Adopted November, 2001
"Be just and equitable in all your actions" St. Francis de Sales. Introduction to the Devout Life.
"Among the virtues, we should prefer that which is most comformable to our duty, and not that which is most conformable to our inclination." St. Francis de Sales. Introduction to the Devout Life.
As a private non-profit institution, DeSales University exists to advance knowledge through research, to disseminate knowledge through teaching, and to provide service to the public for continued learning. DeSales University is committed to providing these services in full compliance with the Copyright Law of the United States.
The United States Constitution grants Congress the power "to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries." The purpose of copyright is to further knowledge for the public good by providing authors with an economic incentive to publish their works. The intended beneficiary of copyright is the public.
The U.S. Copyright Act 17 U.S.C. 101-810 was enacted to protect the writings of authors, as well as material related to architectural design, software, the graphic arts, motion pictures, and sound recordings. A copyright gives the owner exclusive right to reproduce, distribute, perform, display, or license a given work. The copyright or retransmission of copyrighted works in documents, document collections, or homepages without the written permission of the copyright owner or the existence of "fair use" is prohibited. 1
The 1998 enactment of the Digital Millennium Copyright Act (DMCA) represents the most comprehensive reform of the United States copyright law in a generation. The DMCA seeks to update U.S. Copyright law for the digital age, and it places new constraints on educational distribution of copyrighted works.
This policy has been developed as a guide to better understanding of copyright law and fair use. It does not constitute legal advice.
Fair use was initially a doctrine created by the courts in order to limit the monopolistic power of the copyright holder. The traditional view of fair use permitted unauthorized use of a copyrighted work if the desired secondary use advanced the public benefit from activities like research and teaching. 2
In 1976, Congress amended the copyright law and included a fair use provision. It chose to provide guidelines for the application of this doctrine rather than a uniform definition of fair use.
The four factors to be considered in determining whether the use made of a work in any particular case is a fair use include:
- the purpose and character of the use
- the nature of the copyrighted work
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole
- the effect of the use upon the potential market for or value of the copyrighted work
Problems have arisen regarding the application of the four fair use factors listed in the Copyright Act. Courts of law have not weighted the factors uniformly. The scope of the fair use doctrine remains uncertain, even for traditional uses. The new technologies only increase the speculation that has long existed about what will qualify under the fair use exception.
With the passage of the Digital Millennium Copyright Act, the four factors for fair use remain applicable, but permitted uses appear to be more restrained.
Educators must consider the following factors in deciding if a proposed use falls under the fair use doctrine:
- There is a distinction between display and archiving of a copyrighted work. Using a copyrighted work in a class is a "display" but using it more than once over a period of time is "archiving" and is not a fair use
- The allowable percent of use of a work that can be used without permission of the copyright holder has traditionally has been judged to be ten percent. That is no longer the case. The critical portion of a work which can be used without permission of the copyright holder is a subjective decision.
- Creating derivative formats and distributing them can be considered a form of publication and is not a fair use.
- Any use which impairs the ability of the copyright owner to earn money from his/her creation is not a fair use. New technologies such as electronic license agreements must now be considered and may not be circumvented.
To ensure compliance with copyright law, each use of a copyrighted work must at a minimum:
- include a written educational purpose
- consist of limited excerpts
- include clear attribution
DeSales University encourages faculty, staff, and students to seek permission of the author or publisher whenever there is any doubt about a fair use of a copyrighted work.
DeSales University Copyright Guidelines have been developed to assist members of the DeSales University community in complying with federal copyright law and to enable them to distinguish between permitted and prohibited uses of copyrighted materials.
Members of the DeSales Community are expected to familiarize themselves with these guidelines and to conscientiously comply with their requirements
Disregarding the DeSales University Copyright Policy places individuals at risk of legal action. In such cases, the university may refuse to defend the employee named in the court suit and that individual may incur personal liability.
This document was created by Laura Antonson, DeSales University Bookstore Manager, Michael Duffy, Director of Auxillary Services, Dean Shaffer, former Director of Institutional Technology at DeSales University, and Debbie Malone, Trexler Library Director, DeSales University (firstname.lastname@example.org).
- University of Virginia Library. Copyright Policy and Law at the University of Virginia. 1998. (accessed July 13, 2001).
- Institute for Learning Technologies, Columbia University. CREDO Section III: the Educator's Copyright Survival Guide. 1995.(accessed July 13, 2001).
- Osborne-McKnight, Juliene "Impact of the Digital Millennium Copyright Act ." CAPE workshop. DeSales University, May 8, 2001