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Employees of the District shall comply with the provisions of the United States Copyright Law. Subject to certain
specific exceptions, as stated blow, the owner of a copyright has the exclusive rights to reproduce, distribute,
perform or display the copyrighted work, or authorize such reproduction, distribution, performance or display by
others.
Fair Use
An exception to the exclusive rights enjoyed by the copyright owners is the doctrine of the fair use. The fair use of
the copyrighted work for purposes of teaching scholarship or research is not an infringement of copyright. The
following factors shall be considered in determining fair use:
A. The purpose and character of the use, including whether the use is of a commercial nature or for non-profit
educational purposes.
B. The nature of the copyrighted work.
C. The amount and importance of the portion used in relation to the copyrighted work as a whole.
D. The effect of the use upon the potential market for or value of the copyrighted work.
Performances and Displays
A further exception shall be performance or display of a work by instructors or students in the course of face-to-
face teaching activities in a classroom or other similar place devoted to instruction.
Guidelines
Employees who wish to use copyrighted print material and sheet music should review the guidelines set forth in
the "Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions" and "Guidelines for
Educational Uses of Music". Those guidelines establish a minimum guaranteed fair use, not a maximum. Any
determination regarding whether a use that exceeds the guidelines is a fair use shall rest with an appropriate court
of law. A copy of the guidelines for District Employees can be found on the School District's website.
Prohibitions
Notwithstanding the fair use guidelines, the following shall be prohibited:
A. Copying of print materials and sheet music to create or replace or substitute for anthologies, compilations or
collective works. This prohibition against replacement or substitution applies whether copies of various works
or excerpts are accumulated or reproduced and used separately.
B. Copying of or from works intended to be "consumable" in the course of study of teaching. These works
include workbooks, exercises, standardized tests, test booklets, answer sheets and like consumable
materials.
Copying shall not substitute for the purchase of books, publishers' reprints or periodicals; be directed by higher
authority; or be repeated with respect of the same item by the same teacher from term to term.
No charge shall be made to the student beyond the actual cost of the photocopying.
Additional prohibitions regarding the use of music are:
A. Copying for the purpose of performance, except as permitted under the "Guidelines for Educational Use of
Music".
B. Copying for the purpose of substituting for the purchase of music, except as permitted under the "Guidelines
for Educational Use of Music".
C. Copying without inclusion of the copyrighted notice that appears on the printed copy.
Broadcast Programs
Broadcast programs, including commercial and public television and radio, shall not be videotaped or tape recorded
for reuse without permission, except within the following guidelines:
A. A broadcast program may be recorded off-air simultaneously with broadcast transmission (including
simultaneous cable re-transmission) and retained by a District college for a period not to exceed the first forty
-five (45) consecutive calendar days after date of recording. At the end of that retention period, off-air
recordings shall be erased or destroyed.
B. 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 during the first ten (10) consecutive school
days within the forty-five (45) calendar day retention period. "School days" are actually days of instruction,
excluding examination periods.
C. Off-air recordings shall be made at the request of any used by individual teachers and shall not be regularly
recorded in anticipation of requests. No broadcast program shall be recorded off-air more than once at the
request of the same teacher, regardless of the number of times the program is broadcast.
D. 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. All copies of off-air recordings shall include the copyright notice on the broadcast program
as recorded.
E. 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 to determine whether or not to include the broadcast program in the
teaching curriculum and shall not be used in the District for student exhibition or any other non-evaluative
purpose without authorization.
Off-air recordings need not to be used in their entirety, but the recorded programs shall not be altered from their
original content. Off-air recordings shall not be physically or electronically combined or merged to constitute
teaching anthologies or compilations.
References
1 17 U.S.C. 102(a) (reciting all types of works except for computer programs). See also 17 U.S.C. 101
(defining computer program in the copyright statute) in view of Apple Computer v. Franklin Computer
Corp., 714 F.2d 1240, 1253 (affording copyright protection to various computer programs).
2 17 U.S.C. 102(b).
3 17 U.S.C. 105.
4 17 U.S.C. 106.
5 See 17 U.S.C. 501 (stating in part "Anyone who violates any of the exclusive rights of the copyright owner…
is an infringer"); 17 U.S.C. 502 (providing for injunctions in cases of copyright infringement); 17 U.S.C. 503
(allowing injunctions for copyright infringement); 17 U.S.C. 504 (providing for actual damages, statutory
damages, and profits for copyright infringement); 17 U.S.C. 505 (providing for attorney's fees for copyright
infringement); 17 U.S.C. 506 (providing for criminal offenses for copyright infringement);
6 17 U.S.C. 107.
7 17 U.S.C. 109.
8 17 U.S.C. 108.
9 See e.g. 17 U.S.C. 107 (describing the "Fair Use" exception, and particularly noting that "the factors to be
considered include") (emphasis added). Thus, regarding "fair use", courts use a balancing approach instead
of a bright-line test.
10 17 U.S.C. 106.
11 17 U.S.C. 110(1).
12 17 U.S.C. 110(1).
13 17 U.S.C. 110(4).
14 Nimmer on Copyright 2.06(A)
15 17 U.S.C. 107.
16 See http://www4.law.cornell.edu/uscode/17/107.notes.html (linking to H.R. Rep. No. 94-1476, 94th Cog., 2d
Sess. (1976) from which this section is adapted). Specifically, this excerpt is taken from the portion of this
bill with the heading "Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational
Institutions with respect to books and periodicals". See id. H.R. Rep. No. 94-1476 is included along-side 17
U.S.C. 107 (entitled "Limitations on Exclusive Rights: Fair Use") in the "Historical and Revision Notes"
comments. See id.
17 Id. (referring to Comments of 17 U.S.C. 107).
18 Id. (referring to Comments of 17 U.S.C. 107).
19 Id. (referring to Comments of 17 U.S.C. 107).
20 Id. (referring to Comments of 17 U.S.C. 107).
21 Id. (referring to Comments of 17 U.S.C. 107).
22 Id. (referring to Comments of 17 U.S.C. 107).
23 Id. (referring to Comments of 17 U.S.C. 107).
24 Id. (referring to Comments of 17 U.S.C. 107).
25 Id. (referring to Comments of 17 U.S.C. 107).
26 Id. (referring to Comments of 17 U.S.C. 107).
27 Id. (referring to Comments of 17 U.S.C. 107).
28 Id. (referring to Comments of 17 U.S.C. 107).
29 Id. (referring to Comments of 17 U.S.C. 107).
30 Id. (referring to Comments of 17 U.S.C. 107).
31 Id. (referring to Comments of 17 U.S.C. 107).
32 Id. (referring to Comments of 17 U.S.C. 107).
33 Id. (referring to Comments of 17 U.S.C. 107).
34 Id. (referring to Comments of 17 U.S.C. 107).
35 http://www.lib.jmu.edu/org/mla/Guidelines/ (linking to the Music Library Association's "Guidelines for Off-Air
Recordings of Broadcast Programming for Educational Purposes").
36 Id. (citing Music Library Association's "Guidelines for Off-Air Recordings of Broadcast Programming for
Educational Purposes.")
37 Id. (citing Music Library Association's "Guidelines for Off-Air Recordings of Broadcast Programming for
Educational Purposes.")
38 17 U.S.C. 107.
39 See http://www4.law.cornell.edu/uscode/17/107.notes.html (linking to H.R. Rep. No. 94-1476, 94th Cog., 2d
Sess. (1976) of which this section is verbatim). Specifically, this excerpt is taken from the portion of this bill
headed "guidelines for educational uses of music". See id. H.R. Rep. No. 94-1476 is included along-side 17
U.S.C. 107 (Entitled "Limitations on Exclusive Rights: Fair Use") in the "Historical and Revision Notes"
comments. See id.
40 Id. (referring to Comments of 17 U.S.C. 107).
41 Id. (referring to Comments of 17 U.S.C. 107).
42 Id. (referring to Comments of 17 U.S.C. 107).
43 Id. (referring to Comments of 17 U.S.C. 107).
44 Id. (referring to Comments of 17 U.S.C. 107).
45 Id. (referring to Comments of 17 U.S.C. 107).
46 Id. (referring to Comments of 17 U.S.C. 107).
47 Id. (referring to Comments of 17 U.S.C. 107).
48 Id. (referring to Comments of 17 U.S.C. 107).
49 See 17 U.S.C.A. 107 (West 2002) (also known as the "Fair Use Doctrine"); 17 U.S.C.A. 117 (West 2002)
(allowing an owner to make a copy of a computer program in certain limited situations); 17 U.S.C.A. 109(b)(2)
(West 2002) (also known as the "First Sale Doctrine") (allowing nonprofit libraries to lend computer providing
a warning of copyright is affixed to the program (37 C.F.R. 201.24, "Warning of copyright for software lending
by nonprofit libraries")).
50 Id. 17 U.S.C. 107.
51 These guidelines are adapted from the American Library Association's Model Policy of 1986 (available at
http://www.ifla.org/documents/infopol/copyright/ala-1.txt) (last accessed Oct. 17, 2005). See also 17 U.S.C.
117.
52 Id. (referring to ALA's Model Policy of 1986 and 17 U.S.C. 117).
53 Id. (referring to ALA's Model Policy of 1986 and 17 U.S.C. 117).
54 Id. (referring to ALA's Model Policy of 1986 and 17 U.S.C. 117).
55 In other words, even if a party is not liable for copyright infringement, that party may still be liable for breach of
contract. As such, State law would apply to the contract claim to the extent that State law is not pre-empted
by Federal copyright law.
56 See previous note.
57 Regarding so-called "shrink wrap" license agreements, compare ProCD v. Zeidenberg, 86 F. 3d 1447, 1449
(7th Cir. 1996) (enforcing shrink-wrap licenses), with Step-Saver Data Sys., Inc. v. Wyse Tech., 939 F.2d 91,
93, 99 (3rd Cir. 1991) (invalidating shrink-wrap licenses under the UCC).
58 The Association of Research Libraries (ARL) provides guidelines for negotiating license agreements for
computer software, available at http://www.arl.org/scomm/licensing/index.html. See also, supra note 64
(discussing shrink-wrap license agreements).
59 See generally 17 U.S.C. 108 (commonly referred to as the statutory exemption for libraries). See also
Nimmer 8.03 (discussing the statutory exemption for libraries).
60 Such a violation may be a breach of contract even if it is not a copyright violation.
61 17 U.S.C. 108(a)(1).
62 Nimmer 8.03(A)(1).
63 17 U.S.C. 108(a)(2).
64 17 U.S.C. 108(a)(3).
65 17 U.S.C. 108(a)(3). See also Nimmer 8.03(D).
66 17 U.S.C. 108(i).
67 17 U.S.C. 108(b).
68 17 U.S.C. 108(b)(1).
69 17 U.S.C. 108(c).
70 17 U.S.C. 108(c).
71 These guidelines are adapted from the American Library Association's Model Policy of 1986 (available at
http://www.ifla.org/documents/infopol/copyright/ala-1.txt) (last accessed Oct. 17, 2005). This model policy
was drafted by Mary Hutchings Reed and Debra Stanek. Mary Hutchings Reed is a partner in the law firm of
Sidley & Austin, Chicago, and counsel to the American Library Association. Debra Stanek will graduate in
June 1986 from the University of Chicago Law School. As of 2005, this Model Policy has not been corporated
into the copyright statute. See 17 U.S.C. 108. In particular, the current statutory library exemption does not
extend to musical works, to pictorial, graphic or sculptural works, or to motion pictures or other audiovisual
works, except that news-related audiovisual works may fall within the exemption. 17 U.S.C. 108(i).
72 Id. (referring to the ALA's Model Policy of 1986).
73 Id. (referring to the ALA's Model Policy of 1986).
74 Id. (referring to the ALA's Model Policy of 1986).
75 Id. (referring to the ALA's Model Policy of 1986).
76 Id. (referring to the ALA's Model Policy of 1986).
77 17 U.S.C. 109(b)(2)(A).
78 37 CFR 210.24.
79 37 CFR 210.24.
80 37 CFR 210.24.
81 See 17 U.S.C. 101 (extending copyright protection to any "original work of authorship" that is "fixed in a
tangible medium of expression") in view of Fiest Publications v. Rural Telephone Service Co., 499 U.S. 340
(1991) (deeming that "originality" is the relevant standard for copyrightability, and dismissing the "sweat of
the brow" test).
82 See generally, 17 U.S.C. 110(2).
83 Id.
84 17 U.S.C. 110(2) (third paragraph after clause (10)).
85 17 U.S.C. 110(2)(C).
86 See 17 U.S.C. 110(2).
87 17 U.S.C. 110(2)(C)(ii).
88 17 U.S.C. 110(2)(D)(ii).
89 See 17 U.S.C. 110(final paragraph).
90 17 U.S.C. 110(2)(D)(ii)(II).
91 17 U.S.C. 110(2)(D)(I).
92 Id.
93 See supra notes 44-51.
94 See generally 17 U.S.C. 110(2) (commonly referred to as the TEACH Act).
95 17 U.S.C. 110(2).
96 17 U.S.C. 110(2).
97 National Law Journal (Feb. 10, 2003) (available at http://www.goodwinprocter.com/publications/
hildebrand_klosek_02_10_03.pdf)
98 17 U.S.C. 110(2).
99 17 U.S.C. 112(f)(1).
100 17 U.S.C. 110(2).
101 17 U.S.C. 110(2) (second paragraph after clause (10)).
102 17 U.S.C. 110(2).
103 17 U.S.C. 110(2) (second paragraph after clause (10)).
104 17 U.S.C. 112(b).
105 See 17 U.S.C. 110(2).
106 See 17 U.S.C. 110(2).
107 See 17 U.S.C. 110(2).
108 Id. (referring to "CONTU Guidelines on Photocopying Under Interlibrary Loan Arrangement").
Approved/Adopted: July 13, 2009 |
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