Academic studies are heavily dependent upon both the creation and use of copyrighted materials to drive discourse. Below you will find some resources that can help you with strategies to create and use these materials at Fuller.
If I write something and publish it, do I still have the right to use it in my classes and academic work?
Any author or creator of original work immediately owns the copyright to that work. Whether they keep it or not after the work is published depends precisely upon what agreements and or contracts they enter into with the publisher.
Intellectual Property Law expert and founding director of the Copyright Advisory Office at Columbia University, Kenneth Crews, has some advice for academics as they consider publishing their work:
STEP 1: Anticipate your needs and review your Agreement
Review your agreement carefully and ascertain whether it meets your desires and needs. Does it allow you to use your own work as you might plan or expect in the future? One of the most important provisions affecting your rights is the copyright license or transfer:
A license is a grant of rights from you to the publisher, and you retain all other rights including the copyright itself. This option is usually most beneficial for the author. It allows the author to retain maximum control over the work, while still permitting the publisher to meet its needs. A grant of an “exclusive” license, however, means that you cannot also exercise any of the rights granted to the publisher. Watch the details.
A transfer or assignment of the copyright to the publisher is a grant of all of the legal rights. The principal rights that you have are only those rights that are explicit and specified in the agreement. Under this option, the author is no longer the copyright owner. The author needs to consider whether the rights in the agreement are satisfactory.
Be especially watchful of a provision calling your work a “work made for hire.” That concept is an even broader relinquishment of rights by you.
Especially if the agreement provides for an assignment of the copyright or other broad rights to the publisher, you will want to reserve explicit rights of use for yourself. Such rights could include:
Reproduction and sharing in teaching, scholarship, or research;
Use of the content in subsequent publications and projects
Creation of related or “derivative” works, such as study guides or websites
The right to be credited as the author
Display or performance of images or audiovisual elements
Posting the work to your personal or university website
Depositing the work with digital repositories
STEP 2: Negotiate!
Do not hesitate to ask questions and negotiate. Publishers are interested in your work; otherwise they would not have asked to publish it. Working toward a better agreement—and fully comprehending its terms—can be critical. Take the time you need to understand the agreement and try to get any revisions you need.
Amendments to the publisher’s agreement may take place in two ways. One way to amend the agreement is to strike through unfavorable language and replace it with new language directly in the agreement. Another, perhaps easier, way is to supplement the agreement with a separate document that includes terms superseding any contradicting terms within the proposed agreement. Resources with suggested language and draft amendments are listed below.
On the other hand, if the publisher will not negotiate or will not grant the rights you need, you have to weigh your options. Are you prepared to find another publisher? Is this publishing opportunity important enough that you can accept the agreement? The decision will be a judgment call for the author in almost every situation.
STEP 3: Sign the Agreement
Be sure to obtain confirmation that your amendments to the agreement are received and accepted by the publisher.
STEP 4: Keep a Copy of the Agreement
Keep a copy of the agreement for your records. This step may be the most important. When questions arise about rights to use your work, the answer often lies in the agreement. Do not depend on the publisher to keep the copy. You need to keep your own copy in your permanent files. Copyrights last for many decades, and sometimes researchers have needed to find agreements from the 1930s and earlier. It cannot be repeated too often: Keep a copy of your agreement!
The eReserves service provided by the David Allan Hubbard Library is always available to investigate whether you need permission to use an item in your class and to secure permission if possible. When in doubt, submit a request to eReserves and we will do the leg-work. However, with a little forethought and negotiation, it is possible to reserve the rights to make use of your own work and publish it.
What is Creative Commons?
Copyright law was designed to balance the needs of those who produce creative works to benefit from them with the needs of society to benefit from them. By default, any creative work, as soon as it exists in a “fixed form,” is protected by copyright from any use that creates new copies, distributes, or hurts the market for that work (with a few exceptions). However, for some content creators, the default protection is more than they really want or need. Some creators are excited, even delighted to see their work read, seen, used, embraced, re-worked, remixed and adapted. In the era of the web, both the desire to allow others to make some uses of creative work without having to seek permission and the ease of doing so highlight a need for an alternative to the default copyright protection.
Creative Commons is a way of selectively and intentionally giving up some of the protections offered by the default position of copyright law. Creative Commons licenses allow content creators to grant specific licenses to any potential user of their work for the specific uses they are willing to give without the user having to obtain further permission.
For example, a person could record an album and release it with a Creative Commons license, allowing free sharing and use, provided that that use is:1. non-commercial (i.e., doesn’t generate revenue for the user)
2. with attribution (i.e., the artist’s name must be included with the work)
3. non-transformative (i.e., doesn’t change or alter the original work)
Creative Commons in Academics
The very process of academic research and discourse is predicated upon a great deal of free, unlicensed use and sharing. While much of this use has long been considered to fall under the exception in copyright law protections known as “fair use,” the fair use concept has been increasingly challenged by publishers and some copyright holders. The Creative Commons licenses allow content creators to be explicit about which uses they want to grant permission for others to make without requiring further permission, and which uses for which they still want to require users to obtain permission or license.
Making Use of Creative Commons
If you are interested in learning more about the licenses and how they might work for your creative or academic work, you can read more at creativecommons.org. There is also a creative commons search that allows you to find other works which have been released with Creative Commons licenses for use in your own presentations and projects, often without the need to secure further permission.
Frequently Asked Questions
Do I need to get permission to show a video or film in class?
For Traditional Live ClassesIf you meet the following criteria, you need not seek permission when showing the film
1. during the class’s scheduled time
2. at the class’s scheduled location
3. only to registered students
Such use described above has a long history of being allowed without the need for permission. The Association of Research Libraries (ARL) has a more detailed FAQ on how you can use copyrighted materials in traditional classrooms.
For Online Classes
The picture is much less clear for online classes. The TEACH Act and the DMCA seem to allow for a similar exemption for online courses; however, these are actively being challenged in court cases brought by video/film copyright owners against schools attempting to make such use.
If you have video/film content that is essential to your pedagogical goals, the two best things you can do to minimize the chances of infringing on copyright laws are:– to use the minimum amount necessary for your pedagogical purposes
– to use video/film content in a transformative way, in the context of discussion, commentary, or other pedagogical goals such that the film is no longer merely functioning as the work of art it was originally created to be, but is illustrating something you are teaching.
A much more detailed FAQ on making use of copyrighted materials in online classes is available from ARL. However, bear in mind that copyright online is a dynamically evolving landscape and is one of the first edges of our society’s laws to be disrupted by information technology.
Can I play copyrighted music at a public event?
Personal Use vs. Public Performance
When you move beyond playing music in the home with family and friends and into a public space, it stops being personal use and is considered public performance. Public performance is one of the rights protected by copyright law. In order to play music in a public space legally, you would need a license from the people owning the copyright (i.e., the rightsholders). One key exception to this is if the performance takes place in the context of learning or research in a face-to-face teaching environment.
Playing a CD or a mix from an mp3 player or someone’s iTunes library naturally involves so many artists, it’s obviously impractical to obtain permissions from each. Instead, there are three major entities that sell group licenses for their artists: SESAC, ASCAP and BMI. At present, Fuller does not purchase licenses from any of these, though we are investigating the costs involved.
While this law seems out of touch with how music is used and consumed, this is in fact the law and enforcement of copyright infringement has been and continues to be on the rise. This presents a significant risk to both the individual person infringing copyright law and the institution with whom the infringer is associated.
There are, however, alternatives. Jamendo indexes music licensed under an alternative copyright model called Creative Commons. Creative Commons allows artists to retain only those specific rights they wish to retain under copyright law and inform anyone who would like to use their work that they are not infringing if they do so.
What are the copyright implications for watching TV in the student center or hosting an event based around TV programming like the Superbowl or a streaming service like Netflix or Hulu?
Basically, most of the ways we use our TVs and movies at home are licensed in such a way that they assume that’s the way you’re going to use them when you buy the DVD/BR or purchase streaming access. That is, they are assuming a private, in-home use and all the limits that provides.
When we talk about showing a move in the Catalyst, we have moved out of a private, in-home setting. This means that much of the licensing that content providers have done to make copyright permissions something invisible to individual users is not in play. Copyright law requires a license for “public performance.” The Catalyst may not seem like a public space, but it is open to people walking in and watching a film in a way that a home is not.
There’s a clear precedent for public performance of TV broadcasts as they are tuned from over-the-air radio signals (i.e., broadcast networks) not infringing copyright law. This means that it may be legal to watch Thursday night comedies in larger settings.
The only exception to this is sporting events, particularly the NFL, as they have sued churches for “public performance” of their broadcasts of NFL events on screens larger than 55 inches. The NFL is within the limits of the law to sue, though they got so much bad press they have backed off a bit.
DVR / Timeshifting
After the NFL sued churches for showing the Superbowl, they received so much negative PR that they’ve backed off a bit. Still, we are understandably concerned that even though they say they will be less aggressive, there’s no guarantee since they’ve sued and won in the past. Nevertheless, it might be possible to show an NFL game if you are careful about not charging admission and making use of a single TV already in place.
Movies have their own set of restrictions. The license you receive for in-home use with the purchase of a DVD/BR doesn’t cover use in the Catalyst because the Catalyst is a public place. Licenses are available for purchase but require planning, money, and time for the copy licensed for public performance to arrive. Costs can be a few hundred dollars per film or higher, depending on how many people you expect to attend. Swank Motion Pictures has provided licenses in the past.