Cambridge University Press et al v. Patton et al

Filing 300

RESPONSE re 279 Order, Proposed Injunctive Relief filed by Cambridge University Press, Oxford University Press, Inc., Sage Publications, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Rains, John)

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E X H I B I T 5 FACULTY HANDBOOK NEW YORK UNIVERSITY A private University in the Public Service PUBLISHED 2008 BY NEW YORK UNIVERSITY EXHIBIT 5 - 1 Table of Contents Page Introduction i i ii iii LETTER FROM THE PRESIDENT ETHICAL COMMITMENT FOREWORD The University HISTORY AND TRADITIONS OF NEW YORK UNIVERSITY A Brief History of New York University University Traditions ORGANIZATION AND ADMINISTRATION The University Charter The Board of Trustees University Officers The University Senate University Councils and Commissions Organization of Schools, Colleges, and Departments LIBRARIES A Brief History Library Facilities and Services New York University Press PUBLIC AFFAIRS OFFICE FOR UNIVERSITY DEVELOPMENT AND ALUMNI RELATIONS University Development Alumni Relations The Faculty ACADEMIC FREEDOM AND TENURE Title I: Statement in Regard to Academic Freedom and Tenure Title II: Appointment and Notification of Appointment Title III: Rules Regulating Proceedings to Terminate for Cause the Service of a Tenured Member of the Teaching Staff, Pursuant to Title I, Section VI, of the Statement in Regard to Academic Freedom and Tenure Title IV: General Disciplinary Regulations Applicable to Both Tenured and Non-Tenured Faculty Members OTHER FACULTY POLICIES Faculty Membership and Meetings Faculty Titles Responsibilities of the Faculty Member Compensation Sabbatical Leave Leave of Absence (paid and unpaid) Faculty Grievance Procedures EXHIBIT 5 - 2 1 1 1 5 7 7 7 7 10 12 13 15 15 16 17 18 19 19 19 21 21 21 29 32 38 41 41 42 46 50 51 52 56 Retirement University Benefits Legal Matters SELECTED UNIVERSITY RESOURCES FOR FACULTY Office of Faculty Resources The Administration of Sponsored Research and Training Faculty Resource Network The Center for Teaching Excellence Visiting Scholars Program The Students THE ADMINISTRATION OF STUDENT AFFAIRS Office of Student Life Student Affairs at the School of Medicine Academic Discipline Student Press Privacy of a Student’s Educational Records Selected University Policies SELECTED POLICIES CONCERNING THE PROTECTION OF RIGHTS AND OTHER MATTERS NYU Code of Ethical Conduct (6/22/99) Statement of Policy on Equal Opportunity and Anti-Discrimination (6/19/72) Affirmative Action Policy (6/19/72) Anti-Harassment Policy (2006) Preventing Threatening or Violent Behavior in the Workplace (2003) Statement of Policy on Faculty Responsibility to the University (12/10/84) New York University Supplemental Guidelines for Disclosure and Review of Conflicts of Interest in Research (2/9/95) Legal Protection for Faculty Members (12/14/81) Procedures for Termination or Reorganization of Academic Programs (12/10/79 and 12/1/97) Policy on the Employment of Members of the Same Family (long standing) University Practice with Respect to Memberships and Subscriptions (10/4/71) Guidelines for the Implementation of the Family Educational Rights and Privacy Act of 1974 (11/19/74) Guidelines for Sponsored Research (4/26/06) Principles and Procedures for Dealing with Allegations of Research Misconduct (4/17/86 and modified administratively September 2007) Conflict of Interest (5/23/66) Statement of Policy on Patents (11/26/56) Statement of Policy on Copyrights (1/24/72) Statement of Policy on Computer Software Copyrights (6/5/89) Statement of Policy on Photocopying Copyrighted Materials (5/9/83) Statement of Policy on Honorary Degrees (11/25/68) EXHIBIT 5 - 3 Page 59 59 60 62 62 62 64 65 65 66 66 66 66 67 67 67 68 68 68 71 72 73 77 79 81 84 86 88 88 89 90 92 97 100 104 105 107 113 Page SELECTED POLICIES CONCERNING GOOD ORDER IN THE CONDUCT OF UNIVERSITY AFFAIRS Guidelines for the Use of University Facilities (5/13/71) New York University Rules for the Maintenance of Public Order (5/26/69) Statement of Policy on Student Conduct at New York University (2/29/68) Student Disciplinary Procedures (2/9/78) Policy on Solicitation (10/14/68) Speakers and Other Campus Visitors (2/29/68) Guidelines Regarding Protest and Dissent (5/2/91) Policies on Substance Abuse and Alcoholic Beverages (2007) Statement of Policy on Smoking (1995 and updated 2003) EXHIBIT 5 - 4 115 115 119 123 125 132 132 133 138 141 Statement of Policy on Photocopying Copyrighted Materials (Policy Statement on Photocopying of Copyrighted Materials for Classroom and Research Use Approved by the Board of Trustees, May 9, 1983) In December, 1982, nine publishers commenced a lawsuit against the University and nine members of the faculty (as well as an off-campus copy shop) alleging that the photocopying and distribution of certain course materials, without the permission of the copyright owners of the materials, violated the Copyright Act (17 U.S.C. §§ 101 et. seq., 90 Stat. 2541, Pub. L. 94-553). It has become increasingly clear that the subject of photocopying for classroom and research purposes is of significant concern to the faculty, who have inquired about issues such as when photocopying may be done without the consent of the copyright owner; when and how permission to photocopy should be obtained; how exposure to liability may be reduced; and under what circumstances the University will defend them against claims of copyright infringement arising out of photocopying for classroom and research use. To assist the faculty in resolving these issues, to facilitate compliance with the copyright laws, and as part of the settlement of the publishers’ lawsuit, the University is issuing this Policy Statement9. 1. 2. 9 The principles of the copyright law are designed to promote the creation, publication, and use of works of the intellect. These principles include both the exclusive rights of copyright owners to determine certain uses of their works (in not-for-profit as well as commercial contexts), and certain exceptions including the doctrine of “fair use”. These precepts are in the mutual interest of the university, author, and publisher communities and of the public. Under the copyright laws, certain photocopying of copyrighted works for educational purposes may take place without the permission of the copyright owner under the doctrine of “fair use” (presently set forth in Section 107 of the Copyright Act). This principle is subject to limitations, but neither the statute nor judicial decisions give specific practical guidance on what photocopying falls within fair use. To achieve for faculty greater certainty of procedure, to reduce risks of infringement or allegations thereof, and to maintain a desirable flexibility to accommodate specific needs, the following policies have been adopted by the University for use through December 31, 1985 (and thereafter, unless modified). On or before December 31, 1985 the University will review these policies to determine their effect and whether modifications, based on our experience, might be needed. If members of the faculty experience any problems or have suggestions, they are asked to communicate them to the Office of Legal Counsel. This Policy Statement supersedes the document entitled “Interim Guidelines Concerning Photocopying for Classroom Research and Library Use” which was distributed on January 18, 1983. 107 EXHIBIT 5 - 5 A. The Guidelines set forth in Appendix I are to be used to determine whether or not the prior permission of the copyright owner is to be sought for photocopying for research and classroom use10. If the proposed photocopying is not permitted under the Guidelines in Appendix I, permission to copy is to be sought. An explanation of how permissions may be sought and a procedure for furnishing to the administration information concerning the responses by copyright owners to requests for permission is set forth in Appendix II. After permission has been sought, copying should be undertaken only if permission has been granted, and in accordance with the terms of the permission, except as provided in the next paragraph. B. The doctrine of fair use may now or hereafter permit specific photocopying in certain situations, within limitations, beyond those specified in the Guidelines11 or those that might be agreed to by the copyright owner. In order to preserve the ability of individual faculty members to utilize the doctrine of fair use in appropriate circumstances without incurring the risk of having personally to defend an action by a copyright owner who may disagree as to the limits of fair use, a faculty member who has sought permission to photocopy and has not received such permission (or has received permission contingent upon conditions that the faculty member considers inappropriate) may request a review of the matter by General Counsel of the University. If upon review the General Counsel determines that some or all of the proposed photocopying is permitted by the copyright law, the General Counsel will so advise the faculty member. In that event, should any such photocopying by the faculty member thereafter give rise to a claim of copyright infringement, the University will defend and indemnify the faculty member against any such claim in accordance with the provisions of the Board of Trustees policy on Legal Protection for Faculty Members (see page 84). 10 To minimize intrusiveness and over-centralization, the responsibility for making this determination will continue to reside with the individual faculty member. In making this determination, the faculty member should carefully consider all sections of the attached guidelines. 11 The guidelines contained in Appendix I were negotiated by education, author, and publishing representatives in 1976 and were incorporated in the House of Representatives report accompanying the Copyright Act of 1976. The introductory explanation of the guidelines in the House Report describes their relationship to the doctrine of fair use as follows: Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions With Respect to Books and Periodicals The purpose of the following guidelines is to state the minimum standards of educational fair use under Section 107 of H.R. 2223. The parties agree that the conditions determining the extent of permissible copying for educational purposes may change in the future; that certain types of copying permitted under these guidelines may not be permissible in the future; and conversely that in the future other types of copying not permitted under these guidelines may be permissible under revised guidelines. Moreover, the following statement of guidelines is not intended to limit the types of copying permitted under the standards of fair use under judicial decision and which are stated in Section 107 of the Copyright Revision Bill. There may be instances in which copying which does not fall within the guidelines stated below may nonetheless be permitted under the criteria of fair use. 108 EXHIBIT 5 - 6 C. In the absence of the determination and advice by the General Counsel referred to in paragraph B, or in the event that permission has not been first requested by the faculty member as provided in paragraph A, no defense or indemnification by the University shall be provided to a faculty member whose photocopying gives rise to a claim of copyright infringement. Appendix I: Guidelines I. Single Copying for Teachers A single copy may be made of any of the following by or for a teacher at his or her individual request for his or her scholarly research or use in teaching or preparation to teach a class: A. B. An article from a periodical or newspaper; C. A short story, short essay or short poem, whether or not from a collective work; and D. II. A chapter from a book; A chart, graph, diagram, drawing, cartoon or picture from a book, periodical, or newspaper. Multiple Copies for Classroom Use Multiple copies (not to exceed in any event more than one copy per pupil in a course) may be made by or for the teacher giving the course for classroom use or discussion; provided that: A. The copying meets the tests of brevity and spontaneity as defined below; and B. Meets the cumulative effect test as defined below; and C. Each copy includes a notice of copyright. Definitions Brevity (i) Poetry: (a) A complete poem if less than 250 words and if printed on not more than two pages or, (b) from a longer poem, an excerpt of not more than 250 words. (ii) Prose: (a) Either a complete article, story or essay of less than 2,500 words, or (b) an excerpt from any prose work of not more than 1,000 words or 10% of the work, whichever is less, but in any event a minimum of 500 words. [Each of the numerical limits stated in “i” and “ii” above may be expanded to permit the completion of an unfinished line of a poem or of an unfinished prose paragraph.] 109 EXHIBIT 5 - 7 (iii) Illustration: one chart, graph, diagram, drawing, cartoon or picture per book or per periodical issue. (iv) “Special” works: Certain works in poetry, prose or in “poetic prose” which often combine language with illustrations and which are intended sometimes for children and at other times for a more general audience fall short of 2,500 words in their entirety. Paragraph “ii” above notwithstanding such “special works” may not be reproduced in their entirety; however, an excerpt comprising not more than two of the published pages of such special work and containing not more than 10% of the words found in the text thereof, may be reproduced. Spontaneity (i) The copying is at the instance and inspiration of the individual teacher, and (ii) The inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission. Cumulative Effect (i) The copying of the material is for only one course in the school in which the copies are made. (ii) Not more than one short poem, article, story, essay or two excerpts may be copied from the same author, nor more than three from the same collective work or periodical volume during one class term. (iii) There shall not be more than nine instances of such multiple copying for one course during one class term. [The limitations stated in “ii” and “iii” above shall not apply to current news periodicals and newspapers and current news sections of other periodicals.] III. Prohibitions as to I and II Above Notwithstanding any of the above, the following shall be prohibited: A. Copying shall not be used to create or to replace or substitute for anthologies, compilations or collective works. Such replacement or substitution may occur whether copies of various works or excerpts therefrom are accumulated or reproduced and used separately. B. There shall be no copying of or from works intended to be “consumable” in the course of study or of teaching. These include workbooks, exercises, standardized tests and test booklets and answer sheets and like consumable material. 110 EXHIBIT 5 - 8 C. Copying shall not: a) b) be directed by higher authority; c) D. substitute for the purchase of books, publishers’ reprints or periodicals; be repeated with respect to the same item by the same teacher from term to term. No charge shall be made to the student beyond the actual cost of the photocopying. Agreed March 19, 1976. Ad Hoc Committee on Copyright Law Revision: By Sheldon Elliott Steinbach. Author-Publisher Group: Authors League of America: By Irwin Karp, Counsel. Association of American Publishers, Inc: By Alexander C. Hoffman, Chairman, Copyright Committee. Appendix II: Permissions A. How to Obtain Permission When a proposed use of photocopied material requires a faculty member to request permission, communication of complete and accurate information to the copyright owner will facilitate the request. The Association of American Publishers suggests that the following information be included to expedite the process. 1. Title, author and/or editor, and edition of materials to be duplicated. 2. Exact material to be used, giving amount, page numbers, chapters and, if possible, a photocopy of the material. 3. Number of copies to be made. 4. Use to be made of duplicated materials. 5. Form of distribution (classroom, newsletter, etc. ). 6. Whether or not the material is to be sold. 7. Type of reprint (ditto, photocopy, offset, typeset). 111 EXHIBIT 5 - 9 The request should be sent12, together with a self-addressed return envelope, to the permissions department of the publisher in question. If the address of the publisher does not appear at the front of the material, it may be obtained from The Literary Marketplace (for books) or Ulrich’s International Periodicals (for journals), both published by the R. R. Bowkey Company. For purposes of proof, and to define the scope of the permission, it is important that the permission be in writing. The process of considering permission requests requires time for the publisher to check the status and ownership of rights and related matters and to evaluate the request. It is advisable, therefore, to allow sufficient lead time. In some instances the publisher may assess a fee for permission, which may be passed on to students who receive copies of the photocopied material. B. Gathering Data on Responses to Requests for Permission to Photocopy In order to help assess the effect of this Policy Statement upon the faculty it will be useful for the administration to compile data on responses by copyright owners. Each member of the faculty is therefore requested to forward a dated copy of each request for permission and a dated copy of each response to the Office of Legal Counsel. 12 The following is a sample letter to a copyright owner (usually a publisher) requesting permission to copy: Material Permissions Department Hypothetical Book Company 500 East Avenue Chicago, IL 60601 Dear Sir/Madam: I would like permission to copy the following for use in my class next semester: Title: Knowledge is Good, Second Edition Copyright: Hypothetical Book Co., 1965, 1971 Author: Frances Jones Material to be duplicated: Chapter 10 (photocopy enclosed) Number of copies: 50 Distribution: The material will be distributed to students in my class and they will pay only the cost of the photocopying. Type of reprint: Photocopy Use: the chapter will be used as supplementary teaching materials. I have enclosed a self-addressed envelope for your convenience in replying to this request. Sincerely, Faculty Member 112 EXHIBIT 5 - 10

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