Copyright

As a scholarly community, the University of Vermont is committed to fostering teaching, learning, research, and the pursuit of knowledge.  An important aspect to furthering this mission involves using the works of others in the University’s academic setting while still respecting their intellectual property rights within the boundaries of copyright law.  Apart from its interests in avoiding liability and resulting financial penalties both for the University itself and for those in the University community, the University strongly believes that respecting copyrights and adhering to copyright law is vital to maintaining the balance between the free flow of ideas and the advancement of the public interests served by copyright law. It believes as well that its members should exercise all affordances permitted by copyright law in general and the Fair Use doctrine in particular to promote and disseminate information for the purposes of teaching, scholarship, and creative activity.

This policy is intended to help faculty, students, and staff understand when they can legally use copyrighted works created by others in their teaching, research, and scholarly activities. It offers guidance on:

1. When the use of a third-party copyrighted work qualifies as an acceptable use under copyright law (such as Fair Use); and
2. When permission from the copyright holder is required—unless the University already holds a license that covers the intended use.

Questions about who owns works created by members of the University community should be directed to the University’s Intellectual Property Policy.

This policy applies to all University of Vermont faculty, staff and students.

Copyright law protects original works fixed in a tangible medium—such as books, articles, films, music, software, photographs, paintings, websites, and more—for a limited time. Copyright protects expression, but not the underlying ideas, facts, procedures, or concepts themselves.

Copyright owners hold exclusive rights to reproduce, distribute, publicly display or perform, and create derivative works based on the work.. Using a copyrighted work in a way that violates any of these rights without permission or a legal exception—such as Fair Use—may constitute copyright infringement.

Infringement can lead to serious financial consequences. Individuals (and potentially the University) may be held liable for statutory damages of up to $30,000 per infringement—or up to $150,000 in cases of willful violation—regardless of whether actual harm occurred.

Some works are not protected by copyright, such as works created by the U.S. Government and works in the public domain. As a general rule, works published before certain dates^[1] are now freely available to use and are in the public domain.  Unpublished works may or may not be in the public domain depending on the date of the author’s death. Copyright law includes several exemptions that allow the use of copyrighted materials for educational purposes. These include:

1. Use in face-to-face classroom teaching
2. Use in certain distance education settings
3. Library-specific exemptions

In addition, many creators voluntarily offer their work under open licenses-such as Creative Commons-which allow non-commercial use, sharing, and in some cases, modification.

The University library maintains licenses for a wide range of materials that can be used in teaching and research. These licensed resources are available to the University community and may cover many of the materials needed for academic work. Such licenses include access to the resources listed here.

If you're unsure whether a specific work is covered by an existing University license, please contact Howe Acquisitions at (802) 656-8350 for assistance.

^[1] This date will change over time. Consult http://www.copyright.gov for information

In addition to the exceptions stated above, copyright law recognizes that certain uses of copyrighted materials are deemed lawful even without permission from the copyright owner. The U.S. Copyright Act provides that “the fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”

Unfortunately, there are no bright line tests or reliable rules for determining whether or not a particular use of another’s copyrighted materials is a fair use, even if it is for scholarship or research purposes.  The determination is highly fact specific, and therefore must be made on a case-by-case basis.  Section 107 of the U.S. Copyright Act provides four non-exclusive factors that should be considered when determining if a given use of a copyrighted work is fair:

• The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
• The nature of the copyrighted work;
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 
• The effect of the use upon the potential market for or value of the copyrighted work.

All four factors above are considered when determining if a particular use is fair, but copyright law does not specifically limit an analysis to these four factors. Other factors can be considered, depending on the particular use. The University of Chicago has developed useful checklist for conducting a Fair Use analysis. A court’s determination that a use of a copyrighted work under one set of circumstances is fair or not does not automatically mean that a similar use under a different set of circumstances would result in the same conclusion. 

If the University does not have a license covering the proposed use, and after completing the fair use analysis, you believe that your proposed use is unlikely to be a fair use, it still might fall under the other statutory exemptions discussed below such as the face-to-face teaching exemption or the TEACH Act.  If no exemptions apply, permission must be obtained from the copyright owner before using the work as provided in the section below. 

Note that a Fair Use analysis may not be needed for uses covered by one of the numerous University licenses. See Procedures below on how to obtain permission to use copyrighted material. 

Owning a physical item-such as a book, DVD, or other media-does not mean owning the copyright to the content it contains. Under the first sale doctrine, the owner of a lawful physical copy is permitted to lend, resell, or otherwise dispose of that specific copy. However, this right does not extend to activities that are reserved to the copyright holder, such as:

1. Making copies or reproductions
2. Publicly displaying or performing the work
3. Creating derivative works

The transfer of a physical item does not include the transfer of copyright. Users must still follow copyright law when using the content of that item beyond what the law allows for physical ownership.^[1]

^[1] This issue regularly arises in the case of letters, the content of which might be desired for use in a scholarly work; even if you have access to the letter e.g. through its recipient, it is the author of the letter (or their heirs) that owns copyright in the content.

Copyright law includes an exemption that allows instructors to perform or display copyrighted materials during face-to-face classroom teaching at nonprofit educational institutions. This means, for example, that showing a full-length film in class to support instruction is generally permitted under the law.

However, this exemption is limited to performance or display only. It does not allow for:

1. Copying the work
2. Distributing copies to students
3. Uploading the material to course websites or online platforms

Any use beyond in-class performance or display must comply with other copyright provisions, such as Fair Use or licensed access.

The TEACH Act extends certain copyright exemptions to accredited, nonprofit educational institutions offering mediated online or distance learning. It allows the performance or display of copyrighted materials to students officially enrolled in a specific course-without requiring permission from the copyright holder.

To qualify for this exemption, the following conditions must be met:

1. The material must be part of instructor-led instructional activity and directly related to the course content.
2. The use must occur as part of a class session and under the direction or supervision of the instructor.
3. Access must be limited to enrolled students.
4. Technological protections must be in place to prevent students from retaining, copying, or sharing the material beyond the class session.

This exemption does not allow for distributing full copies of works or uploading entire materials to course sites for unrestricted access. If you have questions regarding the TEACH Act, please see the following link: http://guides.lib.utexas.edu/copyright/teachact. 

For course packs, you should determine if the materials (1) are in the public domain, or (2) comply with Fair Use. If (1) or (2) does not apply, you should seek permission from the publisher to reprint.  To learn about the many works included in licenses obtained by the University, please contact Print and Mail Center, (802) 656-2960.  

Note that repeat use of copied or digitized material pursuant to a license from semester to semester is permitted, but it is important that the responsible instructor check each semester to make sure that the terms of the applicable license have not changed.

For materials posted to a course/learning management system, you should determine if the materials (1) are in the public domain, or (2) comply with Fair Use. If (1) or (2) does not apply, you should seek permission from the publisher to reprint.  

To learn about the many works included in various licenses obtained by the University, please contact Howe Acquisitions, (802) 656-8350.  If you need to request permission to use a copyrighted work, please contact Howe Reserve Department, (802) 656-2134, Howe.Reserve@uvm.edu.   

Faculty may ask the Libraries to place copies of books, articles, and supplemental materials on reserve, in print format. The Libraries will conduct a Fair Use analysis on any materials submitted for physical reserves and will, upon request, make electronic reproductions of Libraries-owned materials for faculty to upload to their course management sites, in accordance with Fair Use guidelines. See:  Course Reserve Copyright - About - Policy - Course Reserve Copyright Guidelines - UVM Libraries at UVM Libraries

The Conference on Fair Use Guidelines issued guidelines in 1997 under which educators may incorporate portions of lawfully acquired copyrighted works when producing their own, live, educational multi-media presentations. These guidelines, while not part of the copyright law, are generally followed by the courts. Note, however, that these guidelines do not apply in the cases of presentations that are available to the public online or sold commercially.  Note also that a court has recently held that these guidelines do not apply to e-reserves.  These guidelines provide that content may be included where the multi-media presentation includes:

1. No more than ten percent, or three minutes of a motion based work, whichever is less;
2. No more than ten percent and in any event no more than thirty seconds of a song or video;
3. No more than ten percent of a text; and 
4. Use of photographs and illustrations provided that no more than ten percent or fifteen images emanate from the same source, and no more than five images from any one artist or photographer.

The use of film clips and other media in on-line courses is not strictly limited by the guidelines. A Fair Use analysis may favor use of larger portions. Use of images or other media on websites or in on-line learning materials must be consistent with fair use and restricted to that amount that is necessary for the educational purpose.  Access to such sites and ability to download or otherwise reproduce the materials should be limited wherever feasible.  Attribution to the source of such materials should be included.  A course website and/or other electronic educational sites must contain a clear statement that images or media available through the site are protected by copyright and are available only for the educational purpose of the site and may not be downloaded or distributed. Materials posted to a course website.  

Streaming media licenses have been acquired for many media sources. For a list of titles, please contact UVM Libraries Media Resources, (802) 656-1947, media.library@uvm.edu    Film - Find + borrow - Film - UVM Libraries at UVM Libraries

The University holds licenses for a wide range of copyrighted materials, including journal articles, databases, textbooks, and other resources listed here.  

If the University does not have a license to use the copyrighted work, or if one of the exemptions described above does not apply, then permission to use the copyrighted work must be obtained.  A permission request can usually be sent to the publisher or author of the work.  

If you believe that you need to request permission to use a copyrighted work, or if you have questions about the process, please contact Howe Reserve Department, (802) 656-2134, Howe.Reserve@uvm.edu. 

Students may not record lectures by audio or video without the consent of the course instructor.  If permission is granted, students agree to only use these recordings for personal, educational use.  Students are not allowed to post the recordings online or distribute the recordings.

Any student who may require lectures to be recorded for disability-related reasons should contact the Student Accessibility Services office, A170 Living/Learning, (802) 656-7753.

Requests to use works for which the University has copyright ownership should be directed to Office of the General Counsel at  general.counsel@uvm.edu.

1. Provide A Link. Pointing others to copyrighted works is preferable, as it does not create a copy of the content on a University server.  
2. Be Careful When Downloading. Just because a work is posted online does not mean that the copyright owner has granted permission to use the work. Even if the original of that work is in the public domain, copyright of the digital version is held by the person or entity responsible for digitizing the original work.
3. Be Careful When Uploading. Use of third-party material in a work may be acceptable within the classroom and in our course/learning management system, but posting such material on the open web on your website or in a blog may raise copyright concerns.

Training will be provided on an as-needed basis as determined by the Approval Authority or the Responsible Official.

Questions concerning the daily operational interpretation of this policy should be directed to the following (in accordance with the policy elaboration and procedures):