Academic and Research Affairs
Use of Copyrighted Materials for Educational and Research Purposes (B-53)
OFFICE OF THE PRESIDENT
EXECUTIVE MEMORANDUM No. B-53
July 10, 2000
To: Vice Presidents, Chancellors, Deans, Directors, and Heads of Schools, Divisions, Departments and Offices
Re: Use of Copyrighted Materials for Educational and Research Purposes
This memorandum is written to bring University policy up to date with changes in U.S. Copyright Law. It is intended to bring to your attention the general applicability of copyright law as it relates to the responsibilities and activities of all faculty, staff, and other employees at Purdue University. This Memorandum applies to all campuses of Purdue University.
The following policies are effective immediately and supersede, in whole or in part, any prior inconsistent verbal or written policies of the University including, but not limited to, Executive Memorandum No. B-53, dated November 1, 1977.
In recognition that copyright law will continue to evolve in response to environmental stimuli that include technological advances, ongoing discussions among users and producers of intellectual property, and the generation of case law, this policy delineates the means by which the university community will responsibly approach the use of copyrighted materials.
Purdue University holds that the creation, discovery and dissemination of knowledge are central to the achievement of the University's mission. The University's community shares both an interest in the protection of intellectual property as a creator of such property and in the fair use of copyrighted works in the daily pursuit of research, teaching, learning and public service.
- Guided by its mission of teaching, research, and service, Purdue University is committed to respect for intellectual property rights and the appropriate use of copyrighted materials, in any medium, consistent with the spirit and the letter of the U.S. Copyright Law.
- It is imperative that Purdue faculty and staff, as they encounter the work of others, consider and understand the relationship between copyright and their use of existing and emerging technologies.
- The rapidly changing technological and legal environments of higher education require a systematic and ongoing program of copyright education, awareness, and decision support.
Overview of Copyright and Fair Use:
Copyright protection is provided by the laws of the United States (Title 17, U.S. Code) to the authors of "original works of authorship" and extends automatically to any such work that is "fixed" in a tangible form of expression. This fixation need not be directly perceptible as long as it can be communicated with the aid of a machine or device. Since March 1, 1989, no notice of copyright is required. Copyright protection applies to a variety of creative works, both published and unpublished. Examples include printed materials, sound recordings, video recordings, visual artworks, computer software, Web pages, and multimedia works. Copyrighted works are protected irrespective of the medium in which they are created or reproduced. Digital works and works transformed into a digital format are extended copyright protection.
A copyright owner is granted certain exclusive rights of reproduction, preparation of derivative works, distribution, display, and performance. However, these rights are not unlimited in scope. Certain provisions of the law establish limitations on these rights. The Fair Use exemption (Section 107, U.S. Copyright Law) permits limited reproduction of copyrighted works for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, without the permission of the copyright owner. However, nonprofit educational use does not automatically establish a condition of fair use, nor does the law provide clear directives for individual situations. Instead, a determination of fair use must be made on a case-by-case basis, considering the following factors:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
Thoughtful analysis of these four factors in relation to the desired use is necessary in order to arrive at a "good faith" determination of fair use in a specific situation. Penalties for infringement are significant. However, liability for monetary damages is reduced, in cases of nonprofit educational use, when it can be demonstrated that an evaluation of these four factors resulted in the reasonable belief that the use is fair use.
Guidelines for some common situations have been developed by groups of interested private parties. These guidelines are not the law, but rather attempts to clarify the meaning of fair use based on the endorsers' consensus on certain conditions under which fair use generally applies. Guidelines are expressed as minimum applications of fair use. Uses that fall within or exceed such guidelines may or may not be fair use, subject to the analysis of the four factors. Purdue University does not endorse such guidelines, but rather looks to the law itself as the standard to which one must adhere in advancing teaching and research.
The fair use exemption allows flexibility in responding to changing needs and circumstances. Court rulings, past and future, will continue to shape the way the fair use exemption is exercised. While few cases to date have had direct application to institutions of higher education, the rulings do provide examples of how the courts have applied the four factors to specific situations.
University personnel are directed to the Purdue University Copyright Office's website for additional information and guidance on copyright law.
Not all intellectual property is subject to copyright protection. Patents and trademarks are covered by other legislation. Licensed resources may have specific contractual terms, other than or in addition to copyright protection, which affect their use and corresponding definitions of infringing actions. Works in the public domain may be used freely. Examples of such works are most U.S. government documents, works on which copyright has expired, and works which authors specifically designate as in the public domain. Free access to a work, as on an Internet site, does not automatically place it in the public domain.
Recognizing the need for managing the growing complexity of copyright compliance issues, the University
- has established a University copyright office (the "Office") to facilitate institutional practices that support the University's research, education and service; this Office will provide guidance regarding fair use and other copyright compliance issues and will advise the President on issues regarding the application of copyright law by University faculty and staff, and
- will implement a systematic, ongoing program of copyright education and awareness suited to the rapidly changing technological and legal environments of higher education.
University faculty and staff desiring to use copyrighted materials are responsible for ensuring compliance with applicable copyright law, including making an initial good faith determination as to whether or not the desired use falls within the fair use exemption. In the event of genuine doubt regarding the application of copyright law, University faculty and staff should consult with the Office regarding such matters. The University does not assume legal responsibility for any independent application of copyright principles made by University faculty or staff that are not in good faith or that do not otherwise comply with this Memorandum or the guidance provided by or determinations made by the Office. Permissions must be obtained in all instances where the employee determines in good faith that the desired use exceeds fair use or other applicable limitations on the rights of copyright owners.
If, notwithstanding an employee's initial good faith determination that a proposed use constitutes fair use under applicable copyright law, the employee has reason to believe that the copyright owner will contend that the proposed use exceeds fair use, then, prior to such use or promptly upon learning of the owner's contention, the employee shall notify the Office, and the Office shall make a determination regarding the proposed use. An employee shall likewise notify the Office if he or she has any reason to believe that there exists any dispute relating to the use or proposed use of copyrighted material, and the Office shall make a determination regarding the dispute. The Office shall promptly consider all disputed matters relating to use of copyrighted materials by University faculty or staff and shall make any determinations required hereunder within a reasonable time.
Students are expected to individually, within the context of the Student Honor Code and other applicable University Regulations, act responsibly and ethically by applying fair use principles to the completion of their activities and projects. The University does not assume legal responsibility for violations of applicable copyright law by students who are not employees of the University. Students who are employees of the University and who are acting in their capacity as employees, are subject to all provisions of this Memorandum relating to faculty and staff.
Steven C. Beering