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The following guidelines should be followed with respect to the use of third-party materials in the instruction of Goshen College courses. The guidelines do not attempt to cover every situation that may arise in teaching a Goshen College course. Thus, if your instant situation is not addressed by the guidelines set forth below, please contact the Head of Learning Technologies for assistance.
Before you decide to bypass these guidelines and rely on "what you know" about copyright law, consider your personal liability for copyright infringement. Individuals are liable for their own actions. Copyright owners have sued, and will likely continue to sue individuals.
The penalties for copyright infringement are significant. A copyright owner may not even have to prove that she was actually harmed (i.e., suffered lost sales) by electing to accept statutory damages which range from $750-$30,000 for each act of infringement. Further, a court may award enhanced damages for each separate act of willful infringement up to $150,000. Willful infringement occurs when you know that what you were doing constituted an infringement, but you did it anyway. In addition to damages, costs of such a suit include attorney's fees for defense, damage to your professional reputation and damage to the reputation of Goshen College.
One provision of the copyright law allows a court to reduce the amount of statutory damages to a sum of $200 if the infringement at issue was not a fair use. It is called the good faith use defense. The catch is that it only applies if the alleged infringer reasonably believed that what he or she did was a fair use; such as would likely be the case if you followed these guidelines and Goshen College’s policies. If you follow these guidelines, this provision of the law makes you a less desirable defendant. On the other hand, if you choose to disregard sound advice about copyright law and "fair use," a court would be free to award the highest damages allowable under the law.
There is always much discussion about "fair use," particularly in the academic context. However, there are many misconceptions regarding the copyright doctrine of "fair use." For example, it does not provide that academic use of materials is always a fair use absolving the teaching professional from having to obtain permission from the copyright holder to make use of the materials. Further, that only a small portion of the entire work is used without permission does not permit use without the author's permission. Nor does simply citing the author in a footnote make an unauthorized use a fair one.
The main problem with the fair use doctrine is that the outcome of its application in a given case is determined by a four-part subjective test. We all wish that this were a well-settled area of the law that would permit the drawing of bright lines delineating "fair uses" from non-fair use. Unfortunately, these cases still make their way to the Supreme Court on occasion, which indicates that practitioners in this field of law can disagree on what constitutes a "fair use" of copy written materials.
Recently, a conference was convened (the Conference on Fair Use "CONFU") to discuss the applicability of "fair use" in a distance education. Unfortunately, the guidelines that emerged from this conference explicitly apply only to non-profit, non-commercial activities by traditional universities. More significantly, CONFU participants felt that the performance and use of the works of others in courses delivered online was so new that to attempt to present guidelines covering such situations would be inappropriate.
What is a "fair use" is a difficult question in all cases. That we conduct our business in the digital world provides even less certainty, as the proper application of ages-old doctrines of copyright law to the digital realm has yet to be determined. That we are a for-profit academic institution only further complicates the issue. We provide a discussion of the four factors that comprise the Fair Use Test in Appendix A—not so that you can ignore the guidelines that follow, but to show how the difficult and uncertain balancing test is played out.
In order to balance the risks embodied in the area of copyright law and the emerging jurisprudence applying it to the digital realm, we have developed the following guidelines for you to follow when acting as a Goshen College faculty member. You are not authorized to contact any party on behalf of Goshen College to obtain permission to use materials in the instruction of a Goshen College course, and you may not use any materials except as permitted by these guidelines. In addition, when posting or suggesting materials for students to review, we expect you to conduct yourself in accordance with the high academic standards of Goshen College and all applicable policies and practices. If you have questions regarding these guidelines, please contact the Head of Learning Technologies for assistance.
Embedding Materials in Discussion Areas
You may embed the following types of materials in the discussion area of a course:
Providing Links in Discussion Areas
Providing a link to an article in a discussion area rather than embedding the article itself is not the answer. Indeed, under the law the trend is to treat these two acts as one in the same. Whenever you consider placing links to third party materials in any discussion area, you must follow the following guidelines.
Providing Directions to Another Web site
You may provide directions to another party's Web site, including to a page other than a homepage, by either:
These guidelines are provided to assist you in respecting the intellectual property of others while teaching a Goshen College course. We understand that you may still have questions even after reading all of this material. In such a case, please contact the Head of Learning Technologies for assistance.
Reviewed December, 2014, updated July 2018