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Policy 1.5.1

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SUBJECT: COPYRIGHT INFRINGEMENT/UNAUTHORIZED DISTRIBUTION OF COPYRIGHTED MATERIALS

This policy establishes guidelines for Wayland's faculty, staff, and students which affirm the University community's compliance with section 106 of the Copyright Act (Title 17 of the United States Code) as it relates to the reproduction of copyrighted materials.

The copyright law of the United States provides legal protection for authors of original works, including literary, dramatic, musical, artistic, and other intellectual products. An author's copyright in a work arises at the moment the work is created. Publication is not essential for copyright protection. The copyright symbol (©) is also not required for copyright protection to occur. Copyright law grants a copyright owner the exclusive right to do, and to authorize others to do, the following;

• Transfer copyright ownership to another party.
• Reproduce copies of the work.
• Prepare derivative works based on the copyrighted work.
• Distribute copies of the work by sale, rental, lease, or lending or by electronic means.
• Publicly perform literary, musical, dramatic or choreographic works, pantomimes, and motion pictures and other audiovisual works.
• Publicly display literary, musical, dramatic or choreographic works, pantomimes and pictorial, graphic or sculptural works, including individual motion picture or audiovisual images.
• Publicly perform copyrighted sound recordings by means of a digital audio transmission.

It is the policy of Wayland Baptist University that all faculty, staff and employees respect the rights conferred by the copyright laws and through licensing agreements. While the University does not condone reproducing instead of purchasing copyrighted works, it is understood that through instruction, work, and research, some faculty, staff, and students may need to reproduce copyrighted information in a reasonable and lawful manner.

U.S. Copyright Law specifically exempts from statutory damages any employee of a nonprofit educational institution who believed and had reasonable grounds for believing that his/her use of the copyrighted work was covered by the "fair use" provision. Therefore, compliance with these guidelines should result in protecting faculty, staff, and students from copyright infringements. Faculty, staff, or students who willfully disregard the university's Copyright Policy place themselves individually at risk of legal action and personal liability.

Fair Use Doctrine
Under the Copyright Act, there are certain instances wheere it is allowable to reproduce or display copyrighted works without the stated permission of the copyright owner; these instances are considered to be governed by the "Fair Use" doctrine. The doctrine of "fair use," as recognized in the copyright law, addresses the needs of scholars and students by allowing use of copyrighted material without obtaining permission from the copyright owner in certain limited circumstances. To determine fair use, one must consider all of the following four factors, and no one factor can trump all the others.

First Factor. The purpose and character of the use, including whether the use is of a commercial nature or is for non-profit educational purposes: Nonprofit or non-commercial use tips the balance in favor of a finding of fair use. Non-profit educational purposes, such as duplicating for classroom use, generally tends to support fair use.

Second Factor. The nature of the copyrighted work: Works generally fall into categories such as published or unpublished, fact or fiction. Published, factual works are often more likely to support a finding of fair use than unpublished, fiction, or creative works.

Third Factor. The amount and substantiality of the portion used in compatison to the copyrighted work as a whole: The portion used may be considered both objectively (number of pages, minutes of a movie) or subjectively (is the most significant part, or the "heart of the work" being used?). Users are encouraged to post a link to article or other materials rather than reproducing complete works.

As a significant court case suggested, use is likely to be found fair if it is no more than 10% of a book undivided into chapters (or a book with nine or fewer chapters). If a book has ten or more chapters, one chapter of a nonfiction work would generally be considered fair use. This is the case regardless of whether or not digital copies are available for licensing when nonfiction is being used in a not-for-profit educational setting. All pages of a book including front material and index are counted as part of the book for the application of the percentage test.

The 10% test is not precise; using a little more than 10% does not rule out fair use if all other factors considered weigh in favor of fair use, such as in the case of reproducing a portion of an out of print "orphan" work - a work which has no identifiable owner from whom to seek permission and in which there is no market to consider.

Fourth Factor. The effect of the use on the potential market for or value of the copyrighted work. Viewed as the most important fact to consider, the user must determine 1.) whether or not a readily available and reasonably priced license exists for the type of use envisioned, and 2.) if the use will diminish the market for the copyrighted work. When there is little or no demonstrated demand for a book or for excerpts from it, there will not be a realistic expectation of lost potential revenue from failure to license excerpts. However, use of content created and marketed primarily for use in courses (such as a textbook or workbook) is unlikely to be a fair use.

Summary of Fair Use
Whether or not a particular use is fair under the law is a determination to be made by the person proposing the use. When relying upon fair use for e-reserves, only students in the class should have access to the materials, and access to the materials should be limited in time to the duration of the course. The instructor should be able to articulate a clear nexus between the educational purpose and the kind and amount of content used. Full attribution to the author should be included, and students should receive a notice about copyright and their responsibilities and rights with respect to course content.

In analyzing the first two factors, nonprofit educational uses of nonfiction works will favor a fair use finding almost every time. When analyzing use of nonfiction works for course reserves, if the 10% limit is followed, the first three factors will weigh in favor of fair use, and even the availability of a license will not change the analysis. There is no longer a limit on repeated usage over multiple semesters. The Classroom Guidelines from 1976 are considered outdated.

Transformative uses are often amenable to a wider scope of fair use, even if the amount used is the entirety of the work, such as a poem. A short hand version of the four factor test here is to ask 1) Is the use transformative? 2) If yes, is the amount taken appropriate to achieve the transformative purpose?

Employees should review additional information about Copyright Permission Request (Attachment A), including a sample letter for this purpose.

Public Domain
Works that are considered in the "public domain" may be copied or otherwise used freely. The following categories of publications are generally considered to be in the public domain; that is, their use is not protected by copyright law:

• works where the creator has expressly disclaimed a copyright interest;
• works where the copyright has expired. (For information about public domain status, see or "Copyright Term and the Public Domain in the United States" at
• works created by the federal government, for example, data files from the U.S. Census.

File sharing and Peer-to-Peer Software Programs

Wayland Baptist University prohibit the installation and use of peer-to-peer (P2P) file-sharing programs on computers using the University network if those programs violate copyright or copyrighted material (e.g., downloading of copyrighted movies). Also prohibited is the installation of operation of any program that assists others in violating copyright. Users 0 be they faculty, staff, or students - will be considered in violation of this policy if the Director of Information Technology (IT) or his/her designee identifies internet traffic as prohibited P2P file-sharing activities. Depending on the type of student violation - be it student life or academic - the Director of IT will work with the Executive Director of Student Services or the Vice President of Academic Affairs to determine appropriate corrective action, such as suspending or terminating network access to a student user. If any user is impacting the operations of the network, that user's access to the network will be suspended. Repeat or severe violations by any user may also be subject to additional corrective action and may be reported to authorities for criminal or civial prosecution. (See Policy 8.1.6/Student Discipline Policy for additional information on student sanctions.)

Distance Education/TEACH Act

In accordance with the "Technology, Education, and Copyright Harmonization Act" (Seciont 110(2) of the U.S. Copyright law), instructors may use the following copyrighted materials when teaching a class online or through digital transmission:

1. performance of nondramatic literary works,
2. performance of nondramatic musical works,
3. performance of any other work, including dramatic and audiovisual works, but only reasonable and limited portions, and
4. display of any work "in an amount comparable to that which is typically displayed in the course of a live classroom session."

Instructors must meet the following obligations or requirements under the TEACH Act:

1. the performance or display must be at or under the direction or supervision of and instructors as integral parts of class sessions offered as a regular part of the instructional activities of the institution
2. performances or display must be directly related and of material assistance to the teaching content of the transmissions
3. the transmission must be limited to students officially enrolled in the course(s) in question
4. the transmitting institution must institute policies regarding copyright and provide informational materials which accurately describe and promote compliance with U.S. copyright law to faculty, students, and staff
5. all transmitted materials must be lawfully aquired and include copyright notices
6. the instructor should make reasonable efforts to prevent copying and retention of the work.

REPRODUCTION BY THE LIBRARY

Library Reserve Uses

At the request of a faculty or staff member, the library may place on reserve reproductions of copyrighted works in accordance with guidelines similar to those governing fair use for face-to-face teaching discussed above. In effect, the library reserve area functions as an extension of the classroom.

Archival and Preservation Uses
A. Archival - The library may make up to three copies of an unpublished work currently in its collection for archival purposes.

B. Preservation - The library may make up to three copies of a published work for the purposes of replacing a damaged, deteriorating, lost or stolen copy, or one whose format is obsolete, provided that the library has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price.

In either case the copy must include either the notice of copyright that appears on the work reproduced, or a notice that the work may be protected by copyright if no copyright appears on the original.

Furthermore, any copy that is reproduced in digital format must not be distributed in that format or made available to the public in that format outside the premises of the library.

Interlibrary Loan Uses
The library may make a copy of no more than one article or other contribution to a copyrighted collection or periodical issue, or a copy of a small part of any other copyrighted work, in fulfillment of an interlibrary loan request. However, in the case of out-of-print works, the library may make a copy of the entire work or a substantial part of it in fulfillment of an interlibrary loan request, if the library determines that a copy of the work cannot be obtained at a fair price. This right does not apply to a musical work, a pictorial, graphic or sculptural work, or a motion picture or other audiovisual work other than an audiovisual work dealing with news, except with respect to pictorial or graphic works published as illustrations, diagrams, or similar adjuncts to works of which copies are reproduced or distributed according to the above criteria. The rights of reproduction and distribution extend to the isolated and unrelated reproduction or distribution of a single copy of the same material on separate occasions, not to the systematic aggregate quantities whose purpose or effect is to substitute for a subscription to or purchase of the work.

Contact for Interpretation: Vice President of Academic Affairs

This policy statement supersedes all previous policy statements on this subject.

Revisions:

-   02/13/2019 - Revision-policy title change Reproduction of Copyrighted Materials to Copyright Infringement/Unauthorized Distribution of Copyrighted Materials and addition of student aspect of policy

-   08/14/2017 - Title changes         

 -   12/01/2014 - Revision-rewrite of majority of policy

-   12/04/2008 - Revised and edited

-   04/11/2007 - Position change and edited

-   08/15/2004 - Reissued as Policy 1.5.1

-   08/19/1997 - Edited and layout changes

-   07/07/1992 - Inception as policy 1.2.25

 

Printable Policy 1.5.1

Printable Copyright Permission Request (Attachment A)

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