Ethical and Legal Use of Digital Media: A Guide for Students, Faculty, and Staff of the University of Michigan.

Audio recordings and visual images can be expressed in movies, photographs, videotapes, paintings, compact discs, diagrams, cassette tapes, or maps, to list a few. Many visual and audio expressions, such as the roaring MGM lion, combine text with graphics or sound into a compositional whole that can be considered an audiovisual or multimedia work.

Today's technology enables us to access many different media in a timely, convenient fashion. However, the ease of access provided by modern digital technology may result in the use of works without full understanding of rights and responsibilities. Creating and using unauthorized copies of audio and visual works in either digital or nondigital format is not appropriate and may be illegal.

Facts about Copyrights

1. A work, in whatever medium, is protected by copyright law unless it has been placed in the public domain. Owners of copyrights hold exclusive right to the reproduction and distribution of their work.

2. Unauthorized use and distribution of copyrighted works is illegal. Copyright law protects creators and publishers, just as patent law protects inventors.

3. Unauthorized use and distribution of copyrighted works can harm the entire academic community. If unauthorized use and distribution proliferate on a campus, the institution may incur a legal liability. Also, the institution may find it more difficult to n egotiate agreements that would make copyrighted products more widely and less expensively available to members of the academic community.

4. Unauthorized use and distribution of copyrighted works can deprive creators and publishers of a fair return on their work and inhibit the creation of new works. Respect for the intellectual and creative work and property of others has always been essentia l to the mission of colleges and universities. As members of the academic community, we value the free exchange of ideas. Just as we do not tolerate plagiarism, we do not condone the unauthorized use and distribution of intellectual and creative work.

Respect for Intellectual Property Rights
Respect for intellectual labor and creativity is vital to academic discourse and enterprise. This principle applies to works of all creators and publishers in all media. It encompasses respect for the right to acknowledgment and the right to determine the form, manner, and terms of reproduction and distribution.

Because electronic and digital information is volatile and easily reproduced, respect for the work and personal expression of others is especially critical in digital environments. Violations of authorial integrity--including manipulation, plagiarism, una uthorized access, and copyright violations--may be grounds for sanctions against not only individuals but the entire academic community as well.

Questions You May Have about Ethical and Legal Use of Digital Media

1. I found a work I want to use. How do I determine if it is copyrighted?

   It is important to remember that every audio, visual, or textual work has copyright protection unless that protection has expired over time or its creator places it in the public domain. A work does not need to have a copyright notice or the copyright sy mbol to be copyright protected. It only needs to be fixed in a tangible medium of expression and contain a modicum of originality. A fixed medium includes, but is not limited to, film, audio and video tape, canvas, paper, and electronic storage. This mean s that even a person's snapshots, tape recordings, electronic mail, and home videos are protected by copyright.

2. What can I do to ensure that I use a copyrighted work legally?

   You generally must seek permission from the copyright owner to use all or any substantial portion of a copyrighted work. In the case of most copyrighted materials, the best place to start is the publisher, who is often authorized to give permission. If n ot, the publisher may be able to refer you to the copyright owner. Additional permissions may be necessary, depending on the content of the work. For example, a magazine might own the copyright on a photograph of a particular celebrity, but to use the pho tograph, permission may have to be obtained from the celebrity or the photographer as well as the publisher.

   When seeking permission to use a copyrighted work, always remember to be very specific about your intended use. Describe in detail such things as your role in using the work (educator, profit seeker, etc.); the medium or media in which the copyrighted wo rk will be used; how many times and in what way the copyrighted work will be duplicated, altered, or reproduced; how many people will see or consume the work; whether or not the intended use is for profit; and how the work is distributed (face to face or over a computer network). Giving such information to the publisher up front will likely enable you to secure permission for that specific use in a timely manner. Permissions to use copyrighted works are usually granted for specific, one-time uses, but mor e complex agreements for multiple and standing permissions can be negotiated. Depending on the nature of your intended use of the product and its commercial value, the owner of the copyright may or may not charge a royalty for permission. The amount of su ch a royalty is established through bargaining, not by law.

   If there is a likelihood that a permission will entail the payment of a royalty from University funds, you will have to involve a U-M purchasing agent (764-9204) at some point before concluding the agreement, often the earlier the better. Purchasing agen ts are experienced in such negotiations and contract language and, working in conjunction with the University staff member, are authorized to represent the University in such contractual negotiations.

3. Having obtained permission to use something, I can use it for anything I want, right?

   Not necessarily. Unless a standing permission to use a particular work for any purpose is negotiated, permissions to use copyrighted works are usually granted on a one-time basis for a specific use. A permission for one specific use is restricted to that one use; further permission must be obtained to make broader or additional uses of a work.

4. Isn't it all right to use anything I want as long as it's for nonprofit educational purposes?

   This is one of the trickiest and least understood areas of copyright law. Using a copyrighted work for educational purposes may be permitted under a legal doctrine known as "fair use," but any use for educational purposes is not permitted automatically. If in doubt, check with the copyright holder or the U-M Deputy General Counsel (764-0304).

5. What is fair use?

   Fair use is a legal doctrine developed through case law over many years and now embedded in copyright law. It permits courts to interpret the rigid terms of traditional copyright principles, so the creativity that copyright law is designed to foster won' t be stifled. According to Title 17 of the U.S. Code, fair use originated "for purposes such as criticism, comment, news reporting, teaching, . . . scholarship, or research." The doctrine of fair use recognizes that the exclusive rights inherent in a copy right are not absolute and that others are entitled to make use of a copyrighted work that technically would otherwise infringe on one or more of the exclusive rights.

6. What constitutes fair use of a copyrighted work?

   There are generally four factors that courts use to determine whether a particular use of a copyrighted work is fair use. These factors are for guidance and are not necessarily exhaustive.

   • The purpose and character of the use, including whether such use is commercial in nature or is for nonprofit educational purposes; educational purpose is more likely to be considered fair use.

   • The nature of the copyrighted work; that is, the extent to which the work is factual or creative. The more factual and less creative a work is (for example, a news report compared to a song), the more likely a use of the work is to fall under purview of t he fair use doctrine--all else being equal.

   • The amount and substantiality of the portion used in relation to the copyrighted work as a whole. Usually, only short passages of a literary work that do not convey or express the "heart" of the work are permitted under fair use. For the specific case of single visual images, this criterion is often difficult to meet, in that small subsets of an image are not always useful; visual images are usually used in their entirety.

   • The effect of the use on the potential market for, or value of, the copyrighted work. For a claim of fair use to hold, the owner or creator of the work should not suffer significant monetary damages from that particular use.

   Each of these four points must be considered before a copyrighted work can be used under the doctrine of fair use. Fair use is a complex legal concept, and specific principles of the law governing it are still evolving. There are no simple guidelines to follow. For specific guidance in this area, consult the U-M Deputy General Counsel at 764-0304 or a member of the U-M professional library staff.

7. Do I have to ask a publisher each time I want to use a copyrighted work? Not necessarily. You may be able to use the work under the fair use doctrine (see questions 5 and 6 above), and some exemptions for performance and display by universities and other nonprofit organizations are stipulated in the copyright laws. Additional ly, the U-M purchases site licenses for some materials. Managers of specific collections will be able to assist you in determining whether a site license is available for a work. What is and is not permitted is specifically spelled out in each agreement. If using site-licensed material, users need to be sure they are aware of, and comply with, the conditions of the agreement.

8. If I obtain permission to use a work, does that agreement extend to my class, my department, or the University as a whole?

   Only if such permission is explicitly stated. Agreements will state exactly which persons or groups within the University are entitled to use a work and for what purposes. For your department to use a product to which only you are given permission, an ad ditional agreement would have to exist between the University and the publisher extending permission to the department as a whole.

9. May I copy or record a work into a different medium?

   Regardless of whether you make an exact copy or edited version or, in some cases, create a derivative work from the original in a different medium, the copyright owner has the exclusive right to do or authorize the copying or creating of a derivative wor k. Making a copy in a different medium without appropriate authorization would be a violation of the owner's rights, unless the activity is excluded under other provisions of copyright law, such as fair use. The making of one copy of a work in a different medium may not be a copyright violation per se, but what you do or intend to do with that copy is important. For example, printing a posted photograph from a computer network just to look at it and then dispose of it may be legally different from printin g the image and then keeping it in a file. For concerns or questions about transforming and copying copyrighted material, consult the U-M Deputy General Counsel (764-0304), a member of the U-M professional library staff, or the particular copyright owner.

10. May I store or archive copyrighted works?

    Storing a copyrighted work is not always permissible under copyright law. For example, if an educator wishes to use a copyrighted work royalty-free, under the fair use provision, such use often must be spontaneous, not premeditated. If something is store d for the purpose of using it at some unspecified time in the future, the condition of spontaneity may not be met. If, however, a user obtains permission to use a copyrighted product, that user is often permitted to make one copy for back-up, especially o f volatile digital media such as software programs. In any case, you must always secure permission from the owner, if not previously stated, before storing any copyrighted work, unless your use would fall under an exclusion such as the fair use doctrine.

11. May I make copyrighted works available on the Internet?

    Only if you own the copyright or otherwise have permission to do so. If you do not have specific permission, the posting would have to fall under an exemption such as fair use. Meeting all the fair use conditions in this instance can be difficult. Often, the condition of not harming potential market value is not met. For example, you might not think it would harm sales of a magazine if you scanned a picture from the magazine and then distributed it on the Internet. This could be true, but the magazine it self might wish to sell issues over a computer network in the near future. In this case, your distributing the image takes away potential market value and is an unauthorized reproduction and an unauthorized public display of the work.

    Moreover, if a work is distributed via a computer network, you should not assume it is fair game to use for any purpose. Some products on computer networks are made available with copyright notices. Many are not. Liability for unauthorized copying and di stribution can extend not only to the person who might post something but also to those who access, download, and forward the items. In the case of distributing copyrighted materials over a network for educational purposes, fair use would not necessarily cover the action because the teaching is not done in a face-to-face manner. The user would incur any liability for improper use. If you have questions, check with the administrator of the network, bulletin board, or other service where the work is availab le.

12. What Can I Do If I Suspect a Violation of Copyright on a U-M Web Site?

    See information on the Digital Millenium Copyright Act at the User Advocate Web site.

For More Information
To read the specifics of copyright law, consult the United States Code (17 USC, sections 106 and 107) in the Documents Center on the second floor of the Graduate Library; or access copyright law online via the Library of Congress gopher site.

To access copyright law and additional information online about U-M and remote resources related to copyright, see the University Library's World Wide Web Copyright Information page.

For specific questions regarding intellectual properties, copyrights, trademarks, or patents, contact the U-M Deputy General Counsel at 764-0304.

Alternatives to Explore
If all this sounds tricky and complicated, you're right; it is. However, the University of Michigan is committed to providing support for the members of its community as we endeavor to use copyrighted works ethically and legally. Purchasing and obtaining permission to use copyrighted works and products can be expensive, but there are legal alternatives. Here are some ways to obtain digital and nondigital copyrighted works legally:

Privately Owned and Copyrighted Materials
Permission to use the work must be sought and obtained from the copyright owner or publisher. See question 2 above.

U-M Owned and Copyrighted Materials
Obtain permission to use the work from the department that administers it. For further information regarding the use of U-M owned and copyrighted materials, contact the Deputy General Counsel at 764-0304.

• The University seal and the words "University of Michigan" are trademarked and owned by the University of Michigan. For information regarding use of the seal, contact the Assistant to the Secretary of the University at 764-3883.

• University symbols such as the block "M" and certain typefaces of "MICHIGAN" are also owned and trademarked by the University. These particular trademarks are administered by the Athletic Department. Use of these trademarks is often made available for non profit campus purposes. For further information, contact the Associate Director of Athletics at 763-2425.

• The song "The Victors" is also copyrighted by the University. For information regarding its use and other U-M musical compositions, contact the University of Michigan Marching Band at 764-0582, option 4.

• Other specific products that are owned by the University may be administered by the originating departments.

Other U-M Owned Materials
U-M owned material for which no copyright claims have been registered may also be available. Prior to the use of these products, permission should be requested from the U-M department administering them. Permission for use is often granted. It should be n oted that, even if copyright claims are not registered, copyrights exist on any piece of work that has been expressed in any fixed medium. Therefore, seeking permission prior to use is not only a courtesy but prudent practice as well.

U-M owned but not necessarily registered copyrighted works include maps, graphics, photographs, and slides:

• Maps of the University are generally available for educational use. For information regarding permission to use University maps, contact the Administrative Manager to the Associate Vice President for Business Operations at 764-3402.

• Visual images of University buildings and structures may be available for nonprofit educational use depending on their specific content. For information regarding permission to use images of University structures, contact the photographer at News and Info rmation Services, 764-7260.

U-M Site-Licensed Materials
Site licenses are a convenient source for obtaining copyrighted works because the University has already clarified the ownership and permission issues. Before using something from a site-licensed collection, make sure your intended use is covered by the s ite-license agreement. Managers of site-licensed collections will be familiar with the details of the license agreement or will direct you to the pertinent language of the license.

Public Domain Items
Works that are in the public domain and are designated clearly as such are available for use by members of the U-M community without permission. It is often very difficult to determine if something is in the public domain. For example, the copyright on th e music and lyrics of a song may have expired, but a particular recording of that song may still be copyrighted. You must be certain that something you wish to use has come into the public domain through the expiration of its copyright or has been placed in the public domain by its creator. For information on determining the public domain status of a particular work, contact a member of the U-M professional library staff.

Shareware
Products that are identified as "shareware licensed," like software so designated, are available for use in compliance with their license, which generally requests a small payment for use after the fact. Few audio or visual images or image collections are in the shareware category.

Unclear Ownership
Many works have unclear ownership because their copyright ownership has changed over time through publishing or display, or because they have so often appeared in public performance and display that their ownership has become unclear. This is the most dif ficult and problematic category of use of intellectual property. The law itself often is not clear. Before using something that has unclear copyright ownership, seek as much assistance in clarifying ownership as possible.

Restrictions on the use of copyrighted works vary widely from publisher to publisher. Check each work carefully before using or distributing it. Exercise your responsibility to the community: Do not receive, use, or distribute unauthorized copies of copyr ighted works. Responsible use will enhance the University's ability to negotiate license and royalty agreements that will benefit the campus as a whole.

At the University of Michigan:

• You have a right to a safe and secure computing environment.

• You have a right to protection from misuse and abuse of intellectual and creative products and property.

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For more information, please contact the IT User Advocate at abuse@umich.edu
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