675.000 - Copyrights/Patents
It is the policy of Clark College to comply with the United States Copyright Act of 1976 as amended and by the Digital Millennium Copyright Act of 1998. Ownership and copyright of materials and products developed at the College will be governed by the negotiated Agreement.
The College prohibits the unauthorized duplication, distribution, or use of materials of any copyrighted materials by students, faculty, or other employees. Authorization may be secured by specific exemption in the copyright law such as Section 107 fair use, licenses, agreements, or written permission from the copyright holders. All employees who act outside of these constraints assume full responsibility and liability.
Rights of Creators: Copyright
Copyright is a form of legal protection for authors of original works, including literary, dramatic, musical, artistic, and other intellectual property. Section 106 of the Copyright Act generally gives the owner of copyright the exclusive right to do, and to authorize the following:
- Reproduce copies of the work
- Prepare derivative works
- Distribute copies of work by sale, rental, lease or lending
- Publicly perform the work
- Publicly display the work
Ownership and Patents
The following policy applies to administrative, exempt, and classified staff of the College. The CC/AHE Agreement provides similar procedures for the faculty; see Article VII, Section F.
All written materials, including but not limited to, software programs, audio visual materials, and products developed by an author/producer who is compensated and/or reimbursed by the College for the work, prepares the work within the scope of employment for hire, or consumes goods/services purchased by the College, becomes the property of the College. The College may exercise all rights and privileges of ownership.
Ownership of products created under a contract, grant, or other agreement between the College and a third party may be specified in the agreement.
The author/producer using College resources for development, who wishes to market the material commercially, must submit prior to the development an approved budget from which he/she could reimburse the College for production costs. All such transactions must be negotiated by means of a Copyright/Ownership Agreement with the president or designee.
The Copyright/Ownership Agreement is initiated by the author/producer. This request must be dated and signed by the president of the College or designee prior to development. If this agreement is not requested, the College may exercise all rights and privileges of ownership including the marketing of the materials/product and the granting of copyright permission at the discretion of the president.
The author/producer and the College may share both the costs and the rights and privileges of ownership when appropriate. All such transactions must be negotiated with the president or designee by means of a Copyright/Ownership Agreement. All written materials, audio visual materials, and products developed by an employee on his/her own time, without incurring cost to the College, are deemed to be the property of the employee. Use of this property by the College is accomplished by standard procedures through publishers or negotiated agreements with producers. If an instructor specifies his/her published material for a Clark College class, see Administrative Procedure 417.032. Students, as creators, retain copyright to their own works.
Rights of Users: Fair Use
The "fair use" doctrine is a legal principle which limits the exclusive right of copyright owners. In some cases, faculty, staff, and students who wish to use copyrighted works for non-commercial educational purposes may do so without seeking authorization from the copyright owner. Not all educational uses are fair use.
Section 107 of the Copyright Act sets forth the four fair use factors:
- Purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
- Nature of copyrighted work.
- Amount and substantiality of portion used in relation to the copyrighted work as a whole.
- Effect of use on the potential market for, or value of, the copyrighted work.
Copyright law and fair use is complex. Use of copyrighted materials should be determined on a case-by-case basis. The more clearly each factor favors the intended use, the more likely fair use is applicable.
Individual copying for personal use is generally considered fair as long as it is less than a single copy of an article, short poem, or small portion of the work as a whole. However, fair use cannot be applied universally. For example, copying a tiny portion of certain works even for non-profit scholarship may not be considered fair use.
To determine whether the use falls under the fair use doctrine, conduct an analysis. See Fair Use Evaluator – http://librarycopyright.net/resources/fairuse/index.php.
Uses: Education and Research
Instructors are responsible for reviewing their own course content for copyright compliance.
Performance and display of copyrighted materials for instruction is explicitly allowed in a face-to-face classroom by the Section 110(1) of the U.S. Copyright Act. This exception does not apply to online or distance learning, educational photocopying in a classroom, or to digital course readings. Licensing, permission, or a determination of fair use should be sought in these instances.
The Director of Risk Management or the Dean of Libraries, eLearning, Tutoring & Faculty Development is able to provide assistance with determining whether or not a proposed use falls within the fair use exception, however the ultimate responsibility for the proposed use rests on the individual.
Uses: Social Media
Posting copyrighted materials online is subject to the same laws including the fair use exception. Employees should not post anything unless the College has a clear right to use all the content. Give credit to the author, owner, or rights holder, and make sure the College has the right of use with attribution before posting.
College employees must also respect individual privacy rights. Employees should obtain copyright releases for all materials protected by copyright from the creators, or indemnification from the entity for which the material is to be posted; and also obtain personality right releases or “model releases” for each image (including video) of a person who may have a potential claim to such a right, or indemnification from the entity for which the material is to be posted.
Copyright Permission letter (Sample) – http://library.clark.edu/sites/default/files/fm/doc/copyright_sample_permission_letter.docx
There are limited exemptions from the requirement to obtain consent before the use of a photograph or video of a person, including where there is “insignificant, de minimis, or incidental use,” see RCW 63.60.070.
Uses: Video and Film
Possession of a film or video does not confer the right to show the work. The copyright owner specifies at the time of purchase or rental the circumstances when a film or video may be shown.
Use in the Classroom
The Copyright Act, Section 110(1) contains an exemption from the performance right for instructional activities in a physical classroom. The “face-to-face” “exemption is subject to the following:
- Works must be shown as part of the teaching activities;
- Works must be shown by students, instructors, or guest lecturers;
- Works must be shown in a classroom or other school location devoted to instruction (i.e. "a studio, a workshop, a gymnasium, a training field, a library, the stage of an auditorium itself, if it is actually used as a classroom for systematic instructional activities;"
- Works must be shown in a face-to-face setting or where students and teacher(s) are in the same general area;
- Works must be shown only to students and educators;
- Work must be shown using a legitimate copy with the copyright notice included.
Use outside the classroom
The classroom exemption does not apply to "performances in an auditorium or stadium during a school assembly, graduation ceremony, class play, or sporting event where the audience is not confined to members of a particular class." In these cases permission or public performance rights must be sought. Fees may not be collected, even when the group has obtained public performance rights.
Uses: Computer Software
See Administrative Procedure 455.015
Consequences of Copyright Infringement
When the College receives proper notification of copyright infringement, it will remove or disable access to the allegedly infringing material and may begin disciplinary procedures including terminating the accounts of repeat infringers.
When a College employee receives a request to do something in the course of their job that they believe is in violation of copyright law and College policy, they should submit the request to their supervisor for written approval. Department administrators are encouraged to require evidence of copyright compliance or a good faith determination.
When necessary an ad hoc Copyright Committee will meet to review and determine a course of action. The schedule is determined as copyright issues arise. The membership will be composed of a representative for each of the following departments: Libraries, Communications & Marketing, Risk Management, Information Technology Services, and Bookstore, as well as one faculty representative. Additional departments, such as eLearning, may be requested to participate as appropriate. The Director of Risk Management is responsible for initiating committee meetings.
- Review copyright questions and make recommendations to the College.
- Review the implementation of Administrative Procedure 675.000 Copyright/Patents.
- Assist in identifying educational needs of the College’s employees related to compliance with copyright policies and regulations, and to advise the College on appropriate ways to address those needs.
- Arbitrate disputes.
Revised Policy/Procedure Approved by Executive Cabinet
August 20, 2013