Copyright Guidelines

Copyright falls under the umbrella of Intellectual Property presented in Article I, Section 8, of the U.S. Constitution, which discusses it as one of the roles and powers of Congress: “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 Act of 1976 (Title 17 of U.S. Code) and its amendments spell out the rights of copyright holders and identifies exemptions, including the Fair Use Doctrine, which allow for the use of protected works under certain circumstances.

In order for a work to be protected, it must 1) be original and include an element of creativity; and 2) it must be fixed in a tangible means of expression. However, registration of the work with the U.S. Copyright Office or including a symbol © or other copyright notice are not conditions of copyright, as copyright is automatically fixed once placed in a tangible format. There are, however, benefits to registration and placing notice(s) on a work.

PROTECTED WORKS	NOT PROTECTED WORKS (FREE TO USE)
Literary works Musical works Dramatic works Choreographed works Motion pictures, other audio-visual Sound recordings Architectural works Visual works Visual art Computer programs	Facts Common property information, such as calendars Symbols, slogans, names, etc. Public Domain -Most U.S. Government works -U.S. works published before 1923 -Certain other 20th Century works (consult a -public domain timeline)

Copyright holders are granted 5 exclusive rights that include the rights to:

• Reproduce (copy) the work
• Make derivative works
• Distribute, sell, rent and/or lease copies
• Perform the work publicly
• Display the work publicly

Fair Use is one of several limitations to the rights of copyright holders provided within the law to make protected materials available for use by others, ensuring our ability and democratic right to freely exchange and transform ideas. Title 17 USC §107: Limitations on exclusive rights reads: Use … for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include the —

1. Purpose and character of the use (is the use of a commercial nature or is it for nonprofit educational purposes);
2. Nature of the copyrighted work (is it factual or creative);
3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole;
4. Effect of the use upon the potential market for or value of the copyrighted work.

When can you apply fair use? Fair Use is analyzed on a case-by-case basis. To determine if your intended use of a work is fair, you must balance the use based on each of the (4) factors above. If your responses weigh in favor of fair use, then you may use the material without obtaining permission from the copyright holder. If your responses weigh against fair use, then you are best advised to obtain permission for the use. The American Library Association’s Fair Use Evaluator and others available online can help you think through a fair use analysis.
Well-established guidelines indicate that repeated use of the same materials may tip the balance against fair use. If this is the case, you should seek copyright clearance for each subsequent use of the materials.

These steps below are recommended if you need to seek permission to use a protected work. If you need assistance, please contact the college’s copyright team at copyright@bcomnm.org.
1st: Select the work. Select back-up materials if possible. Look for materials in the public domain or that may have a Creative Commons license.
2nd: Consider if permission is required. Ask yourself if fair use applies. Consider or find out whether there are there any other exemptions that may apply.
3rd: Obtain permission. Identify the copyright owner. Be aware that the person who created the work is not always the copyright owner. You may need to contact the owner(s) directly by phone, e-mail, or letter.

• Permissions may often be secured through the Copyright Clearance Center or other collective rights agency. Payment of fees are likely to be required.
• It is important to document your communications and any permissions received regardless of who granted the permission.

4th: If you can’t obtain permission. Return to fair use and analyze the risk; asking for guidance is recommended. Consider replacing the work with a back-up, changing your plan of use, or creating a new or transformative work. Don’t think that you are “free and clear” to use a protected work because you didn’t get a response from the copyright holder.

According to 17 USC §504, an infringer of copyright is liable for either 1) Actual damages and any lost profits; or 2) Statutory damages of not less than $750 or more than $30,000 per work, as determined by the court. Willful infringement can result in a liability of up to $150,000 for each separate act of infringement. If a “good faith fair use defense” proves successful in court, statutory damages may be reduced to not less than $200. There are also “additional damages” that may come into play.
Although you can still be held liable for copyright infringement, whether or not you were aware that you were violating the law, penalties will be much more severe if you knew you were violating and chose to do it anyway.
Burrell Students, Faculty, and Staff Please review the College’s Copyright Compliance Policy B5041. Anyone suspected of copyright violations may be reported, anonymously if preferred, to the Compliance Officer through an online incident report form. Students, faculty, and staff who are found in violation of College Policies are subject to appropriate disciplinary action including termination or involuntary withdrawal from the College. Anyone found liable for civil and/or criminal copyright infringement may be responsible for any monetary damages suffered by the College due to such violations of the policy or related law or regulation.