POLICY & PROCEDURES MANUAL Classification Number: 1.5.1
WAYLAND BAPTIST UNIVERSITY
Revised: December 1, 2014
SUBJECT: REPRODUCTION OF COPYRIGHTED MATERIALS
The purpose of this policy is to facilitate compliance with the U.S. Copyright Law and to inform the
campus community as to the fair use provisions of this law as it applies to teaching, research, and library
use.
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. This university does not condone a
policy of reproducing instead of purchasing copyrighted works where such reproducing would constitute
an infringement of the Copyright Law. The university does, however, encourage faculty, staff and
employees to exercise good judgment in serving the best interests of students in an efficient 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 from copyright infringements. Faculty or staff members who willfully
disregard the university’s Copyright Policy place themselves individually at risk of legal action and
personal liability.
Introduction
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;
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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.
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:
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works where the creator has expressly disclaimed a copyright interest;
works where the copyright has expired. (For information about public domain status, see
http://www.librarycopyright.net/resources/digitalslider/
or “Copyright Term and the Public Domain in the United States” at
http://copyright.cornell.edu/resources/publicdomain.cfm
works created by the federal government, for example, data files from the U.S. Census.
Fair Use
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. However, what constitutes fair use is expressed in the form of guidelines
rather than explicit rules. 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 copied material will be for
nonprofit, educational, or commercial use. Nonprofit, educational use (such as university classroom use)
tips the balance in favor of a finding of fair use. Commercial usage weighs against a finding of fair use.
Criticism, commentary, news reporting and teaching are considered "core" fair uses, and thus weigh in
favor of a finding of fair use. Copying excerpts into an electronic reserve system (e.g. Blackboard or
Kaltura Media Hosting) for use by students in a particular class is an example of a use which would be
favored as a fair use.
A transformative use of a work is likely to qualify as fair use. Those uses most likely to qualify as
transformative are those that change the use or purpose of the material borrowed by placing it in a new
context, using it with a different audience from the one it was originally created for, or criticizing it,
commenting upon it, or otherwise taking issue with it. For example, a parody of a copyrighted work is
considered a "transformative" work, and so is the creation of digital copies to facilitate access for printdisabled persons.
Second Factor. The nature of the copyrighted work, with special consideration given to the distinction
between a creative work and an informational work. Creative works, like fiction and poetry, are granted
greater copyright protection under the fair use test.
For example, copies of a newspaper or newsmagazine column are more likely to be considered a fair use
than copies made of a musical score, or a short story. Imaginative and unpublished works are granted
greater protection than factual and published works.
Third Factor. The amount of the work which is going to be used in comparison to the work as a whole.
The “amount 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?). While there is no exact
percentage limit in the law, a recent and influential court case on electronic reserves in an educational
setting suggests 10% as an appropriate percent when dealing with nonprofit educational uses of nonfiction
works.
Following the court's formula, a 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 be a 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. An example might be copying a portion of an out of print “orphan”
work. (An “orphan” work is one which has no identifiable owner from whom to seek permission and
there is no market to consider).
This numerical limit does not apply to transformative uses.
Fourth Factor. The effect of the use on the potential market of the copyrighted work. The user must
determine whether or not a readily available and reasonably priced license exists for the type of use
envisioned. Also, will the use diminish the market for the copyrighted work? For non-profit educational
uses of nonfiction works where the use is more than the 10% limit set forth above, procuring the license is
strongly indicated. 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,
the user may not always have this type of data and thus the availability of a license will continue to be a
strong factor against a finding of fair use. 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.
Distance Education
In accordance with the “Technology, Education, and Copyright Harmonization Act” (TEACH), the
university may digitize and transmit copyrighted works without prior permission under the following
conditions:
A. Content – Performances of non-dramatic literary or musical works, or reasonable and limited portions
of any other work, or display of a work in an amount comparable to that which is typically displayed in
the course of a live classroom session. Excluded are instructional materials designed or marketed for
distance education over digital networks as well as unlawful copies of any work.
B. Purpose - The performance or display is made by, at the direction of, or under the actual supervision
of an instructor as an integral part of a class session offered as a regular part of systematic mediated
instructional activities, the performance or display is directly related to the teaching content of the
transmission, and the transmission is made solely for, and, to the extent technologically feasible, the
reception of such transmission is limited to, students officially enrolled in the course for which the
transmission is made.
C. Method – The university must apply technological measures that reasonably prevent retention of the
work in accessible form by recipients of the transmission for longer than the class session, and
unauthorized further dissemination of the work in accessible form by such recipients to others.
Furthermore, the university must not engage in conduct that could reasonably be expected to interfere
with technological measures used by copyright owners to prevent such retention or unauthorized further
dissemination.
D. Compliance – The university must institute policies regarding copyright, provide informational
materials to faculty, students, and relevant staff members that accurately describe, and promote
compliance with, the laws of the United States relating to copyright, and provide notice to students that
materials used in connection with the course may be subject to copyright protection.
REPRODUCTION BY THE LIBRARY
Library Reserve Uses
At the request of a faculty 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.
READINGS FOR COPYRIGHT GUIDANCE, INTERPRETATION AND INFORMATION
Documents available to provide guidance, interpretation and additional information to assist in
determining rights and limitations in making and using copies of copyrighted material include the
following:
Copyright Law of the United States. Copyright Office. http://www.copyright.gov/title17
Copyright and Fair Use. Stanford University Libraries. http://fairuse.stanford.edu
Fair Use Guide for Educational Multimedia. University of Texas System.
http://copyright.lib.utexas.edu/ccmcguid.html
The United States Copyright Law; a guide for music educators . Issued jointly by Music Educators
National Conferences, Music Publishers Association of the United States, Music Teachers National
Association, National Music Publishers Association, and National Association of Schools of Music.
http://www.nafme.org/my-classroom/united-states-copyright-law-a-guide-for-music-educators/
Contact for Interpretation: Executive Vice President/Provost
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This policy statement supersedes all previous policy statements on this subject.
Revisions:
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