and Research Issue No. 5

Effective Date: 11/18/2010

Review: May 1 E5Y

01. POLICY STATEMENTS

01.01 This UPPS is designed to help members of the university community understand and comply with the Copyright Act, Title 17, United States Code.

01.02 This policy applies to course materials used in classroom teaching. It also applies to electronic delivery of course materials through the university’s learning management system, Web site, or other communication devices.

02. LIMITATIONS OF THIS POLICY

02.01 This UPPS does not cover other aspects of the copyright law. Other summaries are found in:

UPPS No. 01.04.20, Copyright Guidelines for Musical Performances on Campus

UPPS No. 01.04.21, Copyright Guidelines for the Texas State Albert B. Alkek Library

UPPS No. 01.04.23, Copyright Guidelines for Showing Movies on Campus

UPPS No. 01.04.24, Policy on Copyrighted Computer Software

02.02 This UPPS is a summary of the Copyright Act, Title 17, United States Code, and is not intended as a detailed guide to the copyright law.

(For more in-depth guidelines, refer to University of Texas’s copyright crash course http://copyright.lib.utexas.edu/). Advice regarding the applicability of the copyright law to specific situations may be sought from the university attorney.

02.03 The university encourages the creation and use of appropriate instructional materials that have a creative commons license as described at http://creativecommons.org. The university further encourages the use of electronically accessible articles and other research materials licensed by the Alkek Library and made available through the library’s Web site.

02.04 All general inquiries as to the content of the copyright law should be addressed to the Library Reference Department.

03. COPYRIGHT PRIVILEGES AND THE DOCTRINE OF FAIR USE

03.01 Generally, the owner of a copyright has the exclusive rights to do and to authorize any of the following:

a. Reproduce the copyrighted work in copies or audio-visual works;

b. Prepare derivative works based upon the copyrighted work;

c. Distribute copies or audio-visual works of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

d. In case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audio-visual works, to perform the copyrighted work publicly; and

e. In case of literary works, including the choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audio-visual work, to display the copyrighted work publicly.

03.02 Notwithstanding the provisions of Section 03.01, 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. 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.

04. PROCEDURES FOR FAIR USE OF COPYRIGHTED COURSE MATERIALS FOR INSTRUCTION RESEARCH

04.01 The fair use provision of the law is, of necessity, general and is not susceptible to either precise definition or automatic application. Each case must be considered on its own merit. The guidelines in Sections 04.02 through 04.07, however, may be considered as the minimum standards of fair use by educators.

04.02 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:

a. A chapter from a book;

b. An article from a periodical or newspaper;

c. A short story, short essay or short poem;

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

04.03 Multiple copies for classroom use or delivered electronically via the university’s learning management system or other communication devices: Multiple copies (not to exceed more than one copy for each student in a course) may be made by or for a teacher of that course for classroom use or discussion, provided that:

a. The distribution meets the tests of brevity and spontaneity as defined in Sections 04.04 and 04.05 below;

b. The distribution meets the cumulative effect test as defined in Section 04.06 below; and

c. Each course material includes a notice of copyright.

04.04 Test of Brevity:

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 2,500 words, or

2) An excerpt from any prose work of not more than 1,000 words or 10% of the work, whichever is less, but in any event a minimum of 500 words.

NOTE: Each of the numerical limits stated in a. and b. above may be extended 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 may be copied.

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 2,500 words in their entirety. Such "special works" should 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, therefore, may be reproduced.

04.05 Test of Spontaneity:

a. The distribution must be 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 must be so close in time that it would be unreasonable to expect a timely reply to a request for permission.

04.06 Test of Cumulative Effect:

a. The distribution 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 each semester; and

c. There shall not be more than nine instances of such multiple distributions for one course during each semester.

NOTE: The limitations stated in b. and c. above shall not apply to current news periodicals and newspapers and current news sections of other periodicals.

04.07 Notwithstanding any of the above, the following are prohibited:

a. Distribution 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 of excerpts therefrom are accumulated or are reproduced and used separately.

b. There shall be no distribution of material from works intended to be "consumable" in the course of study or of teaching. These include workbooks, exercises, standardized tests and text booklets and answer sheets and like consumable material.

c. Distribution shall not:

1) Substitute for the purchase of books, publisher's reprints or periodicals.

2) Be directed by higher authority.

3) Be repeated with respect to the same item by the same teacher from term to term.

d. No charge shall be made to the student beyond the actual cost of photocopying or digitizing.

05. REVIEWERS OF THIS UPPS

05.01 Reviewers of this UPPS include the following:

Position Date

University Attorney May 1 E5Y

Associate Vice President for May 1 E5Y

Academic Affairs

Associate Vice President for May 1 E5Y

Research and Federal Relations

Associate Vice President for the May 1 E5Y

University Library

06. CERTIFICATION STATEMENT

This UPPS has been approved by the following individuals in their official capacities and represents Texas State policy and procedure from the date of this document until superseded.

University Attorney; senior reviewer of this UPPS

Special Assistant to the President

President