Copyright & Fair Use

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Copyright & Fair Use

 Last Updated: 12.2020

Approved by: Efrat Sagi, Adv., Ben Ari, Fish, Saban & Co., Law Office and Notary (Technion Legal Counsel)

The Copyrights Law, 5768-2007 determines the legal framework to defend copyrights in Israel.

Pursuant to the Law, copyrights is the exclusive right to use work, or a material part thereof, by way, for example of publication, copying, exhibiting in public, distribution, broadcasting etc.

As a general rule, it is prohibited to make such uses of materials protected by copyrights, such as texts or articles, images, illustrations, maps, sections of sounds, video clips, graphics and software applications and the like, without obtaining permission – in advance and in writing – from the copyrights owners.

License Agreements

License agreements between the Technion and the publishers constitutes an exception to the general prohibition of unauthorized use of protected materials.  

These agreements permit the entire Technion to make use of periodicals, electronic books and accessible repositories in the Technion libraries portal, for teaching and research needs solely at the Technion, according to the terms of the license agreement.

Inter alia, pursuant to the license agreements, protected materials from these sources are not to be transferred to entities outside the Technion, entities outside the Technion are not permitted to make use of them (except according to the license terms), and as a general rule, no use is to be made of them that is unrelated to studies, teaching and research at the Technion.

a person not acting according to the License agreements  is infringing the copyrights and the terms of the license and is exposed to legal proceedings by the copyrights owners, as well as disciplinary proceedings by the Technion.

Furthermore, a breach of the license agreements may lead to restricting access to these sources for all of the Technion.

Fair Use

“Fair Use” is an additional exception to the general prohibition of unauthorized use of materials protected by copyrights. The exception, determined in Section 19 of the copyrights law, permits “fair use” of a work for learning, study, teaching and examination purposes by an educational institution.

Fair use means, for example, a reasonable citation of the protected material, while stating the source of the citation for research and/or teaching purposes. It is noted that fair use prohibits the User from making any distortion, mutilation or other modification, or any actions that may reduce the value of the protected material, or likely to be prejudicial to the rights owners honor or reputation.

The fair use principle is designed to strike a balance between the copyrights owners right in the work and the users right. The practice is naturally flexible, and there is no simple way to determine when a use will be considered “fair use”.

In order to provide practical tools to interpret use as fair use for the purpose of improving accessibility of teaching and research materials protected by copyrights while honoring copyrights, the “Accessible Education” project authored operative rules outlining fair use best practices in higher education (Code of Best Practices). The best practices were adopted by the academic libraries in Israel. The rules are accessible on the Project’s website.

From the principles document of the accessible education forum, hereunder is the gist of the rules pertaining to accessibility of works for teaching purposes through digital means (such as electronic copies, online syllabuses, or making the full text accessible on the course website):

Preconditions:

  • in works which are teaching material, the lecturer needs for the course being taught at the Technion, for students at the Technion. The necessary use needs to be proportionate, meaning to the extent necessary for the course work and no more.
  • Those works should not have free access through open sources over the internet. If there is an open source then it should be used.
  • The Technion library has lawful access to at least one copy of the works.

Accessibility to the Works:

  • The works used shall only be accessible to students registered for the course and to the relevant course staff (academic and administrative), through the Moodle system or similar system, only for the academic period and for exams. Distribution or granting access to any other entity who does not belong to the Technion is prohibited.
  • A notice will be displayed regarding the obligation to honor the copyrights and not to distribute the materials

In relation to the scope of the use of the work, the following uses shall be considered fair use:

  • Use of a scope of approximately one fifth of a book. Not only checking quantitatively but also qualitatively.
  • Use of one article of a periodical or book that is a collection of books, in its entirety.
  • When the work cannot be divided (such as an image, table, chart, song), use can be made of the work as a whole.

The aforementioned does not constitute a closed list of rules. In any case of doubt, or need to make materials accessible of a scope that exceeds the aforementioned rules, , specific advise can be requested, through the central library manager, whether the requested use meets the definition of fair use.

Credit must be given to the author of the work for any use of work or part thereof.

Making Teaching Materials Accessible Perusall (Moodle):

  • Use can be made of an Addendum according to the current guidelines in connection with fair use of copyrights.
    • Meaning, if the lecturers are interested in reproducing articles to the Addendum, they must comply with the scope of use and manner of use rules of the work mentioned above.

For Further Reading:

Help pages to identify works in the public domain for the “Public Domain Archives, 2020” Project

 

This guide addresses issues concerning use of Third Party Materials in MOOC courses with an emphasis on courses on the Coursera platform. Reference can be found in the guide for all types of contents that can be combined in course presentations.

General Issues With Regard To Copyrights on the Coursera Platform

 Coursera is a profit organization, therefore use of Third Party materials, without the copyrights owner’s permission under the “Fair Use” exception is limited. In general, Third Party protected materials must not be used without obtaining permission from the copyrights owner, unless referring to short citations.

For this reason it is recommended, insofar as possible, using original materials in the course and to use external materials only if there is no other alternative, and subject to the provisions hereunder. In any case the source of the material must be referenced.

It is hereby stressed that ideas are not protected by copyrights but rather only the way they are expressed, therefore, repeating an idea in another manner does not infringe the idea owner’s rights. Similarly, facts, methods and procedures, and mathematical expressions are not protected by copyrights.

In general, publishers, and specifically publishers of textbooks tend to approve the use of material (text, image, graph) more than a book or article in your recorded lectures, if the book/ article appear in the recommended bibliography for the course, or if the text includes a recommendation to purchase the original book or link to the website on which the students can purchase the book.

It is important to know that in case an infringement of copyrights is discovered in a Coursera course, Coursera may close the course immediately and without any advance notice.

Copyrights Symbolization

It is important to recognize and check the symbolizations relating to the copyrights in the material:

  • The premise is that all original material (text, image, graph etc.) is protected by copyrights, unless expressly stated otherwise. There is no need for a special symbol to safeguard copyrights.
  • The © symbol means that the material is protected by copyrights. (however as stated above, even if there is no such symbol, the premise is that the material is protected.
  • The Creative Commons (CC) Organization has an alternative symbolization method – that allows use of material under certain conditions. If you come across the CC symbol, read the explanations on the Creative Commons website. We shall note here that the NC symbol means that use can be made of material only for non-commercial purposes, and therefore if the symbol CC-NC appears the material cannot be used in the framework of Coursera or any other framework for profit, except with permission by the copyrights owner.
  • Materials can be used from websites which expressly state that they are open for free use, including use for profit.
  • Materials can be used that are in the public domain, for example works whose author has passed away more than 70 years ago, or materials which expressly state they are in the public domain. The government publications are usually public domain.

Fair Use Considerations in MOOC Courses

As stated above, use of third party materials, in reliance upon the “fair use” rules is limited, when referring to use for profit. The “fair use” exception can be used according to the following intentions:

  • Use of short citations, provided that there are not multiple citations from the same work.
  • Use of “factual” materials and not those based on creativity. For example: use of a research graph illustrating only facts published in a science article shall more reasonably be considered fair use than through a work of art, relying more on creative interpretation and not exhibiting facts.
  • Use of materials for direct critique purposes. For example: presenting a photocopy to demonstrate the problems with the photocopying technique.
  • Use of material in a transformative manner, meaning the purpose of the use for the course is totally different than the original purpose of the material. For example: presenting such or other images to show differences or adding interpretations/ drawings on an existing image to stress certain aspects.

In all of these cases it is important to only use what is necessary for the course purposes and in a manner that does not prejudice the creativity market in which the use is made.

 

Use of Textual Materials

  • Use of short citations from books, articles or other textual materials integrated into a lecture and/or accompanying slides, shall usually be considered “fair use” that does not require the rights owner’s approval.
  • Extensive use of text (beyond a short citation) usually requires the rights owner’s approval. Pay attention that usually the rights owner is the publisher and not the author.
  • The publishers tend to more freely approve use of a text whereby its author is the applicant, therefore it is recommended using materials that were written / authored by you, even if the rights were transferred to the publisher.
  • It is recommended checking whether the articles exist in the Open Access (OA) repositories such as Pub Med or institutional archives.

Use of Images

  • The use of illustrations, graphs, tables etc. of third parties must only be used if necessary for a lesson topic, with the image accompanying the discussion, interpretation or critical assessment.
  • The chosen material needs to be from diverse sources, and not to rely on one source. The number of images from the same source needs to be limited.
  • To the extent possible, to use authorized material (such as: an image having a Creative Commons license permitting commercial use or material that is in the public domain)
  • No use is to be made of an image/ illustration of a third party, if they are not necessary for the course topic (for example – merely for esthetical purposes) – unless the material is authorized.

Use of Voice / Video Files

  • Coursera recommends not making use of video clips or popular music with the rights owner’s approval. Use of old or classic audio material is less problematic, however also requires checking the copyrights.
  • It is recommended using documentary, educational, historic material according to the guidelines of the use thereof.
  • It is possible to refer to external links so long as the reference to content of the original owners is verified, for example: a video clip on YouTube – the rights owner’s original clip must be referenced and not one that was uploaded by a third party.
  • It is preferred to create a link to an available voice file over the internet. Thus students can click on the external link and thereafter return to the lecture website. This is preferred in cases in which the file is supposed to be heard before continuing/ starting the lecture.
  • The files will not be longer than necessary to get the deductive point across.
  • A combination of voice/ video file not constituting grounds to a discussion, other than by creating a link, compels obtaining the approval of the rights owner.

Comment: combining significant quantities of voice or video files that are not original increases the risk of an infringement of copyrights, following which the course will be closed.

 

Sources to identify materials unrestricted for use:

  • CC – Creative Commons – alternative rights regime in which the rights owner (the creator) determines the permitted type and manner of use. It is important to verify that the requested use is suitable for the authorization symbols
  • Wikimedia Commons – free media file repository of images, sound and video clips.
  • Pixabay – public domain containing images that can be used freely and unlimitedly.
  • Connexions – a system through which educational material can be distributed in the OA. Currently supports a number of courses on Coursera. It can be used to provide free study materials to students (including books).

In conclusion: sources that usually cannot be used without the rights owner’s permission:

  • Political Caricatures
  • Images from commercial repositories such as Getty images
  • Movies/ Television Series
  • Music Recordings

Any question relating to examining and choosing materials for MOOCS courses can be referred to the faculty library.

Many examples can be found over the internet of letter templates to request permission to use protected materials. e.g from the Geneva University website.

Publication through the OpenAccess (OA) approach 

OA constitutes academic publication access, in which the research products (articles, books, theses etc.) are fully available to the public and to be used freely. 

For complete information relating to open access publication and all the important consideration can be found on the designated page that we established on the libraries portal.

Author of Articles? Here are a couple of things that are important to know about copyrights

Copyrights is a comprehensive expression of a collection of legal rights relating to the use and distribution of an original work.

Publication of an article in a periodical constitutes “use and distribution” of the article, and therefore requires the consent of the author of the article.

In the publication process practiced today, the author’s consent to publish the article is granted by transferring all or some of the copyrights, to the published.

In this manner the author is likely to lose control on the rest of the article’s life and to require the content of the publisher for any future use made thereof.

Such uses can be by uploading an article to the author’s website or of the faculty in which he teaches, sharing the article in academic networks, archiving the article in a personal archive or depositing it in an Institutional Repository (IR or field) such as ArXiv).

My Article – My Rights?

In order to know what rights the author has in an article that has already been published, the specific agreement that the author signed vis-a-vis the publisher must be examined.

The general copyrights policy for every publisher appears, for the most part, on the publisher’s website. Hereunder are a number of examples to describe the policies of leading publishers:

Springer – Nature

Elsevier

IEEE

CAMBRIGE

Taylor & Francis

Wiley

 SHERPA-RoMEO search engine reconciles the policy lines of various publishers regarding the topic. The information that is exhibited on Sherpa/Romeo includes: distribution policy, permitted version for deposit in an institutional repository, the Embargo Period, type of license, sites permitted for deposit and direct links to the publishers’ policy pages relating to the specific copyrights.

 

Hold tight to your own rights!

Modern trends in the academic world relies inter alia on the promotion of the Open Accessmovement, seeking to encourage authors to maintain ownership of their articles.

There are a number of options to conduct yourself properly vis-a-vis the publisher:

Choosing a Suitable Creative Commons(CC) License at the time of Signing a publishing agreement with the publisher. The license determines the distribution and use terms of the publication. The types of licenses leaving most of the rights with the author are CC BY 4.0 (for documents), CC0 (for data) and GNU-GPL (for software and codes), however all the publishers enable the choosing thereof. It is important for the author to be familiar with the various types of licenses to understand the terms offered by the publisher and to make the correct choice. Being familiar with the type of license agreed with the publisher will also help the author to define the terms of use of his publication if and when he wishes to deposit it in an intuitional or field repository. A designated tool of CREATIVE COMMONS allows the author to tailor the relevant type of license pursuant to the characteristics he requires (distribution, sharing etc.).

Signature Request on License to Publish (License to Publish) instead of the practiced transfer of rights agreement. The License to Publish grants the publisher a permit to publish the article, however the author keeps the copyrights.

Use of a designated Addendum for the agreement between the author and the publisher regarding publication.If the requested license is not included in the publisher’s terms and the publisher allows for changes to be made to the agreement, it is possible to offer an Author Addendum seeking to guarantee the author’s rights. Use can be made of the proposed format on the Creative Commons website. Including consent to leave the rights with the author. The document can be generated digitally, on the Creative Commons website.

Addressing a publisher with a request to leave necessary rights freely drafted. If a researcher intends on depositing the publication in an institutional or field repository it is possible to reach an agreement with the publisher that various versions of the material shall be deposited. Similarly, it is possible to ask to leave the publication on the personal websites and/or scientific social networks such as ResearchGate and others in the case of transferring rights to the publisher (below is a link – to the Sharing and Deposit Platforms” Page). It is important to mention the relevant platforms in the request to the publisher.

Example of possible agreement formats:

‘The author of the publication hereby grants founding rights to the publisher to publish the essay and to be the copyrights owner of the work. Furthermore, the publisher undertakes to allow the granting of a suitable license to the public, thus anyone can copy, translate and share the work on any one of the existing medias. The accurate reproduction of an essay needs to be approved by the author of the work and the publisher, which shall not be withheld so long as approval is required for studying, teaching and research needs. A work can be used at any time once suitable credit is given”.

“The author grants to the Publisher exclusive first publication rights in the Work, and further grants a non-exclusive license for other uses of the Work for the duration of its copyright in all languages, throughout the world, in all media. The Publisher shall include a notice in the Work saying “© [Author’s Name]. Readers of this article may copy it without the copyright owner’s permission, if the author and publisher are acknowledged in the copy and copy is used for educational, not-for-profit purposes”

Sharing your work with others

Once the author’s rights are secured, he may make his work accessible through the article archiving (i.e. placing a copy of the article) in theinstitutional repository or OpenAccess field.

Creative Commonslicenses enable an author to determine which uses for the public at large are permitted with regard to an article and under which conditions.

Which version is permitted to be deposited in the institutional repository?

Only some of the publishers allow for the deposit of the final version including the publisher’s logo, periodical format etc.).

If the license so permits, the publisher can specify which versions the author can upload to the public in the repositories. There are 3 options for doing so, Pre-Print, Post-Print, Published-Version (illustration in an image attached to text).

It is very important to choose the most appropriate license content accordingto the various considerations of the author and the financing entities requirements (the research funds), which may also address the types of versions permitted for depositing.   The research funds requirements are detailed on the Sherpa/Juliet website.

Pre-post print

Source of Picture: https://en.wikipedia.org/wiki/Postprint

The impediment with respect to publishing period (Embargo Period)

The Embargo Period is defined as a period of time during which the material received for publishing cannot be deposited in the repositories (according to the license terms). Every publisher determines his own Embargo Period. Periodicals of the same publisher can define different Embargo Periods. To check the Embargo Period, you must contact the Publisher’s website. The Sherpa-Romeo Repository can be used to check this information.

For Further Reading:

  • Information Page for Researchers regarding Copyrights and Authors Rights:

An Introduction to Copyright Resources for Authors

  • Tool to tailor license:

Choose an open source license

  • Special tool to create a copyrights Addendum for researchers:

The Scholar’s Copyright Addendum Engine – SCAE 

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