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I have the misfortune, I mean opportunity to head up a committee to revisit our Copyright Policy. Over the past few years I have read dozens of books & articles, attended numerous webinars & workshops and even completed an online certificate program with the University of Maryland on the topics of copyright and fair use. For some reason it seems that the more I learn, the less confident I feel in my knowledge in these areas.
One of our challenges is the need to be in compliance with Copyright law, the TEACH Act, the DMCA and the HEOA especially in regard to having a copyright policy and providing education about copyright to the college community. This policy revisit is happening at the same time as we implement a comprehensive Enterprise Risk Management process and so we are sensitive to how a change in the policy may impact us from a risk perspective.
In looking at copyright policies at other institutions I have found that about 80% of them appear to be similar to ours and based on the CONFU guidelines to provide guidance to users in regard to what they can and cannot do under fair use. For example, there are specific limitations on the amount of text, audio, video and images that can be copied. There are also very specific guidelines for the off-air recording of television programs. A few institutions are on the other end of the spectrum and have implemented copyright policies that basically say follow copyright law and utilize the four factors of fair use.
Having our current policy based on the Confu guidelines is helpful when we are asked if a specific use is likely to be considered to be a fair use. Without the guidelines I am afraid that our response would end up being “Maybe” or “It depends” which are the answers we typically get when we ask lawyers fair use questions.
Our faculty is pushing for us to create a more flexible copyright policy that is not quite so dependent upon the guidelines. They would like our college to promote fair use rather than just place limits on users. They would like our policy to not necessarily be based on the Confu limitation guidelines. But, the recent Georgia State copyright court ruling included a ten percent limit on the copying of text based copyright works under fair use.
So, I have a few questions for you:
1. Is your current copyright policy based on the standard CONFU guidelines? If not, what do you use?
2. When was the last time you revised or updated your copyright policy?
3. Do you foresee an upcoming revisit of your copyright policy?
4. Are you aware of any exceptional copyright policies that we should review to assist us in updating our policy?
5. I personally struggle with understanding the difference between derivative works and transformational works. I understand that a transformative use is when a copyrighted work is used in a completely different way than originally intended, then it is considered to be a fair use. A common example is a mash-up where bits & pieces of music and/or video are combined to create a new music or video work. But, if for example, a novel was converted to a movie script, to would be considered to be a derivative work and therefore not a fair use. Is anyone aware of a useful definition or test of the difference between a transformational work and a derivative work?
I’ll stop with the questions because I am already getting a headache thinking about all of this.
John R. Ellis
Executive Director Information Technology Services
The College of Saint Rose
432 Western Avenue
Albany, New York 12203