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It is the policy of Drew University to comply with the requirements of federal copyright law, codified as the Copyright Act of 1976 (17 U.S.C. § 101 et seq.), and as amended by the Digital Millennium Copyright Act of 1998 (Pub. L. No. 105-304, 112 Stat. 2860), and the Technology, Education, and Copyright Harmonization Act of 2002 (Pub. L. No. 107-273, 116 Stat. 1910). As a result, all faculty, staff and students of Drew University are required to meet their legal obligations and follow these policy guidelines. Faculty, students and staff are encouraged to learn more about copyright and fair use as it applies to their work and intellectual property.
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Violations of copyright laws can result in civil and criminal prosecution. Claims can be asserted against individuals, who are found to have violated copyright laws, as well as against the University.
Civil and Criminal Penalties for Copyright Infringement
Legal Background
Copyright law has a constitutional basis and dimension. Article I, Section 8, Clause 8 of the United States Constitution authorizes Congress to enact legislation designed 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.”
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Four factors are applied to the facts of each use in order to determine whether the intended use is protected as “fair use.” The four factors utilized in evaluating fair use are:
- the purpose and character of the use, for example whether the use is properly characterized as commercial use or for nonprofit educational purposes, or fundamentally transformative,
- the nature of the copyrighted work, for example, the use of purely factual information (statistics, lists) is more likely to constitute fair use than the use of creative works, such as fiction or poetry,
- how much of the copyrighted work is utilized in relation to the work as a whole, and
- the effect of the use upon the market or value of the copyrighted work, or in other words how does the use effect the owner’s economic interests.
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- Know Your CopyRights: http://www.knowyourcopyrights.org/
- Georgia State University Board of Regents Fair Use Checklist:
http://www.usg.edu/images/copyright_docs/fair_ - Fair Use Considerations Checklist from Colombia University: http://copyright.columbia.edu/copyright/files/2009/10/fairusechecklist.pdf
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Complete and retain a copy of this checklist for each “fair use” of a copyrighted work in order to establish a “reasonable and good faith” attempt at applying fair use should any dispute regarding such use arise.
Factor 1: Purpose and Character of the Use |
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Weighs in Favor of Fair Use | Weighs Against Fair Use |
□ Nonprofit Educational Institution | □ Commercial activity, profit from use |
□ Used for Purpose of Teaching (including multiple copies for classroom use) and/or Scholarship or Criticism, Comment, News Reporting, or Parody | □ For public distribution |
□ Used for noncommercial, nonprofit educational use | □ Used for entertainment |
□ Transformative (use changes work for new utility or purpose) | □ Mirror image copying |
□ Use is necessary to achieve your intended educational purpose | □ Use exceeds that which is necessary to achieve your intended educational purpose |
___ _Factors Weighing in Favor of Fair Use_ | ___ _Factors Weighing Against Fair Use_ |
Factor 2: Nature of Copyrighted Work |
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Weighs in Favor of Fair Use | Weighs Against Fair Use |
□ Published work | □ Unpublished work |
□ Factual/informational and educational in nature or nonfiction work | □ Fiction or highly creative work (art, music, novels, films, plays, poetry) |
□ Non-consumable work | □ Consumable work (workbook, test) |
__ Factors Weighing in Favor of Fair Use | ___ _Factors Weighing Against Fair Use_ |
Factor 3: Amount and Substantiality of Portion Used |
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Weighs in Favor of Fair Use | Weighs Against Fair Use |
□ Decidedly small portion of work used (no more than 10% of work not divided into chapters or having less than 10 chapters or nomore than 1 chapter of a 10 or more chapter work) | □ Large portion or entire work used (more than 10% of work not divided into chapters or having less than 10 chapters or more than 1 chapter of a 10 or more chapter work) |
□ Portion used is not central or significant to entire work as a whole | □ Portion used is central to work or “heart of the work” |
□ Amount taken is narrowly tailored to accomplish a demonstrated, legitimate purpose in the course curriculum and must be narrowly tailored to accomplish that purpose | □ Amount taken is more than necessary to accomplish a demonstrated, legitimate purpose in the course curriculum or is not narrowly tailored to accomplish a demonstrated legitimate purpose in the course curriculum |
□ Access limited to students enrolled in course for only the term of the course | □ Access not limited |
___ _Factors Weighing in Favor of Fair Use_ | _ _Factors Weighing Against Fair Use |
Factor 4: Effect on Market for Original |
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Weighs in Favor of Fair Use | Weighs Against Fair Use |
□ Permission for digital excerpt is not readily available from publisher or Copyright Clearance Center at a reasonable price | □ Permission for digital excerpt is readily available from publisher or Copyright Clearance Center at a reasonable price |
□ Decidedly small portion used | □ Large portion or entire work used |
□ User owns lawfully acquired or purchased copy of original work | □ User does not own lawfully acquired or purchased copy of original work |
□ Use stimulates market for original work |
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___ _Factors Weighing in Favor of Fair Use_ | ___ _Factors Weighing Against Fair Use_ |
Revised for use at Drew University based on the Fair Use Checklists of the University System of Georgia, http://www.usg.edu/images/copyright_docs/fair_use_checklist.pdf _and Columbia University, http://www.copyright.columbia.edu/fair-use-checklist_