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Copyright

A copyright resource page for faculty, staff, students, and the general community at the University of South Dakota.

Copyright in the United States is governed by the U.S. Copyright Act (1976). The Copyright Act allows certain provisions for academic use of copyrighted materials, and these provisions are also addressed in the TEACH Act (2002). Faculty, staff, and students at the University of South Dakota are also subject to Board of Regents Policies regarding copyright. The information on this page is not intended to constitute exact descriptions of U.S. law and does not ensure legal protection under fair use or other provisions.

Board of Regents Policies

3:4.7 - Student Code of Conduct

South Dakota Board of Regents Policy on Student Code of Conduct states, in section 3:4.7, that "Unauthorized use or abuse of technology" is in violation of the student code of conduct.  Please refer to the policy for a non-exhaustive list of examples.

 

4:34 - Intellectual Property

South Dakota Board of Regents Policy on Intellectual Property "sets forth the principles and procedures through which the Board balances the rights of creators, the interests of the public and its obligations under federal law in the management of intellectual properties created by faculty members, other employees and students contributing to sponsored or faculty-directed research."

 

7:1 - Acceptable Use of Information Technology Systems

Additional information on the South Dakota Board of Regents policy can be found in section 7:1, which covers the "Acceptable Use of Information Technology Systems."

 

Office of Research & Sponsored Programs

For additional information on personal ownership of works, please visit the Copyright page of the Office of Research & Sponsored Programs site.

 

Research & Sponsored Programs: Intellectual Property (IP) Ownership (login required)

For information regarding IP ownership as an employee of the University of South Dakota.

U.S. Copyright Act Overview

red lineThe key provisions of the Copyright Act that govern the reproduction and distribution of copyrighted works by academic libraries in the United States are Sections 107 and 108. Section 107 of the Copyright Act sets forth the doctrine of fair use. Section 108 of the Copyright Act governs the reproduction and distribution of copyrighted works by libraries and archives for purposes of: preservation and security; the replacement of damaged, lost or stolen works, or works with obsolete formats; providing users with a copy of a work for their private study, scholarship, or research; or distribution to users through interlibrary loan.

Importantly, the rights set forth in Section 108 do not preclude the general right of fair use. Depending on the circumstances, fair use under Section 107 may permit more or less copying and distribution than is provided under Section 108. The boxes below provide some background on Sections 107 and 108 of the Copyright Act as they relate to academic libraries.

Section 107

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There is a common belief in academia that there is such a thing as "academic fair use."  Although such an exemption was considered before enactment of the Copyright Act of 1976, legislators concluded that "a specific exemption freeing certain reproductions of copyrighted works for educational and scholarly purposes from copyright control [was] not justified." H.R. Rep. No. 94-1476, at 66-67 (1976). At the same time, legislators recognized the "need for greater certainty and protection for teachers" in relation to their reproduction of copyrighted works for use in the classroom. Id

To that end, representatives of educational institutions and organizations advocating the rights of authors and publishers formed an Ad Hoc Committee and submitted its Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions with Respect to Books and Periodicals (U.S Copyright Office, 2014) to the House Committee, which set forth the minimum, but not the maximum, standards of fair use for the reproduction of books and periodicals in the academic setting.

These safe harbor provisions are not law nor regulation and have not been adopted by any court.  The safe harbor provisions of the Ad Hoc Committee Guidelines should not substitute for a reasoned fair use analysis based on the context of a proposed use of a copyrighted work.

Section 108

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Section 108 of the U.S. Copyright Act governs the reproduction and distribution of certain copyrighted works by libraries and archives for purposes of: preservation and security; the replacement of damaged, lost or stolen works, or works with obsolete formats; providing users with a copy of a work for their private study, scholarship, or research; or distribution to users through interlibrary loan.

Libraries and Archives Entitled to the Rights Afforded Under Section 108

The rights of reproduction and distribution set forth in Section 108 are afforded to libraries or archives whose collections are either open to the public or are available not only to researchers affiliated with the library or archives. Section 108(a). The reproduction and distribution of copyrighted material by such libraries and archives must be made without any purpose of commercial advantage. Id.  All copies made and distributed by such libraries and archives must include a notice of copyright.

Works Excluded from Section 108

Subsection (h) of Section 108 provides that the rights of reproduction and distribution do not apply to musical works, pictorial, graphic or sculptural works, or motion pictures or other audiovisual works other than audiovisual works dealing with news, unless reproduction is necessary for archival purposes or for replacement purposes.

While subsection (h) generally moves musical, graphic and audiovisual works from the safe harbor provisions of Section 108, the doctrine of fair use remains fully applicable to the reproduction of such works for legitimate scholarly or research purposes. Section 108(f)(4).

Fair Use

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U.S. Copyright Law provides for the fair use of a copyrighted work, including criticism, comment, news reporting, teaching, scholarship, and research.  Fair use is the fundamental basis for using primary sources, including unpublished materials, in research and creative activity.  Fair use is the basis for individuals freely incorporating sources, without seeking permission from the copyright holder into works.

Oftentimes, fair use covers using selections of copyrighted material in the classroom for educational purposes.  There are four factors to consider when using selections of copyrighted material:

  1. Purpose and character of the use (commercial use or nonprofit/educational use)
  2. Nature of the copyrighted work, i.e. fiction or non-fiction, published or unpublished
  3. Amount and substantiality of the portion of the work used in relation to the work as a whole
  4. Effect of the use upon the potential market for or value of the copyrighted work

Fair Use Checklists

When making decisions about whether your use is a "fair use", please examine a fair use checklist. The checklists provide a systematic method for working through the four principles of fair use for a copyrighted work. There are many examples of fair use checklists available online. The University Libraries Course Reserves office tends to use the Columbia University Libraries list, created by Kenneth D. Crews (formerly of Columbia University) and Dwayne K. Buttler (University of Louisville) under the Creative Commons license.

Fair Use Index

A Fair Use Index is available through the U.S. Copyright Office.  This Index can be searched by category (e.g., literary, music, artistic, etc.) and type (e.g., education, scholarship, parody, research, etc.).  The Index also tracks court decisions at various court levels.  This database is a helpful resource on fair use.

TEACH Act

red lineWith the increase of online and distance education, there has been a need to address how materials are used in the classroom by both instructors and students. The Technology, Education, and Copyright Harmonization (TEACH) Act was passed in 2002. It updates current copyright law to accommodate the new teaching environments that instructors are using to deliver education at a distance or in virtual environments.

Summary

  • The purpose of the act is to address the use of course materials for online and distance courses
  • The act does not attempt to address the uses of supplementary material used solely by students
  • Materials used in online and distance education classes must be integrated into the instruction and used interactively by the instructor
  • In general, as with primary copyright law, only portions of a work may be used
  • The integration and use of materials in the class should not be done in such a way as to circumvent the purchase of materials by students
  • Fair Use guidelines still apply

TEACH Act Checklist

The requirements for applying the TEACH Act are fairly extensive. See the TEACH Basic Checklist from the University of Texas.

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