Policies and Procedures for Fair Use of Copyrighted
Material
at Wayne State University School of Medicine
Introduction
In light of recent legislation regarding the use of electronic means for
the delivery of educational material (Teach Act), a committee comprised
of School of Medicine faculty, staff and administration has reviewed these
regulations with the intent of acquainting faculty members of any changes
that may affect the method or manner in which they intend to transmit such
materials. In addition, we have included current interpretations regarding
the use of copyrighted materials in print format such as lecture notes
and a review of the meaning of “Fair Use” as it applies to
our frequent inclusions of others works in our lecture, seminar, small
group, etc. presentations and lecture notes.
While copyright law has for some time expressly
allowed reasonable use of copyrighted materials in face-to-face teaching
settings, there was no guidance as to the permissible use of those
materials in other settings; hence the Teach Act was passed in November
2002. Many of the educational issues involving digital reproduction focus
on distance-learning applications, which may not currently apply to the
School of Medicine. However, there are certain ramifications of the
Teach Act that we must be aware of related to computer use of archived
teaching materials provided for student review purposes. This will be discussed
in greater detail later in this document.
An issue that we faced early in our discussions
was the length of time review materials should be made available to students
on Blackboard or E-Lab. The curriculum in Years I & II is such that
courses build on one another. The Pathophysiology program culminating in
Year II represents the final and most important integrating mechanism in
the Basic Science curriculum. The opportunity to review materials from
earlier in the curriculum that directly impact the Pathophysiology program
is one argument for keeping course postings on our web site(s). A second
and more important factor that we needed to consider was the comprehensive,
integrated USMLE Step I exam that our students are required to pass in
order to continue in Year III. Most of our Year II students will have taken
this exam by June 30th of each year. We proposed defining a class as extending
from the beginning of the formal instructional period, first week of August,
until June 30th of the next year. This suggestion was discussed with the
University’s Office of the General Counsel. Course directors who
believe there is a strong justification to provide review materials to
students outside of the more traditional calendar dates of their teaching
program due to, for example, a uniform test requirement, may exceed the
length of time materials remain accessible, but in no event should such
e-access extend beyond the end of the academic year. Several safety mechanisms
are already in place and others will be installed that insure only those
for whom the material is intended will have access to the web site(s).
Notes for Faculty: It is the Medical School’s
intent to provide streaming videos of most if not all lectures in Year
II and some in Year I and audio recordings for all Year I & II lectures.
It is agreed that the principal reason for recording lecture presentations
is to facilitate (enhance) student learning. Therefore, we are including
here information to assist faculty in understanding how material will be
utilized and the limitations that will govern its use.
The
plan is that lecture presentations (see above) will be recorded for streaming
presentation on the Medical School web site. Prior to any recording, each
faculty member will be given the opportunity to sign a release form that
gives permission for the Biomedical Communications program to proceed with
the taping (video/audio) of their lecture(s). Any procedures necessary
for taping will be minimally intrusive to the lecturer. Faculty who decline
taping will not be penalized by the school. And language addressing this
issue will appear in the student curriculum guide in order to discourage
disfavor by students.
The
course directors are responsible for distributing and collecting the
release (permission) forms. The forms will be filed with Biomedical Communications.
The
recording (video and/or audio) is subject to the University Copyright Policy
and will not be assigned to a third party.
The
SOM does not intend to use the recorded in evaluation of the individual
for merit, promotion or tenure unless specifically requested by the individual.
As
indicated in the introduction, we have permission to post presentations
to the school web in the form of streaming videos, Power Point presentations,
audio files where they may remain available for review until the close
of the academic session (June 30th of any year) at which time it will be
removed. However, any faculty member is free to place other limitations
on the availability of their materials.
The
posted material is password protected, non-downloadable and only available
to those students currently enrolled in the appropriate year, such as Year
II. If any material to be posted is original or contains no third party
copyrighted items, you can request that said material be made available
for downloading by students (charts, graphs).
All password procedures are handled by the School of Medicine Department
of Biomedical Communications. In addition, distribution of CDs of lecture
handouts and current lecture presentations will generally not occur. It
is understood that any posted materials are specifically for the purpose
of student review over internet or intranet. Appropriate notification of
the copyrighted contents of any such postings will be included.
Guidelines for the use of copyrighted materials in the classroom
and printing of lecture notes:
In this section we will address the use of materials presented in lecture,
demonstration, etc. and the use of materials incorporated in lecture notes/
handouts for use in class.
In addition to the provisions of the U.S. Copyright law dealing with classroom
teaching situations (17 U.S.C. 110), the relevant legal requirements of
use of copyrighted materials in education are set forth at 17 U>S.C.
107, the so-called Fair Use” test. The law provides that if a proposed
use of material constitutes fair use under the test then no permission
from the copyright holder is needed. The test consists of four factors:
(i) purpose of the use: the law favors educational, non-profit
uses over commercial uses; (ii) nature of the work used:
fair use analysis favors using non-fiction, non-dramatic works; amount of
the use: less is better; (iv) effect on the potential market for
the original work: does the proposed use compete with sales?
Lecture Presentations: Copyright law allows
fairly broad use of copyrighted material that a presenter may choose when
addressing an audience in the traditional lecture, seminar, small-group
type of presentation. These types of presentations are referred to as the “brick
and mortar” venue. It is generally not necessary to obtain permission
from authors, textbook publishing houses or other individuals prior to
a presentation, unless the lecture is comprised substantially of the work
of someone other than the speaker or otherwise does not meet the four-factor
test for fair use. In the event, however, that the presentation is transmitted
by any (electronic/digital) means to a distant site, there would be additional
restrictions on the use of third party materials (see below).
Lecture Notes: With regard to lecture notes
and handouts that contain third party copyrighted material, we list below
several guidelines that should be followed.
The use of digital media such as compact discs (CD roms) as lecture handouts
is not permitted, as they usually contain copyrighted material (images,
text) that is digitally recorded and reproduced. On the other hand, if
all of the material on the media is original (wholly generated by you),
you may use the media by contacting Biomedical Communications.
Guidelines for producing lecture notes and handouts:
- Make
no more than one copy for each student, and if the material you are copying
contains a copyright notice, include it.
- There
are no restrictions on the reproductions of facts.
- Text,
as it appears in lecture notes, is often not totally our own. In as much
as some personal intellectual investment has occurred, we are free to
use others thoughts without restriction.
- Verbatim
quotes should be acknowledged with footnotes or a reference page at the
end of the notes.
- Illustrations
taken from texts, atlases or journal articles can be used as needed,
although some discretion should be exercised. For example: It is not
advisable to incorporate an entire text chapter’s worth of illustrations
in the notes for a single lecture. Choose some and find additional sources
for others if possible. The use of illustrations from required texts
generally is not a problem. Out of print (and otherwise unavailable)
texts used for illustrations may be an even better source in that lack
of access to such texts weighs in favor of a determination that the use
of the copies constitutes fair use. Where possible, reference the source(s)
of illustrations with footnotes or on the last page of the notes.
One of
the issues related to “Fair Use” is
that utilizing copyrighted material does not deny revenue to an author
or publisher. It is therefore important to avoid reproducing large quantities
of materials from single sources.
- Reproducing
illustrations from your own collection of text books, departmental
holdings or medical library texts (all considered to be legally obtained)
is advisable.
- If
the illustrations already are available in digital format and the pictures
will eventually be posted on the school’s web site as part of a streaming
video or power point presentation, every effort must be made to obtain
the digital source and utilize it for your illustrations. In other words,
the Teach Act prohibits re-digitizing previously digitized images. Medical
library staff will help you in determining if digitized images are available.
Use of Others’ Copyrighted Works in Distance
Education
At Wayne State University School of Medicine
Faculty, Staff, and Student Guidelines
The administration at Wayne State University School of Medicine considers
that faculty exercising their rights of fair use of others’ works,
and the creation of their own original teaching materials are the best
approaches to developing Distance Education programs. Distance Education
and/or electronic transmission of teaching programs and conferences (web
sites, servers, streaming media, etc.) raise concerns of "public performance.” Copyright
law distinguishes between what can be performed in the classroom and what
can be transmitted. To facilitate our teaching efforts, the SOM administration
is implementing guidelines for use of materials and indicating when you
should seek permissions, licenses, or other alternatives. These guidelines
are designed to protect our institution; it’s faculty, staff and
students from the potential dangers of litigation.
These guidelines focus on activities related to our various distance education
programs that are distributed via WSUSOM’s websites, and servers. Also
included is the physical media that is distributed from the Self-Instruction
Center, and other official WSUSOM sanctioned systems.
In general, the concern is that the use of others’ works, transmitted
via servers or distributed by other means, may violate one or more of the
original owner’s rights to control public display of their copyrighted
materials. Wayne State University School of Medicine, through the
Department of Biomedical Communications, will provide the appropriate management
of educational programs placed on our servers for medical students, residents,
Biomedical Science graduate students, and others, if our staff develops
the original programs.
In addition to the Fair Use Test discussed above, the recently passed
Technology, Education and Copyright Harmonization (“TEACH”)
Act applies to use of copyrighted materials in educational situations other
than face-to-face settings.
As part of the WSUSOM educational system, it is recommended that you consult
with Biomedical Communications staff for assistance in making determinations
about the fair use of others’ works in your teaching programs. If
your proposed use seems too risky or is clearly not fair use, they will
assist you getting permission through the WSU library system, refer the
matter to WSU Office of the General Counsel, or produce new original media.
University policy generally provides that WSU will defend faculty and
staff in the event of a claim arising as a result of the good faith performance
of the employee’s job. In the case of copyright infringement claims,
adherence to these guidelines and any license agreements that apply to
copyrighted materials serves as evidence of that good faith.
Guidelines for Distance Education Programs that include the fair
use of others’ work apply to:
(i)The live or delayed transmission of distance education conferences,
classes, instruction, or review materials via closed circuit television,
videoconferencing, streaming media, websites, and servers; and (ii) the
analog or digital distribution of instruction materials recorded on videotape,
audiotape, CD, DVD, and other media types that is checked out from and
returned to the Self-Instruction Center or other official WSUSOM sanctioned
distribution systems.
N.B. The following points particularly pertain to web postings of educational
material at WSUSOM.
1). The rule of thumb for distance education is: use only small
parts for a limited time and restrict access. Additionally, consider
keeping your regular classroom teaching media within the same guidelines
that apply to distance education, to assure compliance if it is placed
on line. When obtaining a limited license for the use of another’s
work in a classroom setting, attempt to obtain expanded permissions that
consider the broader requirements of distance education.
2). Material should be transmitted at the direction of and under
the supervision of the course instructor, and should be directly related
and of material assistance to the teaching content of the transmission.
3). Materials should only be accessible for the amount of time needed
to accomplish the purposes for which they are being used, and should always
be removed by the end of the class term. For year one and two medical students,
all distance education programs and study aids will be removed from distribution
or circulation by June 30th, which is the official end of the term of the
academic year. It is the faculty member’s responsibility or
Biomedical Communications on their behalf, to see that this is accomplished. Similar
terms apply to year three and four medical students and other student groups. Consult
with Biomedical Communications.
4). Limit electronic “handouts” of supportive text media
to less than a single chapter, or single article from a journal issue.
Whenever possible, link to or identify a source of the original information
on their website, library, or in a bookstore rather than reproducing and
storing it digitally on our servers. Make all third party copyrighted materials
non-down loadable.
5). Limit your use to several charts, graphs, illustrations, or
other similarly small parts of another’s work. Include any copyright
notice on the original, plus appropriate citations and attributions to
the source. When using others’ work, investigate whether a digital
version is legally available prior to digitizing it from an analog resource. Use
the digital version whenever possible. Document your search efforts.
6). Incorporate others' work only if you the faculty member or our
institution possesses a legal copy of the work (i.e., by purchase, license,
fair use, interlibrary loan, etc.).
7). Use only websites, servers, distribution and copy centers that
are sanctioned and managed for educational purposes by WSUSOM. Make all
fair use materials non-down loadable. Adhere to limiting access, password
protection, and school term policies for all transmitted programs. For
physical media programs to checked-out by our students, adhere to the policies
established by the Self-instruction Center, which may vary for each type
of program.
8). Obtain permission (a license) for or purchase materials that will
be used repeatedly by the same instructor for the same class on an ongoing
basis for more than two to three consecutive years. When obtaining a limited
license for the use of another’s work in a classroom setting, attempt
to obtain permissions that consider the broader requirements of distance
education.
9). Do not use distance learning tools as a substitute for the type
of required texts, course packs or other materials students typically purchase
or acquire for independent use during the class term.
10). Display this notice on the program:
Some or all of the materials contained on this website are protected
by copyright. Copying, displaying and/or distributing copyrighted
works may infringe the owner’s copyright. Any use of computer
or duplicating facilities by students, faculty or staff for infringing
copyrighted works is subject to appropriate disciplinary action as well
as those civil and criminal penalties provided by federal law. For
more information on copyright law please see the U.S. Copyright Office
site at http://www.loc.gov/copyright/
Released Aug. 4, 2003