Copyright

Copyright

Background


    Swarthmore College Copyright Guidelines


      Scholarly use of copyrighted materials


      Digital Millennium Copyright Act


      Background

      It is the policy of Swarthmore College to comply with all relevant sections of the United States Copyright Law. Our policies assume respect for the rights of copyright holders, tempered by the recognition that the educational process dictates a flexible and good faith interpretation of the "fair use" doctrine.

      The information and guidelines presented below are based on United States Copyright Law. Some materials of interest to the College community may be protected under the copyright regulations of other nations. This document does not address the copyright issues that arise in such circumstances; members of the College community who wish to make use of such materials are encouraged to seek more specialized guidance.

      Some of the material appearing below is taken from the US Copyright Office Web page at http://lcweb.loc.gov/copyright; US government publications are not subject to copyright protection.

      What is copyright?

      Copyright is a form of protection provided by the laws of the United States (title 17, U.S. Code) to the authors of "original works of authorship," including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works. Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:

      • To reproduce the work;
      • To prepare derivative works based upon the work;
      • To distribute copies of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
      • To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;
      • To display the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and
      • In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.

      It is illegal for anyone to violate any of the rights provided by the copyright law to the owner of copyright. These rights, however, are not unlimited in scope. Sections 107 through 121 of the 1976 Copyright Act establish limitations on these rights. In some cases, these limitations are specified exemptions from copyright liability. One major limitation is the doctrine of "fair use," which is given a statutory basis in section 107 of the 1976 Copyright Act. A second relevant limitation is the ability of libraries to make copies of copyrighted works under specified conditions.

      What works are protected?

      Copyright protects "original works of authorship" that are fixed in a tangible form of expression. The fixation need not be directly perceptible so long as it may be communicated with the aid of a machine or device. Copyrightable works include the following categories:

      • literary works;
      • musical works, including any accompanying words
      • dramatic works, including any accompanying music
      • pantomimes and choreographic works
      • pictorial, graphic, and sculptural works
      • motion pictures and other audiovisual works
      • sound recordings
      • architectural works

      These categories should be viewed broadly. For example, computer programs and most "compilations" may be registered as "literary works"; maps and architectural plans may be registered as "pictorial, graphic, and sculptural works."

      There are time limitations to copyright protection. Copyright protection has expired for all works published prior to 1923. For works published between 1923 and 1977, copyright protection extends for 95 years, if the copyright owner complied with certain statutory formalities; otherwise the copyright protection may have expired. Works created or first published between 1978 and the present are protected by copyright for the author's life, plus 70 years, if the work is ascribed to an individual. For anonymous works, or works created by corporate authors, copyright protection extends for 90 years from the time that the work was created.

      Out of print materials are generally protected by copyright, unless the copyright time limits have expired. Out of print materials may be reproduced in accordance with the fair use guidelines described below.

      Works published since March, 1989 need not bear a copyright notice to be protected under the Copyright Act.

      What is not protected by copyright?

      Several categories of material are generally not eligible for federal copyright protection. These include among others:

      • Works that have not been fixed in a tangible form of expression, (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded)
      • Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents
      • Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration
      • Works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources)
      • Publications of the United States government.
      • Materials on which the copyright has expired, or been declared in the public domain, including all works published prior to 1923 in the United States.

      What is fair use?

      Fair use is a vaguely defined concept that is described in the statute as follows:

      § 107. Limitations on exclusive rights: Fair use:
      Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

      1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
      2. the nature of the copyrighted work;
      3. the amount and substantiality of the portion used in relation to the copyrighted portion as a whole; and
      4. the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all of the above factors.

      With this less than clear legislation, it is obvious that the concept of "fair use" has come to be defined by judicial rulings, most of which are not directly relevant to the use of copyrighted materials at institutions such as Swarthmore. Court decisions that rule in favor of or against fair use in particular instances consider all four of the factors listed above, with weightings that vary from case to case. In general, factor (4) has come to be viewed as the most important determinant of the fair use of copyrighted materials, although always in the context of the other three criteria.

      What are the rights of libraries to reproduce copyrighted works?

      Section 108 (d) and (e) of the statute describes a limitation to copyright that is used frequently in academic institutions. It is not an infringement of copyright when libraries (or patrons) make single copies of certain copyrighted works (excluding musical works, graphic, pictorial or sculptural works; motion pictures or other audiovisual works, except audiovisuals dealing with the news) provided that:

      1. only individual articles or small portions of a larger work are copied;
      2. the copies becomes the property of the patron;
      3. the copies are used for private study, scholarship or research and the copying is not done for commercial advantage;
      4. the library displays prominently a notice warning of copyright in accord with requirements published by the US Copyright Office.

      Libraries may make copies of entire works (or substantial pieces of a work) if the work cannot be obtained after a reasonable search and at a reasonable price.

      Swarthmore Copyright Guidelines

      The guidelines described below provide a framework for judging whether the use of copyright protected material falls within fair use. As noted previously, fair use is an ambiguous concept. This document represents the College's interpretation of the letter and spirit of fair use, with the expectation that most of the use of copyright protected materials on campus will fall within these guidelines. Actions which go beyond these guidelines may also fall within fair use, but interested faculty/staff/students are urged to consult with the College Librarian and/or the Fair Use Committee for further clarification.

      Even when duplication of copyrighted works fall within fair use, all copies must bear copyright management information (the name of the original work, the name of the author (or other copyright owner), any terms and conditions for use of the work and an indication that further duplication is regulated by US Copyright law).

      Course Readings

      Faculty can provide supplementary materials or course readings by:

      • distributing multiple copies for classroom use;
      • placing items on print reserves in the library;
      • making materials available using electronic reserves;
      • compiling anthologies ("course packs");

      Each one of these methods is treated somewhat differently under copyright law.

      Multiple Copies for Classroom Use

      (Following the American Library Association's Model Policy Concerning College and University Photocopying for Classroom Research and Library Reserve Use (1982).)

      With respect to classroom uses, the following guidelines apply:

      • only one copy may be distributed for each student per course;
      • the distribution of the same photocopied material may not occur every semester that a particular course is taught;
      • the material must include a copyright notice on the first page of the portion of material photocopied; and
      • students may not be assessed any fee beyond the actual cost of photocopying.

      Furthermore, copying should meet the tests of brevity and spontaneity.

      To meet the brevity test, no more than one article, poem, story or essay may be copied from the same author and no more than three from the same collective work or periodical volume during one class term.

      Spontaneity is defined as that which meets the following two criteria:

      1. The copying is at the inspiration of the individual instructor, and
      2. The decision to use the work and the time of its use are so close in time that it is impractical to expect a timely reply to a request for permission to copy.

      Given the amount of time it often takes to get permissions, faculty can assume that the first time they use an item, it will fall within these guidelines. However, if the faculty member expects to use the materials again, they should seek permissions from the copyright holder before a repeat use. (Alternatively, faculty should seek permissions when they decide to use the work. They may proceed with use of the work if permission is not forthcoming prior to the time when the work is introduced in the course).

      In any case, photocopying for classroom use:

      • should not have a significant detrimental impact on the market for the copyrighted work;
      • should not be used to create or replace or substitute for anthologies, compilations or collective works;
      • should not be used to reproduce consumable works such as copyrighted workbooks, exercises, standardized tests and test booklets and answer sheets, etc;
      • should not substitute for purchase of books or periodicals.

      Print Reserves

      It is reasonable to believe that fair use applies to the Library's reserve shelf to the extent that it functions as an extension of classroom readings (provided that the brevity and spontaneity criteria are satisfied) and reflects an individual student's right to photocopy for his or her personal scholastic use. The use of photocopied material for course reserves is subject to the following guidelines:

      • The Library must own a copy of a work placed on reserve. Alternatively, the Library may accept a copy of a work that is not in its collections with the assurance from a faculty member that the work is in her/his own personal collection.
      • Only one work from a single author, or three from the same collective work or periodical volume, may be placed on reserve for a single course. Faculty members who wish to place more than three chapters from a collected work or monograph or more than three single journal articles on Reserve must seek permission from the copyright holder.
      • Generally, the Library should not place more than five photocopies of a single article, reading, etc. on reserve, but factors such as the length or difficulty of the assignment, the number of enrolled students and the length of time given for completion of the assignment may permit the Library to place more than five photocopies on Reserve.
      • If faculty members wish to place photocopied material on Reserve for a second semester, they must seek permission from the copyright holder to do so, unless that material comes from a journal for which Swarthmore pays an institutional subscription price.
      • Photocopies must not be retained by the Library following completion of the course.

      Placing Entire Works or Large Sections of a Monograph on Reserve
      Sometimes a faculty member wishes to place multiple photocopies of an entire work on Reserve.

      • If the work is a monograph and is in print, the Library can only accept individual chapters (not to exceed 10% of the entire work during a single semester).
      • To place larger sections on reserve, the faculty member must seek permission from the publisher of the work. The Library will help the faculty member ascertain if the work is available and/or under copyright.
      • If the work is out of print and it is unlikely that the Library can obtain the work "for a fair price", under Section 108(e) of the Copyright Act, the Library may either photocopy a work it owns or accept up to three photocopies from the faculty member.

      Special Considerations Concerning Sheet Music
      In addition to the general guidelines that pertain to all printed materials, the following apply to the photocopying of sheet music:

      • Faculty may copy for classroom distribution (or place on reserve) an excerpt which is no more than 10% of the whole work. In addition, the portion copied must not comprise a part of the whole work that would constitute a performable unit such as a section, movement or aria.
      • Purchased printed copies may be edited or simplified provided that the fundamental character of the work is not distorted or the lyrics altered or added if none exist.

      Electronic Reserves

      Some publishers, as well as the Copyright Clearance Center treat electronic reserves (that is, reserve readings which are scanned in and made available digitally) as different from printed reserves. However, in general, the guidelines for print reserves (above) should be used as the basis for determining fair use in the case of electronic reserves, as well. Electronic reserves are subject to certain additional restrictions:

      • the reserve system will restrict the number of patrons that can access each work simultaneously. Generally, the restriction will be 5 simultaneous users.
      • reserve materials will be password protected; the password will be made available only to those enrolled in the class (and those responsible for maintaining the system).
      • the electronic reserve system will display copyright notice.
      • materials will be removed from the public server at the conclusion of each course.

      Course Packs

      If a faculty member wishes to compile a set of articles into a course pack for distribution or sale:

      • He/she must seek permissions for all materials to be included.
      • The bookstore can assist with seeking these permissions.
      • Even with significant lead time, there may be some instances wherein permissions are not secured prior to the beginning of the term. If this occurs, we suggest that those readings be place on reserve in the library or they may be distributed to students following the guidelines for "multiple copies for classroom use" (above).

      Video and Audio Reserves

      The Library does provide streaming audio and video as an alternative to placing CDs and DVDs (or other formats) on Reserve. In these cases the entire work can be streamed, however, it is not available for download without permission of the copyright holder.

      Scholarly Use of Copyrighted Materials

      The College has long held that the scholarly activities of the faculty are integral to the educational mission of the institution. In recent years, the growth of student/faculty research in the curriculum only highlights the degree to which faculty scholarship is an extension of the work done with students in the classroom and laboratory.

      Traditional interpretations of copyright law have long held that the reproduction of copyrighted materials for the individual use of scholars is fair use. While this environment remains largely intact, recent court rulings have circumscribed the breadth of this fair use exception.

      Reproduction of entire journal articles or small sections of a monograph is permitted, assuming that the copy is for the individual use of a scholar. (Further distribution of that copy by, for example, producing copies for a group of students will typically fall under the guidelines for "multiple copies for classroom use", above.)

      Reproduction of entire monographs may be permitted for the scholarly use of individuals, provided that the "spontaneity" test is met. Absent this, scholars should either purchase a copy of the monograph, if available, or seek copyright permission. (For out of print materials, a reasonable attempt must be made to obtain copyright permission as these materials retain their copyright protection.)

      Institutional encouragement of widespread reproduction of copyrighted material (by, for example, circulating individual journal issues to faculty for systematic copying of individual articles for their files) is not considered fair use.

      Visual Resources

      The use of visual materials in teaching and research by studio artists, art historians, architectural historians and historians of film, among others at the College, is fundamental to their ability to carry out the educational mission of the institution. The following guidelines recognize the crucial nature of these needs and aim to respond to them in the most productive and generous spirit possible, while still upholding the tenets of copyright legislation.

      For visual materials, ownership of the copyright can be ambiguous, with several possible rights holders involved. These include:

      • For published materials into which images are incorporated, the compiler of the images (i.e., the publisher or author), one or more photographers who may not have relinquished copyright to the compiler, and/or the creator of the work(s) or art shown (if not in the public domain).
      • For collections of published images, the printer/publisher of the images, the creator(s) of the individual prints, and/or the creator(s) of the original unique works of art reproduced in print form.
      • For unpublished images, those who originally created the works.
      • Any person or entity to which any of these copyright holders have transferred or assigned their copyrights.

      In addition, museums or other repositories may have "proprietary interests" which grant them the legal right to control access to and distribution of reproductions of works under their control.

      For the purposes of educational, not-for-profit uses of materials such as 35 mm slides depicting works of art, the "mechanical" means used to photograph those works can be characterized as documentary in intent and fundamentally non-creative in nature. These depictions are therefore not protected by copyright. This then enables the free use -- use without seeking permission - of reproductions of these "mechanical productions" in the event that the works they depict are not themselves copyright protected.

      Acquisition/production of visual materials
      The following guidelines govern the acquisition of visual materials (images) for educational and scholarly use:

      • The first recourse for obtaining visual materials for use in the classroom (or for other professional activity by faculty, short of publication) should be purchasing or licensing these materials from appropriate vendors.
      • In-house production of visual materials through copy photography or duplication of original materials is a fall-back option, provided that the "brevity" and "spontaneity" criteria are met, or in the event that documented good faith efforts to find commercial sources, at a fair price, for the materials have been unsuccessful.
      • For purposes of the "brevity" criteria, a published collection of images (or published text into which images have been incorporated) is judged to be a single work; reproduction of images in such a work should be limited to 10% of the total number of images in the collection.
      • If materials are acquired through the duplication of original copyright-protected slides, photographs, or digital works (as distinct from those reprinted in texts or other collections of images), it is necessary to seek permission from the copyright holder(s) before their duplication and/or use can proceed. In the event that the spontaneity of the need for these materials precludes obtaining permissions prior to their use, reproduction and use may proceed on a one-time basis only. Subsequent use may proceed only once the necessary permissions have been secured, or good-faith efforts to obtain them have been documented.
      • Under no circumstances may more than one copy of a given image be made at any one time.
      • Low resolution digital representations of images ("thumbnails") can be produced and used in support of scholarship or the curriculum by College faculty, students and staff without the need to secure permission from the copyright owners of the original image. (The audience for "thumbnail" reproductions should be limited, however, to the College community.)


      Use of visual materials

      Visual materials that have been produced or acquired in accordance with the guidelines outlined above may be used freely for teaching in the classroom and for other related, non-commercial, non-publication purposes by faculty, staff and students. Specifically, the non-commercial, non-publication, professional activities of faculty and staff (public lectures, presentations at professional meetings or other institutions, etc.) are understood to be extensions of the educational work carried out in the classroom. All such activities are considered fair use under these guidelines.

      Note: The use of visual materials in scholarly or professional publications requires prior permission of the copyright owner(s). In this context "publication" is taken to mean both traditional print media, and any Web-based or on-line presentation with an audience that extends beyond the College computing network.

      Video/Multimedia Materials

      (Derived from the 1996 guidelines developed by the Consortium of College and University Media Centers.)

      When incorporating the work(s) of others into multimedia creations, the following are considered amounts of materials that are likely to be construed as fair use:

      • Motion media - up to 10% of a work or 3 minutes, whichever is less;
      • Text - up to 10% of a work, or 1000 words, whichever is less;
      • Poetry - up to 250 words from a work, but also limited to 3 poems or portions of poems by one poet or 5 poems or portions of poems by different poets from an anthology;
      • Music - up to 10% of a work or 30 seconds, whichever is less (any alterations to a musical work should not change the melody or basic character of the work);
      • Photos and images - up to 5 works from one author or up to 10% or 15 works, whichever is less, from a collection;
      • Database information - up to 10% of a work, or 2500 fields or cell entries, whichever is less.

      In all cases, incorporation of the works of others must be accompanied by attribution to the author (or other copyright owner) and a valid copyright notice.

      Because of the time and effort required to develop multimedia materials, the fair use of incorporated works is allowed for a period of 2 years from the first instructional use or public display of the multimedia work.

      Faculty may:

      • incorporate the work of others in their multimedia creations (subject to the restrictions above) to develop curriculum materials where (1) access is limited to students enrolled in the relevant classes and to others with curricular justification and (2) technology makes copying impossible;
      • demonstrate their multimedia creations at professional symposia and retain the creations in their own portfolios (though display/dissemination privileges are restricted to a period of 2 years from the time of first instructional use or public display).

      Students may:

      • incorporate the works of others into their multimedia creations (subject to the restrictions above) and display them for the exclusive purpose of fulfilling their academic assignments;
      • demonstrate their multimedia creations at professional symposia and retain the creations in their own portfolios (though display/dissemination privileges are restricted to a period of 2 years from the time of submission of the academic assignment or first public display).

      For both students and faculty, retention within a portfolio does not include the right to display multimedia works in a public forum such as the World Wide Web, unless permission from the relevant copyright owners have been obtained for this purpose.

      Duplication of multimedia creations beyond that required to provide a backup copy is not generally considered fair use, though joint developers may each have a copy.

      Unpublished Materials

      All materials of intellectual and/or creative content not produced for dissemination in multiple copies beyond a narrow group are considered unpublished. For example, a College staff policy circular is unpublished, but the Weekly News is a publication. Unpublished materials can be in any format. Most common are personal papers, organizational records and such memorabilia as snapshots and home movies.

      Unpublished materials may be used without the consent of the copyright owner if either the copyright has expired or the fair use exception applies. Historically, the creators of unpublished materials have been assumed to own a "right of first use" of their own work. Under modern copyright law, unpublished materials have been accorded a higher level of copyright protection than other materials, i.e., the factors that determine fair use are heavily weighted by the unpublished nature of the copyrighted work. The other three factors (purpose and character of use, amount used and effect on the market for the work) must be overwhelmingly in favor of fair use in the case of unpublished materials.

      Note: Posting unpublished materials on the World Wide Web with unlimited access for all users on the Internet is not considered a form of "publication", but rather "public display". Thus, such works may be more freely utilized under fair use (than non-displayed unpublished material), though not to the extent possible for published material.)

      Unpublished materials created by College employees in the normal execution of their duties (such as official College documents) are considered "works for hire", and the copyright belongs to the College unless there is a formal agreement to the contrary. Because the status of works created by outside contractors may be more ambiguous, copyright ownership should be an explicit part of the contract or agreement with any such contractor.

      The College also has institutional collections of unpublished materials created by others and deposited with College departments (for example, the Friends Historical Library). If the College holds the copyright to such materials, the College has full right to determine if and under what circumstances the material may be used, subject only to fair use. As owner of an object, the College may also have proprietary rights, allowing it to deny and/or limit use of the object.

      Often the College does not hold the copyright to unpublished materials in its collections. Any such material provided to any individual or group must be accompanied by a disclaimer imposing upon the user the obligation to clear all matters of copyright and requiring the user to indemnify the College for all penalties due to infringement.

      Software

      The vast majority of all computer software is protected by copyright law. The exceptions to this rule are so few that faculty, staff and students should assume that all software on Swarthmore's computer system, on third party systems, or available through the Internet is protected by copyright, unless there is clear indication to the contrary.

      Simply stated, the copyright law allow a user of software to use the software, load it onto the hard drive of a computer, and retain the original disk as an archive copy. Users are not allowed to modify the software, make more copies of it, simultaneously use a single copy on both a home and a campus computer, or distribute the software through the Internet, unless the license agreement explicitly permits those activities.

      Possessing software for which an individual does not own a license is a violation of the Copyright Act, and may subject both the College and individual faculty, staff and students to sanctions as set forth in the Act. For all practical purposes, the fair use exception does not apply to operating system and application software.

      In addition to application software and operating systems, federal copyright protection also extends to the data files (content) created for use with or by applications and operating systems (e.g., spreadsheets, databases, mpeg3 music files, quick time video files, scanned images). Unauthorized creation, copying and distribution of these materials are violations of the federal copyright statute, unless they can be construed as fair use.

      Digital Millennium Copyright Act

      The Digital Millennium Copyright Act (DMCA) was signed into law by President Clinton in October, 1998. One of the provisions of the legislation provides an opportunity for online service providers (OSP's) to shield themselves from liability for the actions of their subscribers that infringe on the copyrights of others. All institutions of higher education that provide Internet access fall within the scope of the definition of an OSP, with relevant subscribers being their students, faculty and staff. This document outlines the policies and procedures that Swarthmore will follow to comply with the DMCA.

      Who is a subscriber?
      All faculty, staff and students who receive Internet access or Web server space from the College are considered subscribers. Anyone who uses the "swarthmore.edu" Internet address or accesses the Internet using College-provided hardware, software or network connections is considered a subscriber. For example, faculty and staff using their College owned office computers, faculty and staff (and their families) using dial-up services provided by the Computing Center, students working in the dormitories, on departmentally provided facilities, or using dial-up services provided by the Computing Center and the Swarthmore College Computing Society (SCCS) are all subscribers of the College services.

      What is the scope of the College's liability?
      As an OSP, the College is potentially liable for monetary damages (plus attorney's fees) if any of its subscribers provide Internet access to material that infringes on the copyrights of others. (The same is true if, for example, a subscriber transmits infringing materials in an e mail message.) Copyright owners are entitled to recover either their "actual" damages, or statutory damages that range as high as $30,000 per work infringed. (In the case of willful infringement, the statutory damages can be as high as $150,000 per work.) In all cases, the "fair use" exemption that allows use of copyrighted materials in narrowly defined circumstances applies to materials in digital form just as it applies to traditional media.

      The DMCA does not address the liability that individual subscribers carry for their own actions. The penalties that can be assessed against individual subscribers for copyright infringement are the same as those outlined in the preceding paragraph.

      The DMCA does not require that the College "police" the Internet activities of its faculty, staff or students. It only requires that the College respond in specified ways when evidence of infringing activity is brought to its attention or when it receives information that makes it apparent that infringing activity is occurring (and only then to avoid institutional liability).

      Limitation of the College's liability
      The DMCA provides an opportunity (a "safe harbor") for the College to avoid liability for the actions of subscribers, provided that rigorous policies and procedures are in place and that the College did not have prior knowledge of the infringing activity. These policies and procedures include:

      • The College must register a designated agent with the US Copyright Office and this individual must be identified on the College WWW site. This individual will receive notices from copyright owners that College subscribers have infringed on the owner's copyrights. These notifications must be in a form prescribed in the legislation and are made under penalty of perjury.
      • Following receipt of a proper notification, the College must "expeditiously" remove ("take down") the infringing material or block access to it.
      • The College must "promptly" notify the subscriber of the College's action. (Such notification shields the College from liability for damages sought by the subscriber.)
      • The subscriber may provide a counter notification (also under penalty of perjury) to the College's designated agent stating that the copyright owner is either mistaken or that the use of the material is lawful. At this point, the College must "promptly" notify the copyright owner and restore the material no less than 10 business days and no more than 14 business days after the owner is notified of the counter notification. If the matter has been referred to a court in the intervening time, the "put back" requirement does not apply.
      • The College must have in place information regarding copyright compliance and its own institutional policies and procedures. These materials must be disseminated to all subscribers.
      • The College must develop policies for sanctions (including termination of services under appropriate circumstances) against subscribers who are repeatedly found to engage in infringing activities.
      • The legislation makes special note of the role of faculty at educational institutions. The College is shielded from liability for the infringing activities of the faculty only under certain limited circumstances. Briefly, if the infringing material is required or recommended for a course taught at the College by the infringing faculty member during the preceding 3 years, then the liability limitations do not apply.


      Swarthmore College policies and procedures related to the DMCA

      1. The Director of Information Technology Services is the designated agent registered with the U.S. Copyright Office for the purpose of receiving notifications under the DMCA.
      2. Upon receipt of a notice from a copyright owner, the Director shall determine whether it is in the form prescribed under the legislation and shall notify the relevant member of President's Staff, the infringing subscriber and the Copyright Policy Committee. These notifications will occur within 24 hours of receipt of the notice. (The "relevant" member of President's Staff depends on the identity of the subscriber. If the subscriber is a student - the Dean of the College; if a member of the faculty - the Provost; if a non-faculty employee - the President's Staff supervisor.) If the notice from the copyright owner is defective (e.g., not sufficiently specific to locate the allegedly infringing material, etc.), the Director will contact the copyright owner for clarification.
      3. If either the subscriber or a member of the Fair Use Committee believes that a claim of fair use is plausible, that individual must notify the Director within 3 business days of learning of the original notice. The Fair Use Committee will convene and consult with College Counsel to determine whether the "take down" procedure should proceed.
      4. Absent a fair use determination, within 10 business days of the receipt of a notification from a copyright owner the Director will take the steps required to remove the infringing material or to block access to it. Within 1 business day of this action, the Director will notify both the subscriber and the relevant member of President's Staff of the action.
      5. Upon receipt of a valid (as defined in the DMCA) counter notification, the Director will notify the copyright owner within 2 business days. Absent notice from the owner that the matter has been referred to a court, the director shall restore the material no less than 10 business days and no more than 14 business days after the owner is notified of the counter notification. A subscriber who wishes to argue that the material is not infringing should consult with her/his own private counsel and the Fair Use Committee prior to filing such a counter notification.
      6. The Director will keep records of copyright infringements identified by either the College or by copyright owners. Instances of subscribers who are repeat offenders will be referred to, as appropriate, the Dean of the College, the Provost, or the President's Staff supervisor for disciplinary action. When appropriate, these sanctions can include termination of all OSP services.
      7. Electronic mail is the normal means of communication for the notifications described in these procedures, unless otherwise specified by the DMCA. Written communication is also acceptable, but phone calls/voice mail are not sufficient.