4.03 – Copyright Manual

September 2011

ASBURY THEOLOGICAL SEMINARY

COPYRIGHT MANUAL

 PART 1           MANUAL FOR THE USE OF COPYRIGHTED WORKS………………………….. 3

  1. INTRODUCTION…………………………………………………………………………………….. 3
  2. ATS COPYRIGHT POLICY………………………………………………………………………. 3
  3. PERMITTED USES………………………………………………………………………………….. 4
    1. Is the Work in the Public Domain?…………………………………………………….. 4
    2. Has the Copyright Owner Given Permission?…………………………………….. 4
    3. Does ATS Have a License that Applies to the Use?……………………………. 5
    4. Is There a Specific Exception in Copyright Law that Allows the Use?…… 5
      1. Performance and Display………………………………………………………. 5
      2. Distance Learning and the TEACH Act…………………………………… 8
      3. Computer Software…………………………………………………………….. 11
      4. Library Copying…………………………………………………………………. 12
    5. Is it “Fair Use” to Use the Work?……………………………………………………. 16
      1. In General………………………………………………………………………….. 16
      2. Fair Use Guidelines from Congress……………………………………….. 17
        1. Printed Works………………………………………………………….. 17
        2. Printed Music………………………………………………………….. 20
        3. Off-Air Television……………………………………………………. 21
        4. Multimedia……………………………………………………………… 23
  4. SPECIFIC GUIDELINES FOR DIGITAL WORKS AND E-RESERVES………. 25
  5. FORMS AND CHECKLISTS…………………………………………………………………… 30
    1. Copyright Warnings………………………………………………………………………. 30
    2. Copyright Permission Form……………………………………………………………. 32
    3. Fair Use Checklist…………………………………………………………………………. 34

PART 2           COPYRIGHT OWNERSHIP AND CONTROL POLICY…………………………. 35

  1. PREAMBLE………………………………………………………………………………………….. 35
  2. DEFINITIONS………………………………………………………………………………………… 36
  3. RIGHTS OF OWNERSHIP………………………………………………………………………. 38
  4. RIGHTS OF USE…………………………………………………………………………………….. 39
  5. LICENSING RIGHTS……………………………………………………………………………… 41
  6. COPYRIGHT NOTICE AND USE OF THE ATS NAME………………………….. 42
    Addendum…. …………………………………………………………………………………………. 44
    Explanation of Copyright Ownership and Control Policy

PART 1—MANUAL FOR THE USE OF COPYRIGHTED WORKS

I. INTRODUCTION

Under federal copyright law, educators and institutions can be liable for copyright violations even though the copyrighted work is used for educational reasons. Asbury Theological Seminary (“ATS”) believes it is important for faculty, students and staff to know the limits and conditions that apply to educational uses of copyrighted works. Therefore, ATS expects its faculty, students and staff to be familiar with and follow the guidelines in this manual.

II. ATS COPYRIGHT POLICY

ATS desires to comply with federal copyright law. Works protected by copyright law come in many forms, including print, audio and electronic works. For purposes of this manual, the “use” of a copyrighted work includes reproducing, performing, displaying or distributing reproductions of the work, as well as preparing derivative works based upon the original work. (Definitions for “performance” and “display” of copyrighted works are provided in Section III.D.1. of this manual.) This manual contains guidelines for several specific situations; however, some basic guidelines apply regardless of the situation:

  1. ATS faculty, students and staff must not make unlawful copies of copyrighted works, either (1) with equipment that ATS owns or operates, (2) within facilities that ATS either owns or operates, or (3) at functions that ATS sponsors.
  2. ATS employees must not either direct or encourage either students or other employees to violate copyright law. ATS employee also must not either direct or encourage either students or employees to make unauthorized copies of course content.
  3. ATS faculty, students and staff should become familiar with this manual and, if they use copyrighted works without permission, they must be prepared to explain why they believe the particular use is allowed under the guidelines in this manual.
  4. ATS will make efforts to post copyright warnings as required by law. See Form A (“Copyright Warnings”) in the forms and checklists section of this manual.

III.       PERMITTED USES

There are several situations under copyright law in which ATS faculty, students or staff may be allowed to use works in which they are interested. ATS faculty, students and staff should apply the following guidelines to determine if their desired use of a work is allowed.

  1. Is the Work in the Public Domain?

Works such as U.S. government works, works published before 1923 and works on which the copyright has expired are considered to be in the “public domain.” If a work is in the public domain, the limits and conditions in this manual do not apply.

  1. Has the Copyright Owner Given Permission?

The copyright to a particular work may be owned by either the original author or someone else. If the copyright owner has given permission for a work’s particular desired use, the limits and conditions in this manual do not apply. See Form B (“Copyright Permission Form”) in the forms and checklists section of this manual for a tool to use when seeking permission from the copyright owner.

  1. Does ATS Have a License that Applies to the Use?

ATS may have a license, such as its Copyright Clearance Center Annual Academic License (“CCC license”), which may apply to a work’s particular desired use. Before using a work for an educational reason, ATS faculty and staff must contact ATS’s Faculty Instructional Commons (“FIC”) to find out both (1) if ATS has a license that applies to the work they want to use, and (2) what the license’s terms and conditions are for use of that work. Faculty may see if a particular work is covered by ATS’s CCC license by searching the CCC’s website, however, faculty still must contact the FIC to actually request and obtain the work to be used under the CCC license. If use of a work is covered by one of ATS’s licenses, the user must follow the terms of that license.

In some cases, ATS may be able to obtain a license directly from the copyright owner of a particular work. (For example, ATS may be able to obtain a license for the recording and use of an on-campus speaker’s presentation.) All requests for such licenses, though, must be made through the FIC or such other means as ATS may designate.

Specific guidelines for software licenses are more specifically addressed in Section III.D.3. of this manual.

  1. Is There a Specific Exception in Copyright Law that Allows the Use?
  1. Performance and Display (Section 110 of the Copyright Act)

The copyright owner of a musical work or motion picture has the right to control its public performance or display. For purposes of copyright law:

  1. “Perform” means to recite, render, play, dance or act a work, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.
  2. “Display” means to show a copy of the work, either directly or by means of a film, slide, television image or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially.
  3. “Publicly” performing or displaying a work means to either (1) perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances are gathered; or (2) transmit or otherwise communicate a performance or display of the work, either to one of the places specified above or to the public, by any means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

Typically, either permission or a license (e.g., from ASCAP, IBM or SESAC) is required to either perform or display a copyrighted work. There are, however, several exceptions that may apply, provided that the conditions for those exceptions are met.

            Face-to-Face Teaching Activities

Under this exception, any copyrighted work may be performed or displayed in a face-to-face teaching activity, without a license, if the performance or display both:

  1. takes place in a classroom or similar place of instruction such as a school library; and
  2. directly relates to the curriculum (e.g., it is not connected with recreation or reward such as treating the class to a movie).

            Transmission of Instructional Activities

This exception applies to “non-dramatic” literary and musical works such as singing a song, reciting a poem, reading a short story out loud or displaying a painting, but it does not apply to plays, movies and most audiovisual works. Under this exception, a non-dramatic literary or musical work may be either performed or displayed without a license if both:

  1. the performance or display is both a “regular part of systematic instructional activities” and “directly related and of material assistance to the teaching content”; and
  2. the transmission is made for reception in a classroom or similar place of instruction.

            Certain Non-Profit Performances

This exception allows a live performance (which can include playing phonorecords, such as compact discs, and performance through a receiving apparatus, such as a radio) of a non-dramatic literary or musical work without a public performance license if all of these conditions are met:

  1. The performance cannot be transmitted to another location.
  2. The performance must be without any purpose of a direct or indirect commercial advantage. For example, a performance by a school orchestra directed by a school music instructor who is paid by annual salary is allowed, but the same performance directed by a hired band leader is not.
  3. The school or institution must either (1) not charge admission; or (2) if admission is charged, use the proceeds exclusively for an educational, religious or charitable purpose, in which case the copyright owner has certain notice and “veto” rights.
  4. The performance must be non-dramatic (e.g., a concert, choral work or poetry reading). Performing dramatic works, such as plays and musicals, is only allowed in face-to-face teaching activities.
  5. Distance Learning and the TEACH Act (Section 110(2) of the Copyright Act)

The federal Technology, Education and Copyright Harmonization Act (“TEACH”) allows instructors to emulate conventional instruction and lecture formats in their distance learning courses by allowing ATS to transmit digital copies of copyrighted works as part of a distance learning course, subject to several conditions.

            Conditions that faculty and staff must address

ATS faculty and staff who either teach or provide support for distance learning courses must work together to address all of the following conditions for each copyrighted work that may be transmitted in a distance learning course with which they are involved; provided, however, that instructors are ultimately responsible for being sure these conditions are met in each distance learning course they teach:

  1. The work must be either:

(1)       a performance of a non-dramatic literary work; or

(2)       a performance of a non-dramatic musical work; or

(3)       a performance of any other work, including dramatic works, but only in “reasonable and limited portions;” or

(4)       a display in an amount comparable to that which is typically displayed in the course of a live classroom session.

  1. The work must not be either:

(1)       sold or licensed in other formats produced or marketed primarily for digital distance education; or

(2)       a text book, course pack or other copyrighted work typically purchased or acquired by students for their instructional use as part of a class; or

(3)       an unlawful copy of a copyrighted work that either the instructor or ATS has reason to believe is an unlawful copy.

  1. The performance or display of the work must be:

(1)       an integral part of a class session that is offered as regular part of ATS’s systematic, mediated, instructional activities; and

(2)       made either by, at the direction or under the actual supervision of an ATS instructor (although the TEACH Act does not require “real time” supervision, but rather, general supervision achieved by following the this manual’s guidelines for the use of copyrighted works in distance learning courses); and

(3)       directly related and of material assistance to the distance learning course’s teaching content, such that the works are used as an actual part of a class assignment and not merely for either entertainment purposes or optional reading.

  1. For works that must be converted from print or another analog format into a digital form:

(1)       the amount of work converted must not be greater than the amount that lawfully may be used for the course, as explained above in the guidelines for “Transmission of Instructional Activities”; and

(2)       either there is no digital version of the work available to ATS, or the available digital version has technological protections that prevent its availability for use in the distance learning course.

  1. ATS instructors and staff must use available technological tools, such as assigned access codes or passwords, to:

(1)       limit access of the works to those students enrolled in the distance learning course; and

(2)       prevent downstream copying by the students; and

(3)       prevent students from either accessing or retaining works for longer than a class session so that the works cannot be either stored or reviewed later in the academic term.

  1. Instructors and staff must provide a notice to enrolled students that informs them that both:

(1) works used in the distance learning course may be subject to copyright protection, and

(2) students are not allowed to violate a copyright owner’s legal rights.

  1. ATS may retain temporary copies of copyrighted works to effect the transmission of those works for a distance learning course. ATS may not, however, store the works for access by students for access on a system or network for longer than what is reasonably needed to facilitate the transmission. Staff must ensure that such works are stored on a system that can be accessed only by the instructors, enrolled students and other appropriate recipients of the transmission.
  2. While ATS may keep copies of its digital transmissions in connection with distance learning courses, no other copies may be made from the transmitted works other than what is allowed under the guidelines in this manual for the “Transmission of Instructional Activities,” already discussed above. Instructors may retrieve electronic copies of copyrighted works that have been secured from the electronic reach of students for use in future distance learning courses.

            Guidelines for students in distance learning courses

Students must remember that class material obtained in a distance learning course may contain copyrighted works. Students must not either retain or redistribute such copyrighted works.

  1. Computer Software

            Permitted uses of copyrighted software (Section 117 of the Copyright Act)

Section 117 of the Copyright Act allows the owner of a copyrighted computer program, such as ATS, to:

  1. make another copy or adaptation of the program for backup purposes, but not to make multiple copies or replacement copies from the backup copy;
  2. adapt the program from one language to another language in which it is not currently available; and
  3. add features to the program for use at school so the owner can make better use of the program.

            Conditions and limitations for lending copyrighted software

As a general rule, the Copyright Software Rental Amendments Act gives copyright owners computer software the right to control rental, lease or lending of their software. There is, however, an exception that allows nonprofit libraries to lend computer software, provided, however, that a copyright warning is fixed to the software, which must read: “This exception does not apply to software lending by technology or academic departments or administrators.”

            Licenses for copyrighted software

As already discussed above, often there is a license agreement that applies to the use of copyrighted computer software. When using copyrighted software, ATS faculty, students and staff must review the terms and conditions of the software’s license agreement, if any, especially the terms and conditions of that agreement that concern permitted uses, prohibited uses, restrictions and copying limitations. The terms and conditions of a program’s license agreement will determine whether a particular use is allowed, and those terms and conditions must be followed no matter what the guidelines in this manual may say.

            Multiple copies within an institution or department

Often a computer program is a “single-user” program only, which means the program can only be installed on one machine. There is no “fair use” or specific copyright exception that allows an institution or department to either make multiple copies of a single-user computer program or install it on more than one machine within that institution or department.

  1. Library Copying (Section 108 of the Copyright Act)

ATS librarians and library (Information Commons) staff must follow the guidelines in this section when they make copies of copyrighted works for patrons to use in personal research.

            To make a single copy, each of the following conditions must be met:

  1. The copy must be made without commercial advantage.
  2. The library must be open to the public.
  3. The copy must include the notice of copyright that appears on the work or, if no such notice can be found, there must be a legend that states the work may be protected by copyright law.
  4. The copy must be made at the user’s request.
  5. The copy must be made from either (1) the collection of the library or archives where the user makes his or her request, or (2) the collection of another library or archives.
  6. The copy must be no more than one article or one contribution to a copyrighted collection or periodical, or a small part of any other copyrighted work.
  7. If an entire work or a substantial part of it is requested, the library must first determine that a copy cannot be obtained at a fair price.
  8. The copy must become the user’s property and the library must have no notice that the copy would be used for any purpose other than private study, scholarship or research.
  9. A copyright warning must be prominently displayed both (1) at the place where orders are accepted, and (2) on order forms. See Form A (“Copyright Warnings”) in the forms and checklists section of this manual.

To make a digital copy, each of the following conditions must be met in addition to the conditions addressed above for single copies:

  1. If the work is protected by a license agreement, the terms and conditions of the agreement must be followed.
  2. In addition to including the copyright notice on the copy, this language must be added: “No further reproduction and distribution of this copy is permitted by transmission or any other means.”
  3. The copy (e.g., a disk or file attachment) must become the user’s property and all other digital copies must be destroyed.

To make three archival copies of an unpublished work, each of the following conditions must be met:

  1. The copies must be made solely for purposes of either (1) security and preservation, or (2) research use in another library.
  2. The work must be in the library’s collections.
  3. Copies reproduced in digital format must not be otherwise distributed or made available in that format to the public outside the library’s premises (e.g., a publicly accessible website).

To make three replacement copies of a published work, each of the following conditions must be met:

  1. The copies must be made solely to replace a copy that is damaged, lost or stolen, or because the work’s existing format has become obsolete.
  2. An unused replacement cannot be obtained at a fair price.
  3. Copies reproduced in digital format must not be otherwise made available to the public in that format outside the library’s premises.

To reproduce, distribute, display or perform a published work during the last 20 years of its copyright term, each of the following conditions must be met:

  1. The use must be for preservation, scholarship or research purposes.
  2. The user must be either a library or archives.
  3. The work must no longer be subject to normal commercial exploitation.
  4. A copy of the work cannot be obtained at a reasonable price.

Photocopying and interlibrary loans

Within any calendar year, a library may receive up to but no more than five photocopies of articles from a periodical title (not a mere issue) that is less than five years old.

            Section 108 does not:

  1. impose copyright infringement liability upon a library or its employees for the unsupervised use of reproduction equipment, provided, however, that the equipment displays a notice stating that the making of a copy may be subject to copyright law; nor does it
  2. excuse a person who either uses library reproduction equipment or requests a copy from the library from liability for copyright infringement if it exceeds what is allowed under “fair use” (see below); nor does it
  3. limit the lending of a limited number of copies and excerpts of an audiovisual news program; nor does it
  4. in any way affect the right of “fair use” under Section 107 of the Copyright Act or any contractual obligations the library assumes when it obtains a copy of a work in its collections.

            The copying rights throughout Section 108:

  1. extend to the isolated and unrelated reproduction or distribution of a single copy of the same work on separate occasions;
  2. do not extend to cases where the library is aware (or has substantial reason to believe) that it is engaging in the related or concerted reproduction or distribution of multiple copies of the same work;
  3. do not extend to the systematic reproduction or distribution of single or multiple copies (although this does not prevent a library from participating in interlibrary arrangements, so long as the quantity of copies received does not substitute for a subscription or purchase of a work); and
  4. do not apply to a musical work; a pictorial, graphic, or sculptural work; or a motion picture or other audiovisual work other than an audiovisual work dealing with news.
  5. Is it “Fair Use” to Use the Material?
  1. In General

If a particular use of a copyrighted work is not allowed by either permission, license or a specific copyright exception, the use still may be allowed under the Copyright Act’s guidelines for “fair use.” There is no “hard and fast” rule for what is or is not “fair use” under the Copyright Act. Instead, the Act lists four factors that must be applied in each instance to determine whether a desired use would be “fair use”:

  1. Purpose and character. This factor includes consideration of whether the use is for commercial purposes, which are disfavored, as opposed to nonprofit educational purposes, which are favored.
  2. Nature of the copyrighted work. This factor favors uses of nonfiction over fiction and published works over unpublished works. Highly creative works like music, creative writing and films have the highest protection.
  3. Amount and substantiality. This factor looks at the portion of the copyrighted work to be used in relation to the work as a whole. This factor can be difficult to gauge. There is no specific number of words, lines or notes that can be guaranteed as “safe” to use without permission. In general, though, use of excerpts is favored over use of entire works. Still, use of just a small portion of a work could be considered infringement if it is enough to capture the heart or essence of the work.
  4. Market effect. This factor looks at the effect of the use upon the potential market for or value of the copyrighted work.

All of these factors should be applied together, as a whole, when evaluating whether a desired use of a work would be “fair use.”

  1. Fair Use Guidelines from Congress

To help educators understand how these factors generally should apply and to provide examples of when permission would be required, Congress has prepared fair use guidelines for a number of educational situations.   Uses that exceed these guidelines may or may not be “fair use,” since Congress’s guidelines generally establish the “floor” and not necessarily the “ceiling” for what might be fair use. However, the more one exceeds these guidelines, the greater the risk that “fair use” does not apply.

            Guidelines for printed works (other than print music)—permitted uses

Single Copying for Instructors

A single copy may be made of any of the following by or for an instructor at his or her individual request for his or her scholarly research or use in teaching or preparation to teach a class:

  1. A chapter from a book.
  2. An article from a periodical or newspaper.
  3. A short story, short essay, or short poem, whether or not from a collective work.
  4. A chart, graph, diagram, drawing, cartoon or picture from a book, periodical, or newspaper.

Multiple Copies for Classroom Use

Multiple copies (not to exceed in any event more than one copy per student in a course) may be made by or for the instructor of the course for classroom use or discussion, provided that:

  1. the copying meets the tests of brevity and spontaneity as defined below; and
  2. the copying meets the cumulative effect test as defined below; and
  3. each copy includes a notice of copyright.

Brevity (the following satisfy the test of brevity)

  1. Poetry: Either (1) a complete poem if less than 250 words and if printed on not more than two pages; or (2) from a longer poem, an excerpt of not more than 250 words.
  2. Prose: Either (1) a complete article, story or essay of less than 2,500 words; or (2) an excerpt from any prose work of not more than 1,000 words or 10 percent of the work, whichever is less, but in any event a minimum of 500 words.
  3. Illustration: One chart, graph, diagram, drawing, cartoon or picture per book or per periodical issue.
  4. “Special Works“: Certain works in poetry, prose or “poetic prose,” which often combine language with illustrations and which are intended sometimes for children and at other times for a more general audience and fall short of 2,500 words in their entirety. Paragraph “b” above notwithstanding, such “special works” may not be reproduced in their entirety; however, an excerpt comprising not more than two of the published pages of a special work and containing not more than 10 percent of the words found in the text thereof may be reproduced.

(The numerical limits above for poetry and prose may be expanded to permit the completion of an unfinished line of a poem or of an unfinished prose paragraph.)

Spontaneity (both of the following are required to satisfy the test of spontaneity)

  1. The copying is at the instance and inspiration of the individual instructor; and
  2. The inspiration and decision to use the work and moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission.

Cumulative Effect (all of the following are required to satisfy the test of cumulative effect)

  1. The copying of the material is for only one course in the institution in which the copies are made; and
  2. Not more than one short poem, article, story, essay or two excerpts may be copied from the same author, nor more than three from the same collective work or periodical volume during one class term; and
  3. There must not be more than nine instances of such multiple copying for one course during one class term.

(The limitations stated in “a” and “b” above do not apply to current news periodicals, newspapers and current new sections of other periodicals.)

Guidelines for printed works (other than print music)—prohibited uses

Notwithstanding any of the above, the following uses are prohibited:

  1. Copies cannot be used to create or to replace or to substitute for anthologies, compilations, or collective works. Such replacement or substitution may occur whether copies of various works or excerpts from those works are either accumulated or reproduced and used separately.
  2. Copies of or from works intended to be “consumable” in the course of study or of teaching are not allowed. These include workbooks, exercises, standardized tests, test booklets, answer sheets, and like consumable material.
  1. Copying cannot:

(1)       substitute for the purchase of books, publishers’ reprints or periodicals; nor

(2)       be directed by higher authority; nor

(3)       be repeated with respect to the same item by the same instructor from term to term.

  1. Students cannot be charged beyond the actual cost of the photo-copying.

            Guidelines for print music—permitted uses

  1. Emergency copying to replace purchased copies that for any reason are not available for an imminent performance, provided that purchased replacement copies must be substituted in due course.
  2. For academic purposes other than performances, multiple copies of excerpts of works may be made, provided that the excerpts do not comprise a part of the whole which would constitute a performable unit such as a section, movement or aria, but in no case more than 10 percent of the whole work. The number of copies must not exceed one copy per student.
  3. Printed copies which have been purchased may be edited or simplified, provided that the fundamental character of the work is not distorted; that the lyrics, if any, are not altered; and that lyrics are not added if none exist.
  4. A single copy of recordings of performances by students may be made for evaluation or rehearsal purposes and may be retained by the educational institution or individual instructor.
  5. A single copy of a sound recording (such as a tape, disc or cassette) of copyrighted music may be made from sound recordings owned by an educational institution or an individual instructor for the purpose of constructing aural exercises or examinations and may be retained by the educational institution or individual instructor. (This pertains only to the copyright of the music itself and not to any copyright which may exist in the sound recording.)

            Guidelines for print music—prohibited uses

  1. Copying to create or to replace or to substitute for anthologies, compilations, or collective works.
  2. Copying of or from works intended to be “consumable” in the course of study or teaching such as workbooks, exercises, standard tests and answer sheets and like material.
  3. Copying for the purpose of performance, except as in item “a” of permitted uses for print music, above.
  4. Copying for the purpose of substituting for the purchase of music except as in permitted uses for print music, above.
  5. Copying without inclusion of the copyright notice which appears on the printed copy.

            Guidelines for off-air television recordings

These guidelines cover use of television broadcast programs for educational purposes. There may be additional limits and conditions for programs broadcast by either cable or satellite television providers (such as CNN, ESPN, HBO, etc.), and so faculty, students and staff should seek assistance from ATS’s FIC to determine what those additional limits and conditions, if any, may be. Other uses of video (performances and displays, multimedia and distance learning) are covered in other sections of this manual.

  1. A broadcast program may be recorded off-air simultaneously with broadcast transmission and retained by a nonprofit educational institution for a period not to exceed forty-five (45) calendar days after the date of recording. Upon conclusion of the retention period, all off-air recordings must be erased or destroyed immediately. “Broadcast programs” are television programs transmitted by television stations for reception by the general public without charge.
  2. Off-air recordings may be used once by individual instructors in the course of relevant teaching activities, and repeated once only when instructional reinforcement is necessary, in classrooms and similar places devoted to instruction within a single building, cluster, or campus, as well as in the homes of students receiving formalized home instruction during the first ten (10) calendar days in the forty-five (45) calendar day retention period.
  3. Off-air recordings may be made only at the request of individual instructors for their own use and may not be regularly recorded in anticipation of requests. No broadcast program may be recorded off-air more than once at the request of the same instructor, regardless of the number of times the program may be broadcast.
  4. A limited number of copies may be reproduced from each off-air recording to meet the legitimate needs of instructors under these guidelines. Each such additional copy is subject to all provisions governing the original recording.
  5. After the first ten (10) consecutive school days, off-air recordings may be used up to the end of the forty-five (45) calendar day retention period only for instructor evaluation purposes, i.e., to determine whether or not to include the broadcast program in the teaching curriculum. They may not be used by the recording institution for student exhibition or other evaluation purposes without authorization. “School days” are school session days—not counting weekends, holidays, vacations, examination periods or other scheduled interruptions—within the forty-five (45) calendar day retention period.
  6. Off-air recordings need not be used in their entirety, but the recorded programs may not be altered from their original content. Off-air recordings may not be physically or electronically combined or merged to constitute teaching anthologies or compilations.
  7. All copies of off-air recordings must include the copyright notice on the broadcast program as recorded.
  8. Educational institutions are expected to establish appropriate control procedures to maintain the integrity of these guidelines.

            Guidelines for multimedia—permitted uses

These guidelines apply to the creation of multimedia works, which presents situations where the user is likely to deal with copyrights on all aspects of the production that are not original, including video, graphics, music, other sound recordings and computer software.

  1. Students may perform and display their own educational multimedia projects for the course for which they were created and may use them in their own portfolios as examples of academic work.
  2. Educators may perform and display their own education multimedia projects for face-to-face instruction, assigning to students for directed self-study, peer conferences and professional portfolios.

            Guidelines for multimedia—limitations

  1. Educators may use their projects for teaching courses for two years. Use beyond that time period requires obtaining permission for each copyrighted portion.
  2. Portions are generally specified “in the aggregate,” meaning the total amount that can be used from a single copyrighted work.
  3. Motion Media (film, video, television): Up to 10% or three minutes, whichever is less, from a single copyrighted work.
  4. Text (prose, poetry, drama): Up to 10% or 1000 words, whichever is less, from a single copyrighted work.
  5. Special limitations are placed on poems.
  6. Music, Lyrics, and Music Video: Up to 10%, but in no event more than 30 seconds, of the music and lyrics from an individual musical work.
  7. Illustrations and Photographs: No more than five images by an artist or photographer. From a published collective work, no more than 10% or 15 images.
  8. Data Sets: Up to 10% or 2500 fields or cell entries from a database or table.
  9. Copying and Distribution: There may be no more than two copies, only one of which can be placed on reserve. An additional copy may be made for preservation (backup) purposes.

            Guidelines for multimedia—when permission is required

Educators and students must seek individual permission for all copyrighted works incorporated in their educational multimedia projects for (a) non-educational or commercial purposes, (b) duplication beyond guideline limitations, and (c) distribution over an electronic network other than certain remote instruction uses. Other instances where permission may be required are addressed above.

            Guidelines for multimedia—important reminders

  1. Exercise caution in using digital material downloaded from the internet. Some copyrighted works cannot be reused without either permission or royalty payment. Also, many web sites contain material posted without authorization from the copyright holder. See also Section III.D.2. of this manual (distance learning and the TEACH Act).
  2. Credit the sources and display the copyright notice and copyright ownership information.
  3. Alterations of copyrighted works must support specific instructional objectives. Make note that alterations have been made.
  4. SPECIFIC GUIDELINES FOR DIGITAL WORKS AND E-RESERVES

The copyright and fair use guidelines and principles covered in this manual apply equally to various kinds of copyrighted works, regardless of the format, including works in print, audio and electronic formats. Thus, any use that would require permission from the copyright owner if the work were in print also requires the owner’s permission when the work is available in digital form. In addition to any other guidelines in this manual that may apply, the “fair use” guidelines in this section (Section IV), which are included in the guidelines issued by Congress, must also be considered and followed when dealing with electronic works to be placed on electronic reserve (“e-reserve”) for use as course content at ATS.

  1. Guidelines for faculty and staff

The following guidelines apply to electronic works—including digital audio and digital image files—that faculty wish to place on e-reserve for use as course content.

  1. Faculty who wish to use a particular work as electronic course content must consult with ATS’s Information Commons staff to determine whether and how that may be done.
  2. Information Commons staff will first determine whether a specific license applies to the use of a particular work as electronic course content and, if so, what limits and conditions are imposed by that license’s terms. If there is no license that applies to the desired use, Information Commons staff will then evaluate the “fair use” guidelines in this section and elsewhere in this manual to determine if it is “fair use” to use the particular work as electronic course content or if permission is required instead. If Information Commons staff determine that a desired use is not allowed under the guidelines in this manual, the work will not be placed on e-reserve. Works in the public domain may be placed on e-reserve.
  3. Permission may be required for the use of a copyrighted work as electronic course content even if the work is either (a) available elsewhere on the internet; (b) being used in a course for the first time; or (c) characterized for purposes of a course use as optional, supplemental or ancillary reading material rather than required, assigned or recommended reading material.
  4. To the extent technologically feasible, Information Commons staff will use passwords or other appropriate tools to limit access of copyrighted electronic course content to students enrolled in the course and other individuals who need access to the course materials for purposes of conducting the course. Unless otherwise allowed by a license’s terms or the owner’s permission, a work placed on e-reserve at ATS will only be available for the particular course and term for which it was requested, plus a reasonable time after the term for course-related reasons if requested by the instructor. After that, Information Commons staff will terminate student access to the work. ATS provides support for implementing these restrictions through Moodle.
  5. ATS prefers and encourages the use of links to works already legally available on another website rather than scanning or otherwise creating a digital copy.
  6. Whenever feasible, the original of the work to be placed on e-reserve should be either owned or purchased by ATS. Information Commons staff should use a lawfully-made copy provided by the instructor only after they have made a good faith effort to purchase a commercially available copy, and even then only if the Information Commons retains the original copy for as long as the digital copy is retained.
  7. Works placed on e-reserve are to be used only as a supplement to assigned course texts and/or licensed course compilations. Licensed course compilations may be required when works are used as central course material in lieu of a textbook.
  8. Works on e-reserve must comprise only a small portion of the total assigned material for any course.
  9. Students may have streaming access to digital audio files but they may not have downloading access to such files.
  10. Systematic digitization of musical works is not allowed.
  11. Digital copies of entire audio works made in order to provide digital delivery of course reserves may be allowed; however, digital copies of audio works should, to the extent feasible, consist of no more than is necessary to satisfy the classroom pedagogical needs.
  12. An image should only be digitized when a digital copy of suitable quality is not readily available at a reasonable cost and in a reasonable time from other legal sources.
  13. A digital image should not be shared with other educational institutions if such sharing is prohibited by the terms under which the image was acquired.
  14. Thumbnails of digital images with proper links to the original digital image should be used whenever feasible, rather than full-sized digital copies of an image.
  15. Copies of copyrighted works, regardless of their format, must include proper attribution and copyright notices. See Form A (“Copyright Warnings”) in the forms and checklists section of this manual for copyright warnings that may apply.
  16. Guidelines for student use of works on e-reserve
  17. Students may download and print a copy of e-reserve material for the course(s) they are enrolled in or make a copy of a few pages of a book or journal article for the limited purpose of private study, scholarship or research. Under no circumstances, however, may a student download and print a copy of e-reserve material for a course he or she is not enrolled in.
  18. A student may not reproduce an entire book or substantial portions of a book, an entire chapter of a book, or a journal without either permission from the copyright owner or permission under a license held by ATS. Information on licenses held by ATS can be obtained by contacting the FIC.
  19. Students should not either share or distribute e-reserve materials, including passwords, with other students, friends, family, or business colleagues, even if the recipient is a student enrolled in the same course.
  20. Students may not use the e-reserve material or copyrighted materials to which they have been given access, either for commercial purposes or where such use would have an indirect relation to a commercial activity. Materials provided to the students through e-reserves should not be either sold to or exchanged with anyone. Selling or exchanging such materials through online bookstores, online auction sites, coursebook exchange programs, classmates, or individuals violates copyright law.
  21. If a student wishes to disseminate copyrighted works to multiple recipients, the student should consult the Information Commons staff. Normally, the student or the Information Commons will be required to obtain permission from the copyright holder by contacting the copyright owner directly, the publisher or a collective rights organization such as a the CCC. No student should engage in such widespread distribution without first obtaining permission.
  1. FORMS AND CHECKLISTS

FORM A: Copyright Warning for Use by Libraries and Archives

The following warning is required (1) to be displayed at the place where orders for copies or recordings are accepted by the ATS library and (2) to be included on printed forms supplied by the library and used by its patrons for ordering copies or recordings.

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Copyright Regulations

(a)        Definitions.

(1)       A “Display Warning of Copyright” is to be displayed at the place where orders for copies copyrighted works are accepted by libraries and archives.

(2)       An “Order Warning of Copyright” is to be included on printed forms supplied by libraries and archives and used by their patrons for ordering copies of copyrighted works.

(b)       Contents.

A Display Warning of Copyright and an Order Warning of Copyright shall consist of a verbatim reproduction of the following notice, printed in such size and form and displayed in such manner as to comply with copyright law:

The copyright law of the United States (title 17, United States Code) governs the making of photocopies or other reproductions of copyrighted material. Under certain conditions specified in the law, libraries and archives are authorized to furnish a photocopy or other reproduction. One of these specific conditions is that the photocopy or reproduction is not to be “used for any purpose other than private study, scholarship, or research.” If a user makes a request for, or later uses, a photocopy or reproduction for purposes in excess of “fair use,” that user may be liable for copyright infringement. This institution reserves the right to refuse to accept a copying order if, in its judgment, fulfillment of the order would involve violation of copyright law.

(c)        Form and Manner of Use.

(1)       A Display Warning of Copyright shall be printed on heavy paper or other durable material in type at least 18 points in size, and shall be displayed prominently, in such manner and location as to be clearly visible, legible, and comprehensible to a casual observer within the immediate vicinity of the place where orders are accepted.

(2)       An Order Warning of Copyright shall be printed within a box located prominently on the order form itself, either on the front side of the form or immediately adjacent to the space calling for the name or signature of the person using the form. The notice shall be printed in type size no smaller than that used predominantly throughout the form, and in no case shall the size be smaller than 8 points. The notice shall be printed in such manner as to be clearly legible, comprehensible, and readily apparent to a casual reader of the form.

FORM B: Request for Permission

The following request form may be used to request permission for use of copyrighted materials when either statutory exceptions or fair use do not allow use of the materials without a license.

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Request for Permission

Date: _________

To Whom It May Concern:

We are writing to request permission to reproduce/use the below-identified work for the following purpose:

___________________________________________________________________________

Title: ________________________

Copyright Information: __________________

Author(s): ______________________

Number of Copies: ____________________

Method of Distribution, Display, etc.: _____________

A self-addressed-stamped-envelope is enclosed for you to return your response. Please reply to let us know if you require any fees to be paid for this proposed use in an educational setting.

Sincerely,

___________________________

Address: ____________________

___________________________

___________________________

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 Copyright Owner Information:

Permission Granted by: ________________________

Printed Name: ____________________

Title: ___________________________

Date: ___________

Fee or other Condition of Use: __________________________

FORM C: Fair Use Checklist 

This checklist may be used in connection with the determination of fair use as explained in the Introduction to this Manual. This is a tool to help in the subjective decision-making in this area, and there is no foolproof method to decide if a use is a fair use. In general, if the weight of factors strongly favors fair use, then fair use likely applies (and vice versa).

PURPOSE

 

Favoring Fair Use:                                                    Opposing Fair Use:                                       

o   Teaching o   Commercial Activity
o   Research o   Profiting From Use
o   Scholarship o   Entertainment
o   Criticism/Commentary/Parody o   Bad-faith behavior
o   Transformative o   Denying credit to original author

AMOUNT

Favoring Fair Use:                                                    Opposing Fair Use:

o   Small quantity o   Large quantity or whole work
o   Portion used is not significant to entire work o   Portion used is central to work or “heart of the work”
o   Amount is appropriate for educational purpose

EFFECT

Favoring Fair Use:                                                    Opposing Fair Use:                                       

o   Uses lawfully acquired copy of original work o   Could replace sale of copyright work
o   One or few copies made o   Numerous copies made
o   No significant effect on the market or potential market o   Significantly impairs market or potential market
o   Lack of licensing mechanism o   Reasonably available licensing mechanism
o   No similar product marketed by the copyright o   Affordable permission available for using work
o   Repeated or long term use
o   Accessible on web or in other public forum

PART 2—ATS COPYRIGHT OWNERSHIP AND CONTROL POLICY

  1. PREAMBLE

The mission of Asbury Theological Seminary (“ATS”) is to create, preserve and disseminate knowledge through offering courses of study in the classical and practical disciplines with a biblically-grounded and theologically informed scholarly perspective. Scholars within the ATS community are encouraged to pursue areas of study and concentration without interference, to share the results of their intellectual efforts with colleagues and students and to use and disseminate their own original creative works. ATS also recognizes its obligation to provide the highest quality educational products and services through development of a richness of resources to serve its students and the broader public interest.

As the above mission is fulfilled, intellectual property inevitably will be created. This Copyright Policy (the “Policy”) balances the interests of the administration, the faculty and the staff within the ATS community and the public at large. Section 2 defines the key terms used throughout the Policy; Section 3 sets forth the rights of ownership of the various types of copyrightable materials created at or for ATS; Section 4 sets forth the respective rights of use; Section 5 addresses the issue of licensing and the allocation of income; and Section 6 addresses the use of copyright notice and the use of the ATS name on copyrighted works.

The Policy clarifies which works are created “within the scope of employment” with the authorship vesting in ATS. The Policy is incorporated by reference into the employment contracts of faculty, staff and other ATS employees and is binding as between ATS and its employees. Furthermore, the Policy applies to all material created at or for ATS, embodied in any format now known or to be discovered, including, without limitation, electronic formats used with Internet, Intranet and other distance learning methods.

In the event that the Policy, in conjunction with federal copyright law, does not affect the desired rights of ownership and use described below, the parties covered by this policy agree to execute any documentation necessary to affect these desired results.

  1. DEFINITIONS

“ATS Publication” means a journal, periodical, yearbook or other print or electronic work owned by ATS in any format now known or to be developed.

“Copyrightable” under the Copyright Act 17 U.S.C. §101 et seq., means “original” and fixed in a tangible medium of expression. “Original” means created independently (i.e., not copied). A work is “fixed in a tangible medium of expression” when its embodiment in a copy or phonorecord is sufficiently permanent to permit it to be perceived, reproduced or otherwise communicated for a period of more than transitory duration.

“Course Content” means the Copyrightable intellectual materials used in a course taught at or sponsored by ATS, including, but not limited to: lecture notes, quizzes, exams, class hand-outs and syllabi.

“Courseware” means the Copyrightable set of tools and/or technologies used to present Course Content, independent of the content itself. Courseware includes, but is not limited to: videotapes and other recordings of all course lectures or presentations; Internet- and Intranet-based course materials; computer slides, CD-ROMs and other computer-based course materials.

“Institutional Work” means a Copyrightable work of authorship that is (i) created with the use of Substantial ATS Resources (as defined below) or (ii) specifically commissioned by ATS. The following works presumptively shall be considered Institutional Works: Courseware; computer software; and ATS Publications.

“Net Income” means gross proceeds, less any costs of licensing, sale, marketing, development, discounts, returns and taxes.

“Noncommercial” means that no direct payment is received for the use of the copyrighted work. Indirect payments, including, without limitation, speaking and teaching fees, shall not affect the Noncommercial status of a particular use.

“Non-institutional Work” means a work of authorship created without the use of Substantial ATS Resources. The following works presumptively shall be considered Non-institutional Works: Traditional Academic Works, Course Content and Research Material.

“Originator” means an individual or group of individuals who author(s) a Copyrightable work or, in the case of a Work Made for Hire, otherwise makes a substantive intellectual contribution to the work.

“Research Material” means a work of authorship created by an Originator as part of scientific or technical research during his or her employment by ATS.

“Substantial ATS Resources” means financial, material, personnel or other support beyond the level of common resources typically provided by ATS to an Originator in the course of employment. Ordinary use of commonly provided resources (such as libraries, offices, computers, salaries, classrooms, laboratories, secretaries and sabbaticals) shall not be considered Substantial ATS Resources.

“Traditional Academic Work” means a work created solely at the Originator’s own initiative for the purpose of scholarship and research, including, but not limited to: textbooks, other works of non-fiction and fiction, articles, monographs, speeches and other creative works, such as poems, musical works and other artistic works.

“Work Made for Hire,” under the Copyright Act, 17 U.S.C. §1 01, means:

(a) a work prepared by an employee within the scope of his or her employment; or

(b) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

III.       RIGHTS OF OWNERSHIP

  1. Institutional Works

Institutional Works shall be considered to be created within the scope of employment and to be Works Made for Hire with ownership vesting in ATS unless otherwise provided in this Policy. Courseware and software presumptively shall be considered to be Institutional Works unless created solely at the inspiration of the Originator, solely outside of authorized work hours and space and without the use of Substantial ATS Resources. Ownership of the Courseware is independent of any underlying Course Content contained in the Courseware or software. ATS Publications shall be considered Institutional Works in all circumstances, independent of the rights in any individual contributions.

  1. Non-institutional Works

Non-institutional Works, including Traditional Academic Works, Course Content and Research Materials, shall be considered to be created outside the scope of employment, and ownership will vest in the Originator who creates the work unless otherwise provided in this Policy. If a work of any of the above types is created at the initiation of ATS, under the direction of ATS and with the use of Substantial ATS Resources, then notwithstanding the general ownership rule set forth here, such works shall be owned by ATS as a Work Made for Hire.

  1. Works by Non-Employees

Under U.S. law, copyrights in works specially prepared for ATS by non-employees, such as consultants or subcontractors, are owned by their Originator(s) unless there is a written agreement to the contrary. Furthermore, as set forth in the definition of Work Made for Hire, such works created by non-employees may only be considered Works Made for Hire if they fall into one of nine enumerated categories. Accordingly, ATS requires there to be a written Work Made for Hire agreement between ATS and any non-employee retained to create Copyrightable subject matter for ATS, unless an authorized ATS administrator provides otherwise.

  1. RIGHTS OF USE
  2. Institutional Works
  3. Courseware and Software
  4. Noncommercial Use. An Originator shall have the following Noncommercial rights in any Courseware or software: the worldwide, nonexclusive, royalty-free, perpetual right to reproduce, publicly display or perform, distribute, make a derivative use of or otherwise use such work in any format now known or to be developed, as is necessary or convenient to the performance of teaching, lecturing, writing or research activities.

In the event that an Originator is deemed to own any Courseware or software created with the use of any ATS resources during his or her employment by ATS, ATS shall have the following Noncommercial rights in such work: the worldwide, nonexclusive, royalty-free, perpetual right to reproduce, publicly display or perform, distribute, make derivative use of or otherwise use such works in any format now known or to be developed, for the limited purpose of furthering the mission of ATS.

  1. Commercial Use. All rights to commercial use of Courseware or software shall be the sole right of the party deemed to own the work under Section 3 of this Policy, and commercial use by a party other than the copyright owner shall require the express written permission of the copyright owner.
  2. ATS Publications

ATS shall control all commercial and Noncommercial use of ATS Publications, and faculty shall be required to obtain written permission from ATS to use such works. This general rule shall not affect the Originator’s independent rights in any underlying contribution to an ATS Publication.

  1. Non-institutional Works
  2. Traditional Academic Works. An Originator who owns the copyright in a Traditional Academic Work shall control all commercial and Noncommercial use of such work, and ATS shall be required to obtain permission from the Originator to use such work.

In the event that ATS is deemed to own a Traditional Academic Work, the Originator of that work shall have the following Noncommercial right in such work: the worldwide, nonexclusive, royalty-free, perpetual right to reproduce, publicly display or perform, distribute, make a derivative use of or otherwise use such work in any format now known or to be developed, as is necessary or convenient for the performance of teaching, lecturing, writing or research activities.

  1. Course Content and Research Materials. ATS shall have the following Noncommercial rights in any Course Content or Research Materials: the worldwide, nonexclusive, royalty free, perpetual right to reproduce, publicly display or perform, distribute, make a derivative use of or otherwise use the work in any format now known or to be developed, for the limited purpose of furthering the educational objectives of ATS.

In the event that ATS is deemed to own any Course Content or Research Materials, the Originator of that work shall have the following Noncommercial rights in the work: the worldwide, nonexclusive, royalty-free, perpetual right to reproduce, publicly display or perform, distribute, make a derivative use of or otherwise use such work in any format now known or to be developed, as is necessary or convenient to the performance of teaching, lecturing, writing or research activities.

Any commercial use of Course Content or Research Material by a party other than the copyright owner, as defined in Section 3, shall require the express written permission of the copyright owner.

  1. LICENSING RIGHTS
  2. Licensing Decisions

The decision whether to license a Copyrightable work shall be made solely by the owner(s) of the work, as defined in Section 3. If there are multiple owners of a single work, each shall have the right to non-exclusively license the work as provided for under the Act, 17 U.S.C. § 204(a). If the licensing of any works covered by this Policy materially affects the exercise of any rights of use set forth in Section 4, the licensor shall provide reasonable notice to the affected parties.

  1. Distribution of Income
  2. Institutional Works.
  3. Originator’s Share. The Originator shall receive fifty percent (50%) of any Net Income generated from the sale, licensing or other use of an Institutional Work up to the first $100,000 of Net Income, and thirty-five percent 35% thereafter. If there are multiple Originators, the Net Income shall be divided equally among them absent a mutual written agreement to the contrary.
  4. ATS Share. ATS shall receive fifty percent (50%) of any Net Income generated from the sale, licensing or other marketing of an Institutional Work up to the first $100,000 of Net Income, and sixty-five percent 65% thereafter.
  5. Non-institutional Works.

Owners of Non-institutional Works have the right to retain full income generated from the use of their works, unless otherwise arranged with ATS.

  1. COPYRIGHT NOTICE AND USE OF THE ATS NAME
  2. Notice

The following form of copyright notice shall be used on all Institutional Works or any other works owned by ATS:

© [year of first publication] Asbury Theological Seminary. All Rights Reserved.

  1. Use of the ATS Name

Use of the ATS name in connection with a work, other than for the sole purpose of identifying the Originator as a faculty member, researcher, other employee or student affiliated with ATS requires the advanced written permission of an authorized ATS administrator. Furthermore, faculty members, researchers, other employees or students at ATS may not participate in the use of works or the ATS name that might give the impression of ATS sponsorship where there is none. If the name of ATS is to be used in connection with any works created under collaborative agreements with outside entities, other than to identify the Originator by his or her title at ATS, such agreements must be approved in advance and in writing by an authorized ATS administrator.

  1. ATS Permission

Any permission required from ATS under this policy shall be obtained from the Office of the President or a designated representative.

ADDENDUM TO THE ASBURY THEOLOGICAL SEMINARY COPYRIGHT OWNERSHIP AND CONTROL POLICY

This Addendum explains the Asbury Theological Seminary (“ATS”) Copyright Ownership and Control Policy (the “Policy”). The Policy was drafted to be consistent with the administration, faculty and staff views of copyright ownership and control at ATS. The central goals in promulgating the Policy include: (1) protecting administration, faculty and staff expectations with regard to ownership of copyrightable materials; (2) promoting the mission of ATS as set forth in the Policy preamble; (3) encouraging creativity and productivity by faculty and staff; and (4) encouraging continuing investment by outside funding sources.

This Addendum summarizes the key issues and background materials considered in drafting the Policy, including: the Copyright Act of 1976, 17 U.S.C. §101 et seq. (the “Act”), the Restatement on Agency and case law. First, the Addendum describes the default rules of copyright ownership that govern in the absence of the Policy, including an explanation of the “work made for hire” doctrine and the controversial “teacher exception.” Next, the Addendum describes the three-fold approach of the Policy, namely: (1) clarifying rights of ownership flowing from a definition of “scope of employment,” (2) providing “rights of use” rules and (3) setting forth licensing and income allocation rules.

Work Made for Hire and the Teacher Exception

The Act provides that an author initially owns the copyright in a work he or she creates. In the case of multiple authors with the intent to create a “joint work,” each author co-owns the work and is allowed to use it himself and non-exclusively license the work. Each author has a duty to equally share net profits with the co-authors.

The Act additionally categorizes certain works as “for hire,” in which ownership vests with an employer or hiring party, rather than the originator of the work. The owner of a “work made for hire” is considered the legal author of the work and reaps the benefit of ownership of the full copyright term, the shorter of 95 years from publication or 120 years from creation (as compared to a term of life of the author plus 70 years for works that are not “for hire”). It is important that ATS consider whether a work is “for hire”; if the law classifies a work as “for hire,” then terms of ownership and duration of copyright are dictated by the Act regardless of the intent of the parties. Even an explicit agreement between employer and employee that works prepared by the employee within the scope of employment will not be considered “works made for hire” would not be effective to move the works out of the “for hire” category.

The Act defines a work made for hire as follows:

A “work made for hire” is:

  1. a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. 17 U.S.C. § 101.

Although the Act provides that “a work prepared by an employee within the scope of employment” constitutes a work made for hire, the Act does not define employee or scope of employment, and, thus, the courts have been called upon to define these terms. In determining whether a person is an employee, the Supreme Court has turned to the law of agency. Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989). Following the Reid case, courts have referred to the same authority to set forth three standards to establish when an employee’s conduct is within the scope of employment: (1) it is the kind of work the employee is employed to perform; (2) it occurs substantially within authorized work hours and space, and (3) it is initiated, at least in part, by a purpose to serve the employer. Restatement (Second) of Agency § 228.

The difficulty in applying these standards in the educational environment stems from the

following: educational employment agreements often do not describe the work employees are to perform with a high degree of particularity, faculty members and other employees perform significant creative work outside of the office on their “own time,” and these individuals may create many works to serve their own purposes as opposed to those of the institution.

Under the controversial “teacher exception” view, some commentators and courts consider educators to be exempt from the “work made for hire” provision of the Act. Unfortunately, this view tends to be extreme and does not consider that certain educational works may be created within the scope of employment while others are not. The few instances where the courts have considered the “teacher exception” have produced mixed results: certain courts have bent over backwards to apply the exception on behalf of educators, although it appears to be contrary to the Act; other courts have strictly applied the “work made for hire” doctrine in favor of educational employers. Because of the ambiguous nature of the “teacher exception” under current law, we do not mention it in the Policy, and we recommend that ATS refrain from relying on it under any circumstance.

ATS Copyright Ownership and Control Policy

The Policy rejects both an overly inclusive approach, where ATS would be viewed as owning all faculty and staff works, and application of the “teacher exception,” where faculty members would be deemed to own all works they produced. Instead, the Policy is designed to (a) clarify the parties’ understanding of “scope of employment,” resulting in predictable ownership and (b) set forth clear rights of use which account for traditional works and new technology. This approach respects ATS’s interest in works without chilling creativity or curtailing productivity. By establishing royalty allocation for certain uses, the Policy is sensitive to the concerns of all parties regarding the commercial exploitation of creative works at ATS.

  1. Ownership

The Policy segregates copyrightable works into two broad categories, based on the amount of support ATS provides for their creation. First, “Institutional Works” are created with “Substantial University Resources” and are deemed to fall within the scope of employment. “Substantial University Resources” is defined to mean “financial, material, personnel or other support beyond the level of common resources typically provided by ATS.” Courseware (e.g., course videos and Internet materials), computer software and ATS Publications presumptively are considered Institutional Works. Thus, Institutional Works are owned by ATS.

Second, “Non-institutional Works” are created without “Substantial University Resources” and are deemed to fall outside the scope of employment. Traditional Academic Works (e.g., textbooks, articles and works of art), Course Content (e.g., lecture notes and tests) and Research Materials are presumptively considered Non-institutional Works. Thus, Non-institutional Works are owned by the respective individual Originator(s), as defined in the Policy.

Although the Policy sets forth presumptions with regard to copyright ownership, a party may argue, in specific circumstances, that a work deviates from the norm. For example, a professor might create digital Courseware solely at his or her own inspiration, solely outside of authorized work hours and space and without the use of Substantial University Resources. In this case, the professor would own the copyright in his Courseware.

  1. Rights of Use

The Policy establishes the “Rights of Use” to exploit copyrighted works under certain circumstances. In summary, the Policy provides the following Noncommercial rights of use: (1) Originators of Courseware, software, Traditional Academic Works, Course Content or Research Materials that are considered to be Institutional Works, may broadly use such works as necessary or convenient to the performance of normal teaching, lecturing, writing or research-so long as direct payment for the Courseware or software is not provided; and (2) ATS may use any Courseware, software, Course Content and Research Materials that are considered Non-institutional Works, for furthering the mission of ATS. All commercial exploitation requires the permission of the respective copyright owner(s), as defined in Section 3 of the Policy.

  1. Licensing Rights

The decision of whether to license a Copyrightable work is solely up to the owner(s) of the work as set forth in Section 3 of the Policy. The allocation of profits from the sale or license of Institutional Works is a business decision, which ATS may make in its sole discretion. We put forth the following allocation, as a suggestion: for Institutional Works, ATS agrees to pay the Originator(s) 50% of the first $100,000 of Net Income (as defined in the Policy) derived from such licensing or sale and 35% thereafter. For Non-institutional Works, the Originators who own the work will not be obligated to pay ATS any amount derived from licensing. We can discuss and amend these terms at your request. 

  1. Copyright Notice and Use of the ATS Name

This section sets forth the proper form of copyright notice and restrictions on the use of the ATS name by faculty and staff in connection with creative projects and programs. Additionally, all permissions are to be obtained from the Office of the President or a designated representative.