Intellectual Property and Copyright Policies
ITAL Board Recommendation, March 2012
Background and Introduction
The “current” Colorado College copyright policy, as recorded in Section VIII of the policy section of the Faculty Handbook, was adopted sometime in the last century. It does not reflect changes in the law and it provides little guidance in the use of new formats and digital media. It does not address ownership of intellectual property by CC faculty, staff and students at all. The Information Technology and Library Board presents the following policy for the consideration of the faculty, staff, and administration. We based the draft on a guide commissioned and produced by the Oberlin Group of Libraries and the Consortium of Liberal Arts Colleges: Developing Copyright Policy: A Guide for Liberal Arts Colleges. (Kevin L. Smith, M.L.S., J.D. and William M. Cross, M.A., J.D. May 2010, published under a Creative Commons 3.0 license.) Tutt Library and Colorado College Information Management were sponsors of this project, and some of the text of the proposed Colorado College policy has been copied and/or adapted from this guide.
Colorado College Intellectual Property and Copyright Policy
In support of the core values of Colorado College, this policy encourages the creation and dissemination of creative and intellectual work by its members. It supports contributions to the world of ideas and civic discourse, while reaffirming the college’s commitment to respect intellectual property rights. This policy applies to all faculty (including those on temporary appointments), staff, and students.
Reasons for Policy
Reasons for an Intellectual Property Policy
To support of one of the core values of Colorado College, to honor the life of the mind.
Colorado College currently has no written policy governing the ownership of the intellectual and creative products of its faculty, staff and students. An intellectual property policy will support and reward creativity by clarifying ownership rights, protecting the College and its community from legal liability and ensuring a uniform and understandable policy for all to follow. In approving the proposed policy, the College will also affirm its institutional mission to create and share knowledge in the evolving open access environment.
Background: Section 101 of the Copyright Act, which defines “work for hire,” states the default rule that, for works prepared by an employee in the course and scope of employment, the employer is deemed the initial owner of the copyright in the work.
Faculty: In the case of traditional scholarly and creative works by faculty, most courts have been unwilling to enforce work for hire. The College has historically accorded faculty first rights in their own scholarship. Other types of work in which the College has an interest in continued use and protection of intellectual property rights, such as collaboratively created or shared course content, suggest that College rights should be clarified. New requirements by NSF and NIH for grant funded projects also demand clarity on ownership and sharing of the products of that work.
Staff: The community of Colorado College includes many staff whose work extends beyond the concept of work for hire. The college should define guidelines for work for hire over which it will assert ownership. Such guidelines should encourage and reward staff for their creative efforts and align with a broader college mission to encourage sharing of innovations and ideas generated within our community.
Students: As more and more works of students and the entire college community are “born digital”, it is important for the college to establish procedures for obtaining permissions from students for limited reproduction and access rights (e.g. student works such as theses to be “published” and archived on Digital CC.”)
Reasons for a policy for the use of copyrighted materials
1. To Demonstrate Respect for Laws and Intellectual Property
Like other liberal arts colleges, Colorado College should maintain the highest standards for ethical conduct; one reason for a copyright policy is to demonstrate respect for and compliance with intellectual property laws. Such respect should acknowledge both the legitimate claims of rights holders and the limitations and exceptions of the law that encourage sharing, dissemination and the creation of new knowledge. In addition, a policy helps avoid liability claims from third parties by ensuring that procedures are followed before copyrights works are reproduced or modified.
2. To Provide Certain “Safe Harbors” from Liability
A copyright policy will allow Colorado College to take advantage of certain “safe harbors” that are built into the Copyright Act. There are two provisions – designed to insulate the institution from copyright infringement liability in certain defined situations – that require an institutional copyright policy as one condition of their application:
- The TEACH Act, which amended section 110(2) to provide an exception for public performances and displays that are transmitted as part of mediated instruction, contains a general requirement that an institution availing itself of this exception must “institute policies regarding copyright, provide informational materials to faculty, students, and relevant staff members that accurately describe, and promote compliance with, the laws of the United States relating to copyright.”
- Section 512 of the law, added as part of the Digital Millennium Copyright Act (DMCA), also requires that the institution “provides to all users of its system or network informational materials that accurately describe, and promote compliance with, the laws of the United States relating to copyright,” as a requirement for protection from liability for infringing material that resides on its network, when the institution is acting merely as an Internet service provider.
3. To Define the Scope of Employment Duties
A copyright policy should reduce institutional liability by setting standards for the scope of individual duties of employment. In doing so, Colorado College will provide guidance for employees as they perform various work-related tasks. When an employee commits a tort (such as copyright infringement) while carrying out the normal duties of employment, the employer is usually also liable for the damages caused by that tort. Employer liability may be reduced or eliminated, however, if the employee acted outside the scope of their employment.
Because copyright law is complex and often requires the exercise of judgment, the college should provide instruction and guidance to employees, in addition to the formal policy.
Part I: Intellectual Property and Copyright Ownership
1. Creator Owns the Copyright
Individuals engaged in scholarly, pedagogical or creative efforts produce a great variety of copyrightable materials they may want to protect from unauthorized use. These include, for example, books, articles, monographs, bibliographies, lecture notes and handouts, musical compositions and recordings, artwork, photographs, films, audio visual works, and computer programs.
When a member of the faculty or staff or a student authors a copyrightable work, that individual will own the copyright in the work (and may voluntarily cede or license it to a publisher or distributor), unless the circumstances of sections B, C, or D apply. Even though the College may provide some support in the way of facilities, materials, equipment, or personnel, individual ownership of the copyright in such works is appropriate.
It is understood, however, that the individual will grant a perpetual, worldwide, royalty free license allowing the College to use, reproduce and modify any copyrighted work that originally was designed for the express purpose of making such work available to individuals other than, or in addition to, the creator for use in teaching, administration, or other College activities. Examples of such work include a computer program designed to improve an office procedure and developed by a faculty or staff member (not under the circumstances of sections B, C, or D), or curricular materials created by a faculty member (not under the circumstances of sections B, C, or D) to use in sections of a course that is taught by several department faculty. Such materials will be available to the College free of charge, even if the individual who wrote the program or curricular materials has left the College. In the case of works created by multiple authors, where one or more of the authors is unaffiliated with the College and not subject to this policy, it is the responsibility of the individual to ensure that such other authors are made aware of this policy and that they consent to the grant of the license to the College.
2. Rights Are Determined by Contract
Ownership of the copyrights in works created in the course of projects or programs funded by an external agency, for example, under a grant or similar arrangement, will be determined in accordance with the terms of agreement with the external party and applicable law. An agreement regarding copyright ownership must be signed by the College, the external agency, and the appropriate individuals before acceptance of outside funding.
Generally, students own the copyright in the works they create, including their contributions to collaborative projects, unless the circumstances of C or D apply or the student has signed a written agreement regarding copyright. Accordingly, faculty and staff are strongly encouraged to obtain a written agreement from each student before involving students in scholarly research or other projects that may result in works the faculty or staff would want to use or publish. In addition, if there is any question whether C or D will apply to works created by a student, a written agreement should be signed before the student begins work.
Faculty, staff and students are encouraged to engage in collaborative research and other collaborative projects. Because of the misunderstandings that may result when different individuals own rights in the results of a collaborative effort, a written agreement regarding copyright should be signed before beginning work.
3. College Owns the Copyright in Directed and Commissioned Works
The College will retain ownership of the copyright in works that are specifically directed or commissioned by the College or produced by an individual (or group of individuals) as a specific job requirement. Examples of works in this category are articles for the alumni magazine or other College publications written by staff members, or computer software developed by technical staff.
This category does not include materials created by faculty in connection with their teaching, research, or other scholarly activities, even though faculty are expected to teach and engage in scholarly activities as part of their job, unless the works are specifically directed or commissioned by the College, as in the example of a faculty member on special assignment to write a history of the College while receiving a full salary. This category also does not include materials created by the staff outside the scope of their employment.
On occasion, the College may grant its copyright to one or more individuals or may agree to joint ownership of the copyright. If an individual wishes to own the copyright in a work that falls into this category, he or she should raise the issue in writing before undertaking the work. The arrangement on which the individual and the College agree must be documented in writing. If no such writing exists, the general rule of this section will be deemed to apply.
The College shall affirm its commitment to the open sharing of the creative and innovative work of college staff through its application of ownership rights. Where privacy, security or confidentiality issues do not apply, departments may decide to share works and grant permission for reproduction for other not for profit uses. Examples of such materials include reports, policies, training programs, and open access software.
4. College Owns Copyright in Administrative Works
The College will retain ownership of the copyright in works created in the course of an administrative assignment of the College, such as, internal policies and procedures, internal studies and plans, or a report for a university committee.
5. The College supports the concept of open access to scholarly work and encourages faculty, students, and staff to share their intellectual property. Methods for sharing include (but are not limited to) the following:
Contribute work to appropriate open access archives, including Digital CC or disciplinary open archives.
When signing publication agreements, negotiate to retain certain distribution rights.
For example, the SPARC Author Addendum http://www.arl.org/sparc/author/addendum.shtml is a legal instrument that authors may use to modify their publisher agreements, enabling them to keep selected key rights to their articles, such as: distributing copies in the course of teaching and research, posting the article on a personal or institutional Web site, or creating derivative works.
6. Use a Creative Commons license to retain copyright but freely allow some kinds of use of your property. http://creativecommons.org/licenses/
7. Recorded Events
A release form giving the college permission to record on-campus speakers and other events is requested by audio visual services. This release form gives the college the right to copy and use the recording for any purpose.
8. Recorded Course sessions
Specific class sessions may be recorded at the request of a faculty member. In this case, students should be notified in advance that the class will be recorded.
Part II. Use of Copyrighted Works for Education and Research
As an institution devoted to the creation, discovery, and dissemination of knowledge, Colorado College is committed to complying with all applicable laws regarding intellectual property. That commitment includes the full exercise of the rights accorded to those who desire to use copyrighted works for educational purposes under the "fair use" provisions of federal copyright law, 17 U.S.C. Section 107, DMCA and TEACH Act
Colorado College expects all faculty, staff and students to make a reasonable effort to comply with copyright laws in their use of copyrighted materials. The College requires, however, that before relying on the fair use exception, faculty, staff and students will educate themselves regarding the limits of fair use and will, in each instance, perform a careful, good faith fair use analysis based on the four factors identified in Section 107 of the federal Copyright Act.
It is therefore Colorado College’s intent to facilitate the knowledgeable and good faith exercise of full fair-use rights by faculty, students, librarians, and staff, in furtherance of the educational purposes of the College including teaching, research, education and related activities.
Fair Use of Copyrighted Works for Education and Research: Colorado College Principles
Section 107 of the Copyright Act of 1976 covers the fair use of a copyrighted work, including use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.
Principle 1: A good faith exercise of fair use depends on a case-by-case application and balancing of the four factors set forth in the statute enacted by Congress and applied by the courts.
Principle 2: A nonprofit educational purpose does not always and by itself make the use "fair."
Principle 3: Responsible decision-making means that individuals within the college community must know the fundamentals of fair use and understand how to apply them in typical situations.
Principle 4: Reasonable people, including judges and legislators, can and will differ in their understanding of fair use. Copyright law does not offer a definitive meaning of fair use for any specific application.
Principle 5: Through educational efforts, the College should move over time toward a common understanding of fair use for the typical needs of its faculty, students, librarians and staff, but such detailed interpretations ought not to be part of a formal policy statement. The College recognizes that copyright law is evolving. Specific legal requirements for use of copyrighted material may change over time, and these requirements should be reflected in departmental guidelines. Guidelines reflecting current law and College practice are appended to this policy.
Principle 6: If an employee of the College acts in good faith, consistent with his or her college duties and responsibilities, the Colorado College indemnification policy can offer protection in the event of an infringement allegation.
Principle 7: If a proposed use is found to be beyond “fair”, permission must be obtained from the copyright owner before proceeding. A copyright owner has the right to refuse to allow use and to set fees for use. A judgment that a fee is excessive is not a justification for ignoring ownership rights.
For further perspectives and advice on “fair use,” see the Association of College and Research Libraries “Code”: http://www.arl.org/focus-areas/copyright-ip/fair-use/code-of-best-practices.
Implementing the policy at Colorado College
The ITAL Board seeks to create a durable policy that confirms our responsibility to uphold intellectual property rights and meet legal requirements. Guidelines for specific types of media and property should be included as appendices or links to inform and support the community in appropriate use of copyrighted materials. These reference sections may be amended and developed by responsible departments (e.g. the library, IM, Dean’s office) as questions arise and technology and the law change, without amending the basic policy statement. The Information Technology and Library Board should be charged with a review these guidelines to assure that changes are in keeping with the spirit of the policy statement.
The ITAL Board further recommends that certain positions within the College be designated to serve in an advisory capacity to faculty, staff, and students on questions concerning copyright. These individuals should be supported in developing their expertise in copyright issues, and charged with coordinating community education programs about copyright and intellectual property issues.
- VP for Finance and Administration –issues about ownership of intellectual property for CC faculty, staff and students.
- Library Director or designated professional library staff member—library reserves, digital archives, electronic reserves, general issues, licensing issues for electronic resources, use of library video and music collections, general questions.
- Associate Dean of the Faculty or Associate Dean of the College- issues on copying for classroom use, student rights, grant applications, student/faculty research
- VP for Information Management or designated IT professional staff member–Agent for notification of infringement on college owned servers, file sharing.
Existing policies to be linked under Guidelines and Resources
Reproduction and distribution of copyrighted materials.
Library physical reserves
Section 109 of the Copyright Act outlines the “first-sale doctrine,” which allows the purchaser to transfer (i.e., sell, lend or give away) a particular lawfully made copy of the copyrighted work without permission once it has been obtained. This means that the copyright holder's rights to control the lending or resale of a particular physical copy end once that copy is sold, as long as no additional copies are made.
Based on the “first-sale rule” in Section 109 of the Copyright Act, books and other lawfully acquired materials such as DVDs or journal issues may be placed on physical reserve. Some locally produced copies (i.e. some photocopies) may qualify as lawfully-made under the fair use provisions.
Any materials for reserves must have been legally acquired by the library or the faculty member. Copies must meet the standards of fair use as outlined in Section 107 of the US Copyright Law, or have the explicit permission of the copyright holder. Copies should also include bibliographic and copyright owner information. The Library also adheres to the American Library Association Interlibrary Loan Code in setting reserves policy: materials obtained from other libraries through Interlibrary Loan or Prospector cannot be placed on Reserve. The library reserves the right to refuse materials for reserves that library staff believes are in violation of fair use or the ALA Interlibrary Code.
Electronic Reserves (PROWL Course Management System)
Because electronic reserves necessarily involve scanned copies of original works, the first sale doctrine does not apply in this context, as it does with physical reserves. Providing electronic reserves must be justified as fair use or require permission from the rights holder.
Faculty members who choose to post materials for students on course pages must conduct a fair use analysis for each item. A proper determination of fair use, in daily practice and in the courts, requires applying these four factors to the specific circumstances of the use:
- The purpose or character of the use;
- The nature of the copyrighted work being used;
- The amount and substantiality of the work being used; and
- The effect of the use on the market for or value of the original.
These factors must be evaluated in the context of the use to determine whether most of them weigh in favor of or against a finding of fair use. Merely listing the name of the original author, source of the work or other attribution does not equate to having permission to use the work. Merely copying a small portion of the work, as opposed to the entire work, does not automatically mean that the original owner might not still have a basis for making a claim of infringement. A further elaboration and illustration of the meaning of these factors is available from the University of Texas Crash Course in Copyright: http://copyright.lib.utexas.edu/
Library staff may also post materials on course web pages at the request of faculty members. The library reserves the right to refuse to post materials electronically, or to remove without notice materials that have already been posted, that library staff members believe are in violation of fair use. The library may advise faculty on ways to abide by fair use such as placing only relevant sections of a complete work on reserve or providing links to licensed electronic content rather than posting that content to the course page.
Access to copyrighted electronic course materials must be limited to students who are registered for the specific course.
Class handouts and course packs
Faculty who wish to distribute copies of copyrighted materials to their classes will conduct a fair use analysis of the content. It is the responsibility of faculty to seek permission for material that falls outside of fair use guidelines. This requirement includes distribution of multiple copies on paper, on CD ROM or other digital media.
Faculty who want to create a package of readings for their classes should work with the bookstore to order course packs. The bookstore will handle permissions and reproduction. (Note that some of your readings may already be available via licensed databases subscribed by the library. The library can assist faculty in creating a “hybrid” course pack, with some materials available to students through links posted to a PROWL page, and others requiring permission available in a course pack through the bookstore.)
Web pages, unlike course management sites, are generally open to the world, so the same latitude for educational use that underlies fair use and the TEACH Act does not apply. Any copyrighted material uploaded to a Web page must be analyzed under fair use and the Digital Millennium Copyright Act.
Information management will respond to take-down notices and will notify creators of web pages of such actions. Lawsuits alleging copyright infringement for any material housed on the college servers may be handled by the legal office.
The author of a text or the creator of a graphic, program, or application is protected by copyright law unless s/he specifically releases that work into the public domain. In accordance with the College’s policies governing the treatment of copyrighted materials, users should always obtain written permission from the original author(s) before copying electronic materials that are not in the public domain. (This section copied from the IM ‘acceptable use’ page: http://www.coloradocollege.edu/its/pdf/usepolicy.pdf)
- No user may copy, or attempt to copy, any proprietary or licensed software provided by or installed on College owned resources, or to remove copyright notices or other intellectual property ownership symbols or statements. Copyright laws and license agreements protect much of the software and data that resides on the College’s computer facilities. Unauthorized duplication of software may subject users and the College to both civil and criminal penalties under the United States Copyright Act.
- Stolen or bootleg copies of software are not allowed on any Colorado College computing systems.
- All shareware programs must be registered in accordance with their license and use provisions.
Performance and display decisions
Film and Video Screening
Section 110(1) of the copyright law allows the use of legally acquired copies of media to be used without permission in face to face teaching activities within the classroom or similar place devoted to instruction. The absence of any notice on a film or video that public performance is prohibited may not be interpreted as approval of public performance. Screening of a video or film outside of a course is considered a public performance, regardless of whether the event involves a fee or is education in nature. Screenings for a class should not be open to the entire campus or announced to the public unless public performance rights have been obtained.
Departments and others sponsoring public film screenings must obtain public performance rights. The student activities office (Student Affairs) obtains performance rights for films sponsored by its office. http://www.mpaa.org/contentprotection/public-performance-law http://www.mpaa.org/protecting-creativity/#public.
Music and Dramatic Performances
Colorado College has licenses with BMI and ASCAP, and pays a yearly fee to cover all performances in campus venues. Some musical works must be rented. (See Music or Theater Department for additional information.) If a performance is recorded for publication or commercial distribution, additional right must be procured.
Streaming video and music
With respect to electronic media, the intention and end result, not the means of conveyance, should be the determining factor in deciding whether a specific use of an electronic copy is fair, assuming that use has satisfied all the other four factors of fair use. Streamed music or video for use only during face-to-face classroom instruction is probably allowed under Section 110(1) and, therefore, poses little risk.
Streamed portions of a film linked through a Course Management System for use by students outside of class may be justified by the TEACH Act. Streaming of an entire film, even to an audience restricted to a specific class, is an aggressive approach to fair use.
File sharing of copyrighted materials
Section 512 of the Digital Millennium Copyright Act (DMCA) provides limited liability for university networks acting as Internet service providers (ISPs) for students and faculty, provided that certain requirements are met. It also has anti-circumvention provisions that prohibit the unauthorized circumvention of technological measures that control access to a copyright protected work. Such technological measures may involve a password or encryption; breaking the password or encryption is prohibited, even if the purpose for which access is desired would itself be permitted. In 2008, Congress passed the Higher Education Reauthorization Act, which includes a provision related to peer-to-peer file sharing. Institutions are required to disseminate an annual disclosure to students that (1) states that unauthorized distribution of copyrighted material, such as through peer- to-peer networks, may subject students to civil and criminal penalties, (2)describes the penalties for such violations, and (3) includes the institution’s policies on peer-to-peer file sharing.
The Vice President for Information Management is the DMCA Agent to receive notices of alleged infringement. The IM policy statement “Sharing Music and Movies” for further information on file sharing policies can be found here: http://www.coloradocollege.edu/offices/informationmanagement/policies/.
The text is below:
Peer-to-Peer Programs (P2P)
Spurred on by the widespread use of the Internet, P2P programs have been developed to allow people to share information in digital formats. In particular, programs like KaZaA, Gnutella, Morpheus, AudioGalaxy, and others are commonly used to share music and movies without regard to the restrictions placed on that material by the copyright owners. Most commercially produced music and movies are copyrighted and cannot be freely downloaded or shared despite the ease of doing so. This is the law.
At Colorado College, we expect all system users to adhere to relevant copyright laws. Because our bandwidth is a costly and limited resource, we give priority to academic uses of our network. The downloading of music and movie files, which tend to be large, slows down our network for everyone. Thus while we do not access or examine the information content that is being transmitted (e.g., a particular song or video), ITS does monitor the type of information (e.g., MP3 file) so we can throttle such uses. This “traffic shaping” is a practice that is used at most higher education institutions today. We strongly encourage all members of the college community to be responsible users of our network resources – see our Acceptable Use policy (http://www.coloradocollege.edu/dotAsset/a25d0637-3ee9-4468-9b94-23d56a244e92.pdf).
The Digital Millennium Copyright Act (DMCA)
The DMCA specifies procedures that Colorado College and other higher education institutions must follow when notified that an individual using our network is violating copyright laws. If the copyright holder contacts IM about a violation we will notify the user that a notice has been received, require removal of the offending material from the user’s computer and may stop network access for the user. Such users have the right to claim that the material is not protected by copyright and defend their actions at their own expense against the copyright holder. To date, every notice we have received has resulted in the offending material being removed.
Recent Legal Actions
Recently, the RIAA has taken further action to subpoena the names of people who are sharing large amounts of music. If Colorado College receives a subpoena, we are legally required to provide the names of the violators using our network. These subpoenas can lead to lawsuits, substantial financial penalties and perhaps jail time. In the spring of 2003, for example, four students at other colleges settled copyright claims against them out-of-court for approximately $15,000 each. The consequences of illegally sharing copyrighted material over the Internet are serious. Some people have argued that the recording industry has been overcharging for music CDs and that music sharing is justified. Others feel that the recording industry has been too slow to adopt legal ways for music to be distributed over the Internet at lower cost. Regardless of these or other justifications, most music and movie downloading and sharing violates the law that we are bound to uphold. If you download and/or distribute copyrighted music and videos you are putting yourself at risk of losing computing privileges and facing prosecution under civil and criminal laws.
Because of functionality built into file-sharing software resident on your computer, your audio and video files may be available for uploading over the Internet without your knowledge or permission. For more information on how to turn off this functionality, and for other tips on responsible computing, please contact the Help Desk (x-6449 or e-mail HelpDesk@coloradocollege.edu).
- Circulation: (719) 389-6184
- or email circulation
- Research Desk: (719) 389-6662
- or email research
- Interlibrary Loan: (719) 389-6664
- or email ILL