Use of Copyrighted Material Policy

General Policy Against Infringement

NYIT, as well as members of the NYIT community, including faculty and students, are owners and also users of copyrighted works. Just as we expect others to respect the copyrights we own, so too do we expect all members of the NYIT community to comply with the provisions of United States copyright law and avoid infringement of copyrights owned by others.

It is the responsibility of each member of the NYIT community to attempt in good faith to avoid copyright infringement in all NYIT activities, including the preparation of course materials, research and publications, web postings, and other displays and performances of the works of others.

Use of peer-to-peer computer file sharing programs that are primarily employed to share copyrighted works is also prohibited on the NYIT network.

Members of the NYIT community who willfully disregard copyright law do so at their own risk and face potential legal liability as well as sanctions pursuant to student and employee discipline procedures.

To assist the NYIT community with complying with this policy, set out below is some guidance on the use of copyrighted material in the classroom and other academic work. When in doubt, authorization from the copyright holder should be requested.

Please note that providing attribution to the source is not sufficient—you must get the permission of the copyright owner unless the material is in the public domain, you have a license, or your use constitutes fair use, as described below.

What is a Copyright

United States law grants copyright protection to creators of original works at the time of their creation. Protection is extended to written works, visual images, sound recordings, digital design, software and any other tangible medium of expression. Ideas and facts are not themselves protected by copyright, only the expression of those ideas.

Copyright protection is automatic from the moment of creation—the work is protected without any registration, whether the work is published or unpublished, and whether or not a copyright notice appears on the work.

The copyright owner has the exclusive right to:

  • Make copies (print or electronic)
  • Distribute copies
  • Perform or display a work publicly
  • Make derivative works
  • Digitally transmit sound recordings

Note that simply providing a link to a source (without copying any of the linked material) is not a copyright infringement.

Public Domain

Material which is not eligible for copyright protection or has an expired copyright is in the “public domain” and may be used freely. Examples of public domain materials are:

  • Ideas and facts
  • Works with expired copyrights. Works first published before 1923 are in the public domain; the determination is more complicated for works after that date (see Circular 22, “How to Investigate the Copyright Status of a Work” from the U.S. Copyright Office, http://www.copyright.gov/circs/circ22.pdf).
  • U.S. government works (but note: some state government works are protected by copyright)

Licensed Material

Certain materials are licensed from the copyright owner for use by NYIT (check with NYIT’s Library for further information) or covered by open licenses such as a Creative Commons license. You can look for Creative Commons licenses on works you’d like to use, find things using the Creative Commons content search, browse the Open Educational Resources Commons, or look over this list of “free and legal stuff you can use” (from Copyright Librarian Nancy Sims at the University of Minnesota) to get more ideas.

Fair Use

The Copyright Law allows for limited “fair use” of copyrighted works without the permission of the copyright owner. Unfortunately, the determination of “fair use” is a judgment call made on a case by case basis, weighing and balancing each of the following four factors:

  • The purpose and character of the use—uses in or by nonprofit educational institutions are more likely to be fair use than uses for commercial purposes, but not all educational uses are fair use.
  • The nature of the copyrighted work—reproducing a factual work is more likely to be fair use than using a more creative or artistic work.
  • The amount and significance of the portion used in relation to the entire work—using smaller portions of a work is more likely to be fair use than using a larger portion.
  • The effect of the use upon the potential market for the value of the copyrighted work—uses which do not compete with or diminish the market potential of the copyrighted work are more likely to be fair use.

Guidelines for Classroom Copying

The legislative history for the 1976 Copyright Act includes Guidelines for Classroom Copying, which were compiled by a committee of publishers, authors and educational institutions. The Guidelines are generally viewed as minimum permissible fair use; certain copying not covered by the Guidelines may nevertheless be fair use after analysis under the four factors set forth in the Fair Use section above. The Guidelines for Classroom Copying are not law and are not binding on the courts.

The full Guidelines can be found at: https://www.copyright.gov/circs/circ21.pdf.

Please note that the use of copyrighted material in course packs (print or electronic) is not within the Guidelines and does not constitute fair use. Permission of the copyright owner is required for use in course packs.

TEACH Act

The copyright law does have a specific provision granting teachers and students the right to publicly display and perform copyrighted works in the classroom (Section 110 of U.S. Copyright Law). This right covers all types of works for “face to face” teaching, including films and other audiovisual works in their entirety, provided that the copy displayed is obtained legally.

For online and distance learning, however, the right is still significantly limited, even after the 2002 amendment to Section 110 made by the Technology, Education, and Copyright Harmonization (TEACH) Act.

The following actions are allowed in distance education settings under the TEACH Act:

  • Display (showing of a copy) of any work in an amount analogous to what is provided in a physical classroom setting.
  • Performance of nondramatic literary works.
  • Performance of nondramatic musical works.
  • Performance of “reasonable and limited” portions of other types of work (other than nondramatic literary or musical work), EXCEPT digital educational works.
  • Distance-education students may receive transmissions at any location.
  • Retention of content and distant student access for the length of a “class session.”
  • Copying and storage for a limited time or as necessary for digital transmission to students.
  • Digitization of portions of analog works if no digital version is available or if digital version is not in an accessible form.

The following are NOT allowed in distance education:

  • Works that are marketed as part of online instructional activities (commercially available digital educational materials)
  • Unlawful copies of copyrighted works under the U.S. Copyright Law, if the institution “knew or had reason to believe” that they were not lawfully made and acquired.

There are numerous conditions and requirements for complying with the terms of the TEACH Act.

Duties and requirements for instructors

Use of digital materials must be directly related to the content of the course and must be part of “mediated instructional activities,” which means that the digital materials must be the same type of materials that an instructor would use as a part of a classroom session. Ancillary works that might be viewed or listened to outside of class are not included under the exemption.

Duties and requirements for institutions

The benefits of the TEACH Act apply only to accredited non-profit educational institutions or government bodies. Institutions must have policies regarding copyright, and must disseminate information about, and promote, copyright compliance.

Institutions must also provide notice to students that course materials may be copyright protected.

Institutions should limit the online transmissions to students enrolled in the particular course to the extent technologically feasible.