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Copyright and Fair Use: Copyright (for Faculty)

Information on copyright and fair use exemptions.

Copyright (for Faculty)

Information on the Teach Act below

First, a note about copyright law and fair use:

There is an exceptional amount of gray area in copyright law. The courts have consistently refused to absolutely define Fair Use, and the law itself is vague. Much of what follows is drawn from court precedent. The unfortunate result of this is that there is often a tension between an administration's responsibility to reduce legal (and economic) risk, and a scholar's responsibility to share information freely. Fortunately, the Fair Use provision specifically covers teaching, scholarship, and academic research; so much of your work in those areas should not be hindered by copyright law.

Is the work I do while an employee of the University considered "work for hire?"

The short answer for faculty is "usually, no." Here's the longer answer: This is one of those gray areas in copyright law. Typically, when you are clocked in and produce something the copyright belongs to the employer. So, if you write a procedures manual while working for Three Initial Company (TIC) they own the copyright. This first became an issue for faculty when scientists working at a research university patented their work and made lots of money from it. Did the scientist own the patent or did the university? There has also been conflict over research publications, syllabi, and course development. Most scholarly and research work done by faculty is not considered work for hire. Courses created by a professor are usually not considered works-for-hire. However, in instances when a University directs a professor to create a course dealing with a specific subject, that work may sometimes be considered a work-for-hire. The tradition has been that faculty owns whatever creative works they develop. However, with the profound changes occurring in post-secondary education, some Universities are more forcefully asserting their rights to own materials developed for new courses. More information about intellectual property ownership at the University of Tampa for faculty can be found in chapter six, section eleven of the Faculty Handbook.

Do the students own the copyright of their work?

Yes. As long as the work created is normally covered by copyright law.

Do I have to get the copyright holder's permission for everything I want the students to read for class?

No. Fair Use exemptions allow you to use short stories, novel excerpts, essays, poetry, research articles, popular articles, etc. for the purposes of teaching and critique. What you cannot do is copy an entire book and give it to the students. Also, you can only make enough copies for the students and no more. If you use a course packet service then you must get copyright clearance since the company making the course packets is profiting from the work. Digitizing the material and putting it into a restricted online space like Blackboard is OK, and it explicitly covered in the TEACH Act of 2002.

How do I know how much is too much to copy?

Here are some general rules of thumb from the Stanford Copyright & Fair Use page:

Examples of what can be copied and distributed in class include:

  • a complete poem if less than 250 words or an excerpt of not more than 250 words from a longer poem
  • a complete article, story, or essay if less than 2,500 words or an excerpt from any prose work of not more than 1,000 words or 10% of the work, whichever is less; or
  • one chart, graph, diagram, drawing, cartoon, or picture per book or per periodical issue.

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 (for example, a magazine or newspaper) during one class term. As a general rule, a teacher has more freedom to copy from newspapers or other periodicals if the copying is related to current events.

Teachers may not photocopy workbooks, texts, standardized tests, or other materials that were created for educational use. The guidelines were not intended to allow teachers to usurp the profits of educational publishers.

What are the rules for compiling a coursepack?

If you have a company compile a coursepack to hand out in class all the material in the coursepack must go through copyright clearance, which means the copyright holder must be contacted and paid if they request a payment for the use of their material. There are fewer restrictions and more flexibility when you make the material available through a Learning Management System like Blackboard or Moodle.

What are the rules for a digital coursepack (i.e. making stuff available only on Blackboard)?

You don't have to get copyright clearance, but you must still adhere to the rules of thumb for using reasonable and limited portions. The material you are using must be accessible only to those in the class you are teaching. You may not post a textbook for everyone to use.

How do I get permission to re-use copyrighted material?

Check with the Copyright Clearance Center. The CCC is a not-for-profit U.S. company that provides collective copyright licensing services for corporate and academic users of copyrighted materials.

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Following is the pertinent excerpt from the Faculty Handbook ("the material contained in the Faculty Policies and Procedures Handbook is intended for use as a guide to the policies, procedures, and benefits in effect as of the date of issuance").

Intellectual Property Ownership:
1. Policy as to Staff. The University owns the Intellectual Property created by University staff within the scope of their employment by the University or with more than incidental use of University resources.

2. Policy as to Independent Contractors. It is the policy of the University to enter into written agreements with each of its independent contractors describing the Intellectual Property to be created, if any, prior to the independent contractor’s creation thereof. Unless expressly set forth in such an agreement to the contrary, the University alone owns all Intellectual Property created by independent contractors within the scope of their engagement by the University or with more than incidental use of University resources.

3. Policy as to Faculty. Ownership of Intellectual Property created by faculty, both full and part-time, vests in and remains with the creator(s) alone, and not the University, unless the Intellectual Property is a Commissioned Work (as defined in Section I.B.5 of this policy).

4. Policy as to Students. Ownership of Intellectual Property created by students vests in and remains with the student(s), unless the Intellectual Property:
a. Is a Commissioned Work (as defined in Section I.B.5 of this policy).
b. Is a part of a larger work that is a Commissioned Work;
c. Is created in the student’s capacity as a full- or part- time staff or independent contractor within the scope of his or her employment or engagement by the University; or
d. Is created through more than incidental use of University resources as part of a fellowship, assistantship, or stipend, except when the result of collaborative work or scholarship with faculty engaged in Non-Commissioned Work.

5. Commissioned Work Defined. As used in this policy, the term ―Commissioned Work‖ means Intellectual Property that:
a. Is requisitioned by the University pursuant to a written agreement with the creator(s) in the form attached to this policy as Attachment A, the ―Intellectual Property Ownership Agreement‖; and
b. Is supported by a direct allocation of Extra Consideration ((as defined in Section I.F) by or through the University to the creator(s) expressly in exchange for the requisitioned Intellectual Property.

6. Extra Consideration Defined. As used in this policy, the term “Extra Consideration” is defined to mean consideration (including extra pay, the allocation of extra resources, or any release time from normal duties) that is provided by the University to the creator(s) of Commissioned Works.

7. Outside Funding Exceptions. This policy shall not limit the University’s or any faculty member’s ability to meet any obligations for deliverables under any grant, sponsored research agreement, or other outside funding contract, which shall supersede this policy in all respects.

8. Negotiated Exceptions. This policy may be superseded as it applies to any person by written agreement entered into and duly executed by such person and an authorized representative of the University. For example, the creator of Intellectual Property that would normally be owned by the creator hereunder may elect to transfer ownership thereof to the University, pursuant to such terms as may be agreed to in writing by the creator and an authorized representative of the University. No such transfer may carry or create contingent liabilities or costs to the University without the University’s prior, informed consent thereto.

9. Rights Clearance. Responsibility for assuring that Intellectual Property does not infringe any third party proprietary rights and is otherwise free of liens and encumbrances rests fully with the owner(s) thereof as determined under this policy.

10. Registration. Responsibility for applying for and obtaining statutory registration or other legal protection for any Intellectual Property, including financial responsibility, rests fully with the owner(s) thereof as determined under this policy.

11. Authorized Use for Administrative Purposes. The University shall be permitted to use all Intellectual Property created hereunder for appropriate administrative purposes.

12. Limitations on Sale, Modification, and Distribution. The University may not sell, modify, or distribute for use to third parties any Intellectual Property without the prior written permission of the owner thereof (if other than the University), and only upon terms and conditions agreed to in advance.

13. Responsibility to Declare. When Intellectual Property is owned in whole or in part by the University pursuant hereto, the creator(s) thereof must make good faith efforts to maintain notes or records of his or her efforts to create such Intellectual Property, including the completion thereof, and must formally declare the same to their immediate supervisor (whether a college dean, senior administrator) in a timely manner.

14. Negotiations. Faculty, staff, and students affiliated with an academic unit shall communicate, negotiate, and execute a formal agreement involving any Commissioned Work with the appropriate academic dean, with review by the chief academic officer(s). The senior administrator for staff and non-faculty employees not affiliated with a specific academic unit shall serve the same role as that of academic dean.

TEACH Act

In 2002, the United States Congress passed the TEACH Act to clarify some of the copyright issues created by the advent of digital media. While educators welcomed these clarifications, copyright and fair use remains a complicated part of academic life.