Rutgers University Copyright Guidelines for Online and Hybrid Teaching

Transcription

1 Rutgers University Cpyright Guidelines fr Online and Hybrid Teaching Prepared by Janice T. Pilch Cpyright and Licensing Librarian Rutgers University Libraries January 2014 These guidelines have been prepared fr the use f instructrs university-wide. When using cpyrighted wrks fr nline and hybrid teaching, including fr an Online prgram, instructrs have a number f access ptins and a number f legal ptins. Certain cnsideratins discussed belw are intended t guide instructrs in making cpyrighted material available t students. Access ptins: Displaying r perfrming wrks in the physical classrm Displaying r perfrming wrks (text, images, musical, audi, and audivisual wrks) during a class sessin in face-t-face teaching is permitted, prvided that audivisual wrks displayed r perfrmed in the physical classrm have been lawfully made. Under the exceptin in Sectin 110(1), in a classrm r similar place devted t instructin in a nnprfit educatinal institutin, it is permissible t display r perfrm any wrk, even in its entirety, prvided that when using a mtin picture r ther audivisual wrk, the cpy used has been lawfully made. Pirated versins must nt be used. This exceptin nly cvers physical classrm use fr viewing and listening. It des nt cver reprductin and distributin f materials as handuts r assignments, use in curse management systems, r e-reserve. Fr streaming f audivisual wrks ther than in physical classrm, please see sectin n Streaming audivisual wrks belw. Prviding electrnic access f curse materials t students Fr reprducing, distributing, displaying, r perfrming wrks (text, images, musical, audi and audivisual wrks) electrnically as reading assignments, illustratins, r surce materials, there are a number f ptins. T link t, rather than cpy, wrks available nline, such as t cntent lawfully psted n YuTube. This is the recmmended means f making material available t students because it is easy and invlves the least amunt f legal r budgetary cncern. Links shuld nly be made t lawful material. T place electrnic versins f the material in the curse management system. This invlves a license review r a fair use assessment, r bth, by the instructr. T place the material with Rutgers University Bkstre fr cmpilatin as a digital cursepack. The Bkstre will btain cpyright permissins and the csts will be passed n t the students in the cst f the cursepack, T place electrnic versins f the material in the Rutgers University Libraries e-reserve system, This invlves a license review r a fair use assessment, r bth, by the instructr. In the case f audi and audivisual wrks, t make use f the Rutgers University Libraries Streaming Media Clips fr Reserves Service r Clips frm Analg Tapes r DVDs Service, fr cmpilatins f shrt clips, 1

2 Legal ptins: T use wrks and resurces licensed by Rutgers University Libraries, fr which the licenses (typically viewable as terms and cnditins r terms f use ) permit such use. T use ther Internet resurces fr which the nline licenses (typically viewable as terms and cnditins r terms f use n websites) permit the use. T use pen access materials that have been made available under terms that permit the intended educatinal use. T use ne s wn cntent, fr which cpyright was retained by the instructr r fr which the instructr has retained rights fr educatinal uses even if cpyright was transferred t anther entity. Fr nn-licensed wrks, t make an assessment as t whether the fair use limitatin in cpyright law might justify the use withut prir permissin r payment f a ryalty. If the use exceeds what wuld be cnsidered fair, the instructr shuld either use alternate material r btain permissin. T btain permissin frm the cpyright hlder if the use is nt permitted under a license r if the use exceeds what wuld be cnsidered fair (payment might be required, with csts cvered by department r instructr). T btain permissin using the Cpyright Clearance Center Get Permissin Service which secures cpyright permissins fr a fee (csts cvered by department r instructr), T rder a digital cursepack frm Rutgers University Bkstre that will btain permissins using the Cpyright Clearance Center (csts passed n t students in the cst f the cursepack). Additinally, an ptin is t use public dmain materials that d nt implicate the rights f cpyright hlders. Putting it all tgether: cnsideratins in selecting material and making it available In selecting cpyrighted material fr use in curses, the fllwing cnsideratins shuld guide instructrs decisins. A primary cnsideratin is whether the material being used is subject t a license r is nt subject t a license. Special rules fr streaming audivisual wrks are discussed belw. Cnsideratin N. 1: Whether the wrk being used is subject t a license Licensed wrks Mst material fund nline is licensed and is gverned by the terms and cnditins f the license, a frm f cntract. Because cntract law prevails ver cpyright law, the terms and cnditins f the license prevail ver a direct applicatin f cpyright law. If the wrk is in electrnic frmat in a licensed database made available by Rutgers University Libraries, the terms and cnditins f the end user license agreement apply. The best ptin is link t the wrk thrugh a permanent URL rather than cpy it t a secndary access mechanism (curse management system r e-reserve). Students with NETIDs may access the wrk directly frm the RUL database. If the instructr wishes t cpy/dwnlad the wrk and t place it in a secndary access mechanism, the instructr needs t read the end user license agreement, typically readable by clicking n Terms and Cnditins r Terms f Use r Cpyright n the database site. Read the terms and cnditins, r terms f use, carefully. They will indicate whether the wrk may be reprduced r dwnladed fr educatinal purpses and whether the licensr permits use f the material thrugh secndary access mechanisms. Please cmply with the nline license. If the wrk is therwise available nline, it is likely gverned by a mass-market nline license. Terms and cnditins f the nline license agreement apply. 2

3 The best ptin is link t the wrk rather than cpy it t a secndary access mechanism (curse management system r e-reserve). If the instructr wishes t cpy/dwnlad the wrk and t place it in a secndary access mechanism, the nline license is typically readable by clicking n Terms and Cnditins r Terms f Use r Cpyright n the website. Read the terms and cnditins, r terms f use, carefully. They will indicate whether the wrk may be reprduced r dwnladed fr educatinal purpses and whether the licensr permits use f the material thrugh secndary access mechanisms. Please cmply with the nline license. In bth cases, if a reference t fair use in the terms and cnditins indicates that the license agreement has incrprated the fair use limitatin, the instructr shuld assess the fairness f the use as is dne with unlicensed material, as explained belw. Unlicensed wrks Print material and ther analg material generally is nt made available under a license, and thus is generally subject directly t cpyright law. Cnsider the legal and access ptins abve fr unlicensed material. In assessing whether fair use may apply t use f wrks, the fllwing cnsideratins will be helpful. Cnsideratin N. 2: The fair use limitatin fr unlicensed wrks Limitatins and exceptins in cpyright law prvide fr a balance between the rights granted t authrs and cpyright hlders, n ne side, and thse f peple seeking t use their wrks, n the ther. A number f limitatins and exceptins in U.S. law enable uses f cpyrighted wrks withut prir permissin r payment f a ryalty. One f these is fair use. The fair use limitatin in Sectin 107 f the cpyright law is perhaps the mst imprtant exceptin fr educatinal institutins. It is als the mst difficult t understand. Unlike ther exceptins, it des nt prvide specific instructins. It is a general exceptin intended t prvide flexibility fr interpretatin f the law, by a curt, in specific cases if a use is challenged by a rightshlder. The key t understanding fair use is in understanding that it des nt define up frnt what exact uses may be made f a wrk and what uses wuld be infringing. The law des nt state exactly the amunts r extent f third party wrks that may be used in keeping with fair use. The fairness f uses is determined by judges in curt actins. Outside f litigatin, the fairness f uses may nly be anticipated by faculty, students, and staff by using reasnable judgment. The fair use limitatin establishes that certain uses may be fund nt t be infringing, fr purpses including criticism, cmment, news reprting, teaching (including multiple cpies fr classrm use), schlarship, and research, based n fur factrs. The fur factrs are: Purpse and character f the use Nature f the cpyrighted wrk Amunt and substantiality f the prtin used in relatin t the wrk as a whle Effect f the use upn the ptential market fr r value f the wrk Fair use assessments are made n a case-by-case, wrk-by-wrk basis because the circumstances surrunding each wrk and its use are different in each situatin. Weighing fr fair use are situatins when the Purpse invlves educatin, research, criticism, cmment, news reprting, transfrmative use, pardy, nn-cmmercial use. Nature f the wrk is published, factual, infrmatinal, nnfictinal. Amunt used is a small prtin, a small quantity, r part that is nt the heart f the wrk. 3

4 Effect n the market r ptential market fr the wrk is nt t interfere with the market, replace a sale, harming the interests f the rightshlder. Weighing against fair use are situatins when the Purpse invlves cmmercial use, entertainment, nn-transfrmative use. Nature f the wrk is unpublished r highly creative. Amunt used is a large prtin, large quantity, r the heart f the wrk. Effect n the market r ptential market fr the wrk is t interfere with the market, replace a sale, harming the interests f the rightshlder. One f the mst helpful resurces fr understanding fair use is the Fair Use checklist created by nted cpyright attrney Kenneth Crews, The sliding scale f fair use Restricting access f a wrk t the specific needs f the teaching purpse makes the fair use assessment strnger. Less is ften mre. The fllwing measures are imprtant when preparing nline and hybrid curses. This sectin des nt apply at Rutgers t streaming audivisual wrks. Limit the amunt used. Reasnable, limited, educatinal, schlarly uses f materials weigh tward fair use. Using an amunt apprpriate t the purpse and tied t critical analysis will weigh tward fair use. Using excessive amunts f a wrk beynd what is needed fr the educatinal purpse may weigh against fair use. It is smetimes difficult t justify fair use fr large prtins f wrks r fr entire wrks. Fr example, Rutgers University Libraries des nt hld that fair use applies t entire bks r t entire jurnal issues in e-reserve. Fr graphical wrks (phtgraphs, illustratins, images, cartns) typically the whle wrk is needed. Using lw reslutin cpies and thumbnails is a way f limiting the amunt used. Prvide access nly t students in class, and cnsider the size f the class. A basic rule in making curse materials available t students is t limit access t the enrlled students. There is n need t place curse materials n the pen Internet. Please d nt pst curse materials n pen websites unless yu are the cpyright hlder. The size f the class may be an additinal factr; there is a difference between using materials fr a class f five and a class f five hundred. Fr example, it is widely accepted that fr massive pen nline curses (MOOCs) that enrll large numbers f students, use f cpyrighted wrks is rarely justified as a fair use. Prvide access nly fr the term f the class. Please ensure that curse materials are disabled at the end f a class term. Repeated, extended use f the same wrks frm semester t semester may alter the fair use assessment and require recnsideratin as an activity justified under fair use. It is imprtant t cnsider frequency and extent f use. This factr f aggregatin is an imprtant cnsideratin fr Online curses that extend beynd a single semester and invlve re-use f the same curse material ver time. Use f the same phtcpied r scanned material in multiple curses r fr lng-term use triggers a mre careful assessment and may require permissin. Discurage further distributin. Please discurage students frm further distributin f curse materials beynd the class. This may be accmplished by infrming students abut cpyright law and inserting this ntice n the class syllabus and n cpies f the curse materials: This material is subject t the cpyright law f the United States (Title 17 U.S. Cde) and is fr the use f students in [Curse 101] nly. Further reprductin r distributin is prhibited. Avid using material in a way that substitutes fr textbks r cnsumable wrkbks, r fr wrks marketed fr nline educatin. When use f cpyrighted wrks directly cnflicts with an educatinal market, the use is far less likely t be cnsidered fair. Please avid using material t substitute fr textbks r cnsumable wrkbks, and avid using materials that were prduced r marketed as educatinal prducts primarily fr digital instructinal activities. 4

5 Assess the availability thrugh purchase r licensing. When cpyrighted materials are in still in print and being marketed, and/r when a licensing mechanism is available fr use f the cpyrighted wrk, the fair use argument may be weakened because the use cnflicts with a market fr the wrk. Cnsider the fllwing additinal factrs in the assessment: whether the wrk is available fr purchase, and whether the wrk is available thrugh a license. The date f publicatin and the publisher may als be cnsidered. Recent wrks by cmmercial publishers r cntent prducers raise mre questins, fr example, than lder wrks that are n lnger cmmercially available r available under a license, and fr which rightshlders are n lnger in business. Always prvide attributin. When reprducing materials fr use in the curse management system r thrugh e-reserves, please prvide a full citatin n the cpy. Use wrks lawfully. Make a gd faith effrt t ensure that wrks used in nline and hybrid curses are lawfully made, lawfully acquired, and/ r lawfully made publicly available. Cnsideratin N. 3: When the license des nt permit the use r the use exceeds a fairness assessment The Rutgers University Cpyright Plicy encurages members f the university cmmunity t be respnsible users f cpyrighted wrks and t take full advantage f fair use rights in their research, teaching, and service activities, But if the use is nt permitted under a license r if it the use exceeds what wuld be cnsidered fair, the instructr shuld cnsider either using alternate material r btaining permissin fr the use. Cnsideratin N. 4: Streaming audivisual wrks Rutgers guidelines n streaming audivisual wrks are based n legal cunsel's interpretatin and pinin f current law. Generally streaming f audivisual wrk in nline and hybrid curses is permissible if: The audivisual wrk is in the public dmain The cpyright hlder has given permissin The instructr is the rightshlder The audivisual material is licensed fr use and license clearly allws fr the use Online terms and cnditins allw fr the use and the material has been lawfully made and lawfully made publicly available Fr ther situatins, Rutgers des nt authrize streaming entire audivisual wrks in the curse management system, n e-reserves, n websites, r elsewhere withut permissin r a public perfrmance/ streaming license. Csts fr such licenses, as with ther types f permissins, wuld need t be cvered by departments r instructrs. Other ptins are available t instructrs that are becming ppular natinwide as universities and clleges expand their nline and hybrid curses: Students use persnal nline streaming services. Instructrs may suggest that students view films n Amazn Prime r Netflix as ne-time views r thrugh persnal subscriptins. This is an inexpensive ptin, cnsidered t be the equivalent f purchasing an inexpensive textbk. Fr audi wrks, a similar array f nline music streaming services is als available as an inexpensive alternative. Rutgers University Libraries ffers services fr creating cmpilatins f shrt audi and film clips fr use in line and hybrid teaching. See Streaming Media Clips fr Reserves Service Clips frm Analg Tapes r DVDs Service Link t lawful cntent n YuTube. YuTube is a surce bth f cntent that has been lawfully made and made publicly available and f unlawful cntent. When using YuTube 5

6 fr curses, instructrs shuld make a gd faith effrt and a cmmn sense judgment t determine that cntent has been lawfully made and psted. In additin, because the YuTube nline license restricts uses t individuals fr infrmatin and persnal use, it is recmmended that instructrs link t YuTube rather than cpying vides t the curse management system. 6