Tufts University Policy On Fair Use of Copyrighted Materials

Adopted April 3, 2001; Amended February 26, 2009

I. Applicability
II. Policy
III. Enforcement
IV. Standards Applied
    A. What is Copyright?
    B. “Fair Use” Exemption
    C. Electronic Course Content
    D. Infringement Litigation
V. Changes to This Policy

I. Applicability

This policy applies to Tufts’ faculty, students, administrators and academic, technical and office staff and other persons or entities performing collaborative work or service for the University, whether compensated by the University or not.

This policy extends to all works of authorship and creativity covered by federal copyright law. These works include print (e.g., books) and electronic documents, software (including source code and object code), databases, multimedia and audiovisual materials, photographs, music, works of drama, works of art (sculpture), among other types of creative works.

II. Policy

As the fundamental purposes of the University include the creation, compilation, and preservation of knowledge in permanent and transmissible forms and the circulation and diffusion of such knowledge to the University community and to the global community, the University holds in the highest regard the rights that govern the creation and diffusion of knowledge, and the laws that define and enforce them. This regard applies to both the rights of creators in and to their creations (copyright) and the rights of students, faculty, researchers, and scholars to avail themselves for legitimate purposes of others’ creations (fair use).

The policy of Tufts University is as follows:

Members of the Tufts community are expected to be mindful of the restrictions imposed on them by copyright law as well as the rights conferred on them by the fair use exemption to the copyright laws. Members of the Tufts community are expected to comply with the copyright laws.

Section IV of this document contains a definition of copyright and fair use. Also, to facilitate compliance, there are resources within the Tufts community which provide basic information about copyright restrictions and the fair use exemptions. Frequently asked questions and guidance for obtaining permission to use specific works or parts thereof may be found elsewhere on this website. Tufts librarians may also be consulted for guidance.

Further explanation and related information may also be found in Tufts’ Policy on Rights and Responsibilities With Respect to Intellectual Property, which covers copyright ownership that members of the Tufts community have for their own creations. Tufts’ Information Technology Responsible Use Policy is also a useful reference for copyright restrictions that apply to electronic media.

III. Enforcement

Reports of possible infringement should be made to the Provost. Members of the Tufts University community who violate this policy may be subject to disciplinary action, among other possible penalties. If the University is notified by a copyright owner, publisher, distributor, or law enforcement agency of possible infringement, the Provost’s office, or its designee, will direct an investigation, require the violator to correct any infringement, and may impose disciplinary action on the responsible parties.

IV. Standards Applied

In a nutshell, “copyright” says that you are prohibited from using a work unless you own the copyright or have permission; “fair use” says that you may use the work with neither copyright ownership nor permission if your use is indeed fair under the legal criteria set forth below. Note however, that “copyright” and “fair use” have only been summarized below in Sections IV A and IV B, respectively. This is a complex area and members of the community should seek guidance when needed from this web site, or from Tufts libraries.

A. What is Copyright?

Under U.S. law, “copyright” is a bundle of exclusive rights, conferred by federal statute (the 1976 Copyright Act, found in Title 17 of the United States Code) automatically upon the author of a work at the instant of its creation. Creation occurs legally when a work is fixed in a tangible medium of expression for a period of more than transitory duration.

Subject to a number of statutory limitations, none of which, except “fair use”, will be reviewed here, the owner of the copyright in a work has the exclusive right to do and to authorize any and all of the following:

  1. To reproduce the copyrighted work in copies;
  2. To prepare derivative works (the movie of a book is a derivative work);
  3. To distribute copies of the copyrighted work publicly;
  4. To perform (e.g., an opera) the copyrighted work publicly;
  5. To display (e.g., a sculpture) the copyrighted work publicly, and
  6. In the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

If a person or entity does not own the copyright in a work, does not have permission to make use of the materials, and does it anyway, then the individual or entity is infringing on the holder’s copyright unless a statutory exemption (such as the “fair use” exemption described below) applies. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

B.”Fair Use” Exemption

The “fair use” of a copyrighted work, including copying for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright. The “fair use” doctrine has been developed over time by the courts and is codified in Section 107 of the Copyright Act.  Section 107 sets out four non-exclusive factors to be considered in determining whether a particular use is fair:

  1. The purpose and character of the use (in applying this factor, courts have considered whether such use \(i\) is of a commercial nature, (ii) involves a transformation of the original work, by adding new expression or insight; and (iii) represents a criticism or parody of the original work);
  2. The nature of the copyrighted work (is it an artistic masterpiece or merely a compilation of readily available data);
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. The effect of the use upon the potential market for or value of the copyrighted work.

A court considering whether an unauthorized use falls within the “fair use” exemption should balance all four factors “flexibly,” without relying on any one factor, and may consider additional factors it deems appropriate in order to reach an equitable result. The distinction between “fair use” and infringement may be subjective and not easily defined.

C. Electronic Course Content

Making an electronic copy of a copyrighted work by any means (e.g., scanning, digitizing, ripping, etc.) constitutes reproduction that is governed by copyright law. Any use of copyrighted electronic course content that would require permission from the copyright owner if the materials were part of a printed coursepack likewise requires the copyright owner’s permission when made available in electronic format, unless one concludes, after reasonable inquiry, that the use qualifies as a fair use \[see section IV B, above\] or other exempt or licensed use for which permission is not required. Copies of copyrighted works, regardless of their format, should include proper attribution and copyright notices.

It is preferable to link to materials already legally available at another site, such as the content in databases or e-journals licensed by the Tufts libraries, rather than scanning or making a digital copy.

To the extent technologically feasible, instructors should use passwords, ID numbers, or other appropriate means to limit access to copyrighted electronic course content to students enrolled in the course or other individuals requiring access to the course materials for purposes of conducting the course. The availability of such content to students should terminate when the students have completed the course.

D. Infringement Litigation

Congress and copyright owners take infringement very seriously, and statutory penalties can be draconian. “Statutory” damages (as opposed to “actual” damages, which must be proved with evidence) may be elected by the plaintiff copyright owner and can be as much as $30,000 per infringed work; in cases of willful infringement, the court may increase an award of statutory damages to any sum up to (and including) $150,000. Statutory damages are not imposed, however (under a specific statutory exclusion), in any case where an employee of a nonprofit educational institution or library acting within the scope of her/his employment “believed and had reasonable grounds for believing” that her/his use of the copyrighted work was fair use (even though it was in fact an infringement). Whether such belief was “reasonable” under the circumstances is a factual matter that a reviewing court will determine in case of dispute.  Willful infringement of copyright for “commercial advantage or private financial gain” may be criminal, and conviction can result in fines and imprisonment. The creators and distributors of “content” in the electronic age may pursue very actively infringement actions against individuals and institutions.

V. Changes to This Policy

The University reserves the right to change this policy from time to time. Proposed changes should be recommended to the Provost. The Provost must approve any changes to this policy.