i.e., in the public domain) or an exception applies (i.e., fair use or the TEACH Act), faculty members, staff members and students should request written permission from the copyright owner before using the work. Furthermore if an exception does not apply and the work is protected, then faculty, staff and students must obtain permission before using the work. Permission may be obtained through the Copyright Clearance Center. The Copyright Clearance Center manages copyright permissions for a large number of text publications, but not for audio, video or other multimedia works. Visit the Copyright Clearance Center Web site at copyright.com.

Guidelines for compliance
For specific examples of uses of copyrighted material that are permissible, refer to the SCAD Copyright Compliance Guidelines.