SNHU Copyright Policies

Prepared by The Copyright Task Force
Tosun Aricanli, Robert Craven, Daryl Dreffs, Ronald Epp (Chair), Aaron Flint, Tom Helm, Kathy North, Charles Outcalt, Scott Tierno, James Woodell

Preamble
Southern New Hampshire University (SNHU) abides by the provisions of the United States Copyright Act (Title 17 of the Untied States Code). Any person who infringes the copyright law is liable.

The following document was prepared at the request of the Vice President for Academic Affairs to better inform the University community of the complicated dimensions of copyright law. Copyright law itself is in flux as are the interpreters of the applicable statutes. This document is not legally binding and must be understood as a good faith effort by the Copyright Task Force charged with this responsibility to offer guidance to the University community.  This set of policies will be reviewed biannually in order to accommodate the changing legal environment and the development of University programs and curricular applications.

The SNHU catalog, student handbook, and employee handbook contain policies on academic honesty and network acceptable use wherein it is clearly stated that it is a violation to use the SNHU network for illegal purposes.  

1. Defining copyright

-The United States Constitution gives Congress the power “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”.  The copyright law of the United States (title 17 of the United States Code) grants copyright holders the exclusive rights of reproduction, adaptation, publication, performance and display (see section 106) subject to limitations, qualifications, or exemptions in sections 107 through 121.

Specifically, rights related to the use of copyrighted materials in the classroom are in section 110 (1), while section 110 (2) discusses the transmission of copyrighted works for educational use, thereby dictating how copyrighted works can or can’t be used in distance education classes. Section 110 (1) provides a fairly generous use of copyrighted materials in the classroom. It’s important to note that until the passage in 2002 of the Technology, Education, and Copyright Harmonization Act (TEACH) , however, the provisions of section 110 (2) severely limited those terms for use of copyrighted material in distance education (including use on educational web sites or course areas set up online for “hybrid” courses). See Section 3.

2. Digital Millennium Copyright Act

Many academics are well aware of the strictures and implications of the Copyright Act of 1976. At that time the main academic concerns focused on photocopying classroom handouts, course packets, and research materials. Higher education, like all of society,  has been challenged to respond to the rapid development of electronically accessible intellectual material—much of it copyrighted and easily shared. In response to these challenges, the Digital Millennium Copyright Act (DMCA) became law in 1998.

The DMCA imposes sharp restrictions on the electronic sharing of copyrighted material, and includes stringent sanctions for those who violate it. For example, online service providers are required by the DMCA to prohibit internet access for users who violate the DMCA’s terms three or more times. In a campus environment, in which the campus itself is the online service provider, such restrictions would make continued university affiliation extremely difficult. File sharers around the country, especially on college campuses, have become targets of the music industry in recent months, with some students forced to pay sizable fines to settle suits brought against them under the DMCA.

The University supports this document (www.loc.gov/copyright/legislation/dmca.pdf).

DCMA also makes the development of hardware or software that cracks digital copy-protection schemes illegal.  Other issues are currently under discussion including the Motion Picture Association of America proposed legislation that would add further restrictions to the DCMA, including a ban on the concealment of the origin or destination of an electronic communication,  a ban on use of devices that could be used to view or steal copy-protected material on the internet, and a requirement that users get permission to view or download copyrighted material on any device.

3. Technology, Education, and Copyright Harmonization Act (TEACH)

With regard to distance education and other computer-mediated course delivery, SNHU supports and complies with the 2002 Technology, Education, and Harmonization Act

(thomas.loc.gov/cgi-bin/query/z?c107:S.487.ES:).

Among the requirements of the law are provisions that state that the institution must:

(A)  Have policies, provide information about said policies, and give notice that the resources may be protected by copyright;

(B)  Apply technological measures that reasonably prevent recipients from retaining the works beyond the class session and further distributing them; and

(C)  Not interfere with technological measures taken by copyright owners that prevent retention and distribution.

The designated SNHU copyright officer will support efforts to comply with these conditions. 

4.  What is protected by copyright law?

The copyright law of the United States covers original works of authorship fixed in any tangible medium of expression.  Protected works include literary works; musical works, including any accompanying words; dramatic works, including any accompanying music; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works. Material posted on the web and e-mails are also protected.

Because copyright law is designed to protect the right to copy such works, it’s easy to see how the issues would become more complex when dealing with the digital classroom. In order to use copyrighted works online a copy has to be made, and it’s easy to subsequently create additional copies.

The TEACH act did revise section 110 (2) to give distance educators more leeway in using copyrighted materials. However, even the revised section does say that some copyrighted materials (mainly audiovisual and dramatic musical works) have to be used only as clips (i.e.,  “reasonable and limited portions”).

The Copyright Clearance Center, Inc.  (http://www.copyright.com/) provides information and services for anyone seeking to secure permission to reproduce copyrighted work. 

5. What is exempt from copyright law?

The copyright law does not protect any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.  Copyright does not apply to works in the public domain or work produced by the US Government.

6. Fair Use

Fair use is covered in chapter 1, section 107 of title 17, United States Code.

(www4.law.cornell.edu/uscode/17/107.html).  Fair use is one of the limitations placed on a copyright holder’s exclusive rights.  It is reprinted here in Sections 6 & 7 in its entirety:

“Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such 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, is not an infringement of copyright.” 

7. Determining Fair Use:  Four Factors

[United States Code, Title 17, ch. 1, sec.107 continues].  In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-

(A)   the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(B)   the nature of the copyrighted work;

(C)   the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(D)   the effect of the use upon the potential market for or value of the copyrighted work.  The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”

8. Acceptable and Prohibited Use of Classroom Resources

Guidelines have been developed with the goal of clarifying what may be copied under the US copyright law.  It is important to note that although they have been endorsed by Congress, they do not carry the force of law.  In addition, the guidelines listed below represent the minimum standards for educational copying. The agreement refers only to copying from books and periodicals, and it is not intended to apply to musical or audiovisual works.

(A) Single Copying for Teachers

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

i.. A chapter from a book;

ii. An article from a periodical or newspaper;

iii A short story, short essay or short poem, whether or not from a collective work;

iv. A chart, graph, diagram, drawing, cartoon or picture from a book, periodical, or newspaper;

(B) Multiple Copies for Classroom Use

Multiple copies (not to exceed in any event more than one copy per pupil in a course) may be made by or for the teacher giving the course for classroom use or discussion; provided that these three conditions are fulfilled:

     i.  The copying meets the tests of brevity and spontaneity as defined below;

     ii. Meets the cumulative effect test as defined below; 

     iii.Each copy includes a notice of copyright.

Clarifying the concepts aforementioned (items i to iii), “brevity  refers ( in different media) to:

      (a) Poetry: (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.

      (b) Prose: (1) Either a complete article, story or essay of less than 2500 words, or (2) an excerpt from any prose work of not more than 1000 words or 10% of the work, whichever is less, but in any event a minimum of 500 words. [Each of the numerical limits stated in “a" and "b" above may be expanded to permit the completion of an unfinished line of a poem or of an unfinished prose paragraph.]

     (c) Illustration: One chart, graph, diagram, drawing, cartoon or picture per book or per periodical issue.

     (d) "Special" works: Certain works in poetry, prose or in "poetic prose" which often combine language with illustrations and which are intended sometimes for children and at other times for a more general audience fall short of 2500 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 such special work and containing not more than 10% of the words found in the text thereof, may be reproduced.

Correspondingly, spontaneity refers to:

      (a) The copying is at the instance and inspiration of the individual teacher, and

      (b) The inspiration and decision to use the work and the 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.

Similarly, cumulative effect refers to

     (a) The copying of the material is for only one course in the school in which the copies are made.

     (b) 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.

     (c) There shall not be more than nine instances of such multiple copying for one course during one class term. (The limitations stated above shall not apply to current news periodicals and newspapers and current news sections of other periodicals.)

(C)    General Prohibitions

Notwithstanding any of the above, the following shall be prohibited:

(i) Copying shall not be used to create or to replace or substitute for anthologies, compilations or collective works. Such replacement or substitution may occur whether copies of various works or excerpts there from are accumulated or reproduced and used separately.

(ii) There shall be no copying of or from works intended to be "consumable" in the course of study or of teaching. These include workbooks, exercises, standardized tests and test booklets and answer sheets and like consumable material.

(iii) Copying shall not:

(a) substitute for the purchase of books, publishers' reprints or periodicals;

(b) be directed by higher authority;

(c) be repeated with respect to the same item by the same teacher from term to term.

(iv) No charge shall be made to the student beyond the actual cost of the photocopying.

       (D)  Coursepacks

In most cases, copyright permission needs to be secured for resource materials that are packaged collectively in what is regarded as a “coursepack.” Limit course pack materials to:

·        single chapters

·        single articles from a journal issue

·        several charts, graphs or illustrations

·        other similarly small parts of a work

Is the responsibility of the faculty member to

(i)                  include any copyright notice on the original

(ii)                attach appropriate citations and source attributions

(iii)               obtain copyright permissions for each term they use a coursepack.    

Although library owned material may be placed on reserve without seeking copyright permission, coursepacks will only be put on reserve when the appropriate library forms are signed indicating that the instructor has obtained copyright clearance.

Alternatives to print coursepack are available and should be considered.  Commercial vendors exist that will put together an electronic coursepack and obtain the copyright clearance for you; students are then charged fees to access the electronic coursebook.  One such vendor is Xanedu.com.

(E)  Workbooks, tests, exercises

According to the copyright guidelines endorsed by the U.S. Congress, the copying of consumable works (i.e., workbooks, test booklets, and exercises) is not permitted.

Finally, the copying of “the same item by the same teacher from term to term” is not permitted.  When using material repetitively, copyright permission should be obtained for each term the material will be used.

9. Acceptable and Permitted Online Classroom Use of Copies from Books and Periodicals .

The guidelines listed above (in Section 8) should not be used for determining permitted use of copies from books and periodicals in the online classroom, including fully-online courses, “hybrid” courses, and course web sites.

Section 110 (2), as revised under the TEACH Act, specifically excludes from coverage: works primarily produced or marketed for in-class use in the digital education market; works that the instructor knows or has reason to believe were not lawfully made or acquired; or textbooks, coursepacks, and other materials typically purchased by students individually.

The law also excludes any works that are not used as part of “mediated instructional activities.”  In other words, any works that an instructor would not normally use as part of a class-time lecture. While the TEACH Act provides for the use of works an instructor might display during a class (e.g., music or movie clips), it does not cover materials that the instructor expects students to study, read, listen to, or watch on their own time “outside of class.”

The Fair Use statutes (see section 7) provides best guidance with regard to whether instructors can post such materials in a digital classroom environment.

10.  Non-Print Media :  Images and Their Reproductions in the Face-to-Face Classroom

(A) Fixed Images: The copyright law concerning the fair use of images and their reproductions is complex. Several organizations have promulgated guidelines to help interpret fair and/or legal use, but there is disagreement among them. 

The situation is complicated by the fact that an image may have several layers of copyright:  the original object (an oil painting, for example), the photograph of that underlying object (e.g. the image of the painting that we see in a book or on the Internet), and the publication that contains the image of the underlying object (e.g. the magazine that contains the photograph of the painting). 

According to sources, the principles of fair and/or legal use governing images involve many factors, which may include but are not limited to the nature, age and medium of the underlying object, the nature of the photograph of the object, and the availability of commercial images of the object.

The Visual Resource Association (VRA) website contains two documents that contain guidelines. 

The VRA “Image Collection Guidelines: The Acquisition and Use of Images in Non-Profit Educational Visual Resources Collections” (www.vraweb.org/copyright/guidelines.html) and its “Copy Photography Computator” (www.vraweb.org/computator/welcome.html) deal with issues of fair and/or legal use of images.  However, the user should be advised that these guidelines are not legal advice, and that alternative interpretations of the law also exist.

(B) Video and Film Presentations

.Copyright is a property right. The copyright holder of a videotape or film program has a specific set of four rights. To:  

·        Make or authorize copies

·        Prepare derivative works

·        Distribute copies

·        Authorize public performances or displays

To perform a film and video at a place open to the public or at any place where a substantial number of people outside of a normal circle of a family and its social acquaintances are gathered.

This provision under limited conditions does allow you to use a videotape in class even if it hasn't been cleared for public performance. However, this provision applies only to a classroom teacher. The teacher is allowed to do this only if all   five of the  following requirements are met. The performance must be:

(a)    Given by an instructor or a pupil

(b)   Take place at a nonprofit educational institution.

(c)    Be part of a regular instructional activity. (Limited to when instructor and students are in a face-to-face situation.)

(d)   Take place in a classroom or a similar place devoted to instruction.

(e)    Utilize a lawfully made copy. (A copy made under the authority of the copyright holder.)

A face-to-face teaching exemption provision rules out recreational or extra-curricular use of a videotape.

The Audiovisual Center will perform off-air taping for faculty based upon the "Kastenmeier Guidelines" which apply only to "off-air" taping when done by a nonprofit educational institution. More recently, most televised programming is not “broadcast” but distributed via cable or satellite.  What is applicable to broadcast programs is that an off-air recorded broadcast program may be shown once ten consecutive school days after the broadcast date. The videotape may be used a second time if educational reinforcement is necessary. The videotape may be retained for an additional 35 calendar days and may only be shown for evaluation purposes for purchase of long-term retention rights.

An instructor must request taping. Both the A/V and instructor must be aware of the ten day cut-off date. After 45 days the program must be erased.

These guidelines (from the House Report on piracy and counterfeiting amendments [H.R. 97-495, pgs. 8-9] were developed to apply only to off-air recording by nonprofit educational institutions.

(a)    A broadcast program may be recorded off-air simultaneously with broadcast transmission (including simultaneous cable retransmission) and retained by a nonprofit educational institution for a period not to exceed the first forty-five (45) consecutive calendar days after date of recording.

(b)   Upon conclusion of such 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.

(c)    Off-air recordings may be used once by individual teachers 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) consecutive school days in the forty-five (45) day calendar day retention period. "School days" are school session days -- not counting weekends, holidays, vacations, examination periods, and other scheduled interruptions -- within the forty-five (45) calendar day retention period.

(d)   Off-air recordings may be made only at the request of and used by individual teachers, 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 teacher, regardless of the number of times the program may be broadcasted.

(e)    A limited number of copies may be reproduced from each off-air recording to meet the legitimate needs of teachers under these guidelines. Each such additional copy shall be subject to all provisions governing the original recording.

11. Non-Print Media: Images and their Reproduction in the Online Classroom

The TEACH Act (see Section 3) made use of non-print media as possible in the distance classroom as it was in the face-to-face classroom. While the law does significantly expand the rights of distance educators to use these media, some important qualifications must be made:

(B)  Other performances, including those excluded above, can be transmitted—but only in “reasonable and limited portions”;

(C)  Displays of any work comparable to typical face-to-face displays, including all still images, can be transmitted; and

(D)  The transmitted performance or display must be: a regular part of systematic mediated instructional activity; made by, at the direction of, or under the supervision of the instructor; directly related to and of material assistance to the teaching content; and for and technologically limited to students enrolled in class (i.e., generally this means password protected so that only students in the class may access it, but where possible technological copy-protected provisions should also be made).

Southern New Hampshire University recognizes the unique copyright and intellectual property rights pertaining to computer software. The University strives, in good faith, to uphold these rights by complying with all rules and regulations relating to licensing, deployment, and use of software across campus.

SNHU encourages faculty, staff, and students to honor their ethical and legal responsibilities to abide by all software licensing rules and regulations and to refrain from all illegal software copying and distribution. Any illegal or unethical behavior will be addressed according to the standards published in the catalog, student handbook, and employee handbook  (i.e., the Academic Honesty, Personal Computer Software, and Network Acceptable Use policies).

SNHU has implemented technological measures to restrict and discourage the downloading and sharing of copyright material, specifically movies and music files. In addition, SNHU Has acquired plagiarism software (Turnitin.com) which is accessible to faculty who are suspicious about the integrity of student research.

A Packeteer bandwidth management product is installed that allows SNHU to restrict and/or deny access to certain internet-related services. All internet traffic entering or leaving the university passes through this device, but traffic internal to SNHU does not pass through the Packeteer; consequently, this implies that students on campus can and probably do share copyright files amongst themselves with impunity.

File sharing services (e.g.,  Kazaa, Gnutella and Morpheus) are identified by the Packeteer device and any attempts to use these services are discarded. Anyone on campus trying to download a file via one of these services will be denied such access. Additionally, anyone off-campus trying to upload a file from SNHU via one of these services also will be denied.

SNHU is committed to enforcing and obeying all copyright laws to the extent possible as well as complying with all associated legal responsibilities. The University takes these steps to avoid legal entanglements for both the University and potentially for our students. Huge fines are being levied by the legal system against students and others who have been identified as using file-sharing services on the Internet. Blocking such downloads will also improve the performance of the Internet on campus and help the community complete their academic tasks.

13.   Copyright Continuing Education and Enforcement

Notwithstanding these guidelines and the responsibilities attached to anyone who makes use of copyright materials for educational and non-educational purposes, the University honors the DMCA requirement that a designated agent of the institution receive complaints of copyright infringement. That officer will also assist the campus community in applying in good faith the aforementioned policies and perform other tasks as well.  To that end the copyright officer will:

1. Recommend to the VPAA  biannual revisions to these policies.
2. Educate faculty, staff, and students on copyright and fair use.
3. Respond in a timely manner to questions regarding copyright law and interpretation.
4. Maintain and update records of agreements, registrations, and licenses across University departments.
5. Disseminate publicity and appropriate copyright warnings on or near photocopying equipment.
6. Provide a web presence accessible from the University site directory for FAQ, links to copyright information, etc.
7. Collaborate with copyright officers elsewhere to keep abreast of evolving standards.
8. Partner with a contracted attorney specializing in copyright law to resolve complex issues of legal interpretation and enforcement.
9. Be provided with a sufficient level of funding to carry out these tasks.
10. Forward to the VPAA credible allegations regarding misapplication of these guidelines.
11. In exceptional cases, will facilitate a discussion between legal counsel and the person requiring professional intervention.