What follows is the Wheeling University Policy regarding the use of copyrighted materials. It was developed in compliance with the United States Copyright Law of 1976, as amended, Title 17, United States Code, hereinafter, the “Copyright Act”.
It is the University’s intention to ensure that all Wheeling University faculty, staff, and students understand and operate within the boundaries of fair use in copying everything except uncopyrightable material. Uncopyrighted materials may be copied freely and without restriction.
It is important to remember that a copyright notice is not required for copyright protection on most works (except those authored by the United States Government). Most works should be presumed to be copyright protected, unless further information from the copyright holder or express notice reveals that the copyright holder intends the work to be in the public domain.
The legal or insurance protection of the University will not be extended to an employee who violates copyright laws. In the event said employee is found guilty of violating existing copyright law by administrative law judge, judge or jury, or a combination thereof, the employee will be required to remunerate the University in the event of loss due to litigation.
All persons who authorize the making of copies in all Wheeling University facilities (including those at the Central Office, Library, NTTC, COTF, and in all other buildings) must sign a waiver stating that the requested photocopying is in compliance with the Wheeling University Copyright Policy.
The four factors that are weighed in a consideration of fair use as taken from Section 107 of Copyright Law of 1978, Fair Use for Educators follow:
- Purpose and character of use (instructional)
- Nature of work (format)
- Amount of work used (usually 10% limit)
- Effect on potential market (sales)
The amount of the work that may be considered as a fair use amount varies with the format (see below). Generally copying should not exceed 10% and should not excerpt the creative essence of the work. An important point to remember in determining whether fair use can be applied to a specific case is that all four factors above must be taken into account. The fact that the use is educational, for example, is not in itself sufficient grounds for claiming fair use.
- Single Copying for Instruction
- A single copy may be made of any of the following or any part thereof by or for any instructor at his or her individual request:
- A chapter from a book;
- An article from a periodical or newspaper;
- A short story, short essay or short poem, whether or not from a collective work; or
- A chart, graph, diagram, drawing, cartoon or picture from a book, periodical, or newspaper.
- Multiple Copies for Classroom
Use Multiple copies may be made without obtaining a release from the copyright holder for classroom use or discussion by the instructor of a Wheeling University course or instructional program under the following provisions:
- The copying meets the test of brevity and spontaneity.
A complete poem of less than 250 words or an excerpt from a longer poem not to exceed 250 words.
All or any portion of a complete article, story or essay of 2,500 words or less, or an excerpt from any prose work of not more than 1,000 words or 10%
One chart, graph, diagram, drawing, cartoon or picture per book or per periodical issue.
The copying is at the instance and inspiration of the individual teacher or program instructor, and 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.
The copying meets the following cumulative effect test:
- The copying of the material is for only one course or instructional program for one term in the school in which the copies are made.
- Not more than one item (short poem, article, story, essay) or two excerpts may be copied from the same author, not more than three excerpts from the same collective work or periodical volume during one class term.
- There should not be more than nine instances of such multiple copying for one course or instructional program during one class term. [exception: current news periodicals and newspapers and current news sections of other periodicals]
- The total number of copies must not exceed the number of students in the course or instructional program.
- Each copy includes a notice of copyright.
All photocopying is prohibited that:
Is used to create or to replace or substitute for anthologies, compilations or collective works. Includes works intended to be “consumable” in the course of study or of teaching (workbooks, exercises, standardized tests, test booklets, answer sheets and like consumable material). Substitutes for the purchase of books, publisher’s reprints or periodicals; Is directed by higher authority; or Is repeated with respect to the same item by the same teacher from term to term. Exceeds one work or two excerpts from a single author during one class term. Exceeds three works from a collective work or periodical volume during one class term. Exceeds nine sets of multiple copies for distribution to students in one class term. Charges a fee to the student beyond the actual cost of the photocopying.
Directors of any activities on the Wheeling University campus involving audio visual services shall develop procedures that will ensure university compliance with copyright law.
Section 110 of the Copyright Act that was revised in 1976 provides for educational use of copyrighted materials. Specifically the law allows for:
- Performance or display of a work by instructors or pupils in the course of face to face teaching activities of a nonprofit educational institution, in a classroom or a similar place devoted to instruction, unless, in a case of a motion picture or other audiovisual work, the performance, or the display of individual images is given by means of a copy that was not lawfully made…and the person responsible for the performance knew or had reason to believe was not lawfully made.
- Audiovisual works may be displayed in nonprofit educational institutions under the following conditions.
- They must be shown as part of the instructional program.
- They must be shown with students, instructors, or guest lecturers.
- They must be shown either in a classroom, or other school location devoted to instruction such as a studio, workshop, library, gymnasium, or auditorium if it is used for instruction.
- They must be shown either at a face-to-face setting or where students and teacher(s) are in the same building or general area.
- They must be shown only to students and educators.
- They must be shown using legitimate (that is, not illegally reproduced) copy with the copyright notice included.
Videotapes and videodisks may not be copied by the faculty, staff or students of WU or publicly performed on the WU campus outside of a class even if they are owned by the university unless license agreement grants these rights. The copyright law requires a license agreement to be obtained before libraries, student clubs, dorms, and other campus groups may use these materials during non-classroom activities or events, regardless of whether admission is free or paid. In cases of WU faculty requests for duplication, the faculty member must locate the current copyright owner and obtain necessary licenses or releases for the copying of any audio or visual recordings made in the US after 1915.
In 1981, the House Subcommittee on the courts, Civil Liberties, and the Administration of Justice ratified the Guidelines for Off-Air recording of Broadcast programming for Educational Purposes. Broadcast programs as defined here are television programs transmitted by television stations for reception by the general public without charge. They include ABC, CBS, NBC, FOX, and PBS. Pay services such as HBO, Cinemax, Disney, Discovery, and free cable-only services such as Lifetime, USA, and MTV do not fall in this category and may not be taped without permission.
The most important of these guidelines are:
- Videotaped recordings may be kept for no more than 45 calendar days after the recording date, at which time the tapes must be erased.
- Videotaped recordings may be shown to students only within the first 10 school days of the retention period.
- The recordings are to be shown to students no more than twice during the 10 day period, and the second time only for necessary instructional reinforcement.
- All off-air recordings must include the copyright notice on the broadcast program as recorded.
These guidelines apply only to nonprofit educational institutions which are further expected to establish appropriate control procedures to maintain the integrity of these guidelines.
Perhaps the most important point to remember is that off-air recordings may not be kept and shown semester after semester but can only be kept for 45 days during which time they may be shown only twice.
Programs videotaped under fair use guidelines may be used only in authorized WU courses or instructional programs with the instructor present.
Off-air recordings need not be used in their entirety. However, these recorded programs may not be altered from their original content.
Off-air recordings may not be physically or electronically combined or merged to constitute teaching anthologies or derivative works.
Penalties for Copyright Infringement
The following is exerpted from the US Copyright Law, Title 17 of the United States Code, revised to March 1, 1991.
Section 502. Remedies for infringement: Injunctions…Any court having jurisdiction of a civil action arising under this title may grant temporary and final injunctions on such terms as it may deem reasonable to prevent or retrain infringement of a copyright.
Section 503. Remedies for infringement: Impounding and disposition of infringing…The court may order the destruction or other reasonable disposition of all copies found to have been made or used in violation of the copyright owner’s exclusive rights, and all of the plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies may be reproduced.
Section 504. Remedies for infringement: Damages and Profits Actual damages and Profits…The copyright owner is entitled to recover the actual damages by him or her as a result of the infringement, and any profits of the infringe that are attributable to the infringement and are not taken into account in computing the actual damages.
Statutory Damages…The copyright owner may elect to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work in a sum of not less than $500 or more than $20,000 as the court considers just.
In a case where the copyright owner sustains the burden of proving, and the court finds that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to the sum of not more than $100,000. The court shall remit statutory damages in any case where the infringer believed and had reasonable grounds for believing that his or her use of the copyright work was a fair use, if the infringer was an employee or agent of a nonprofit educational institution, library, or archives within the scope of his or her employment.
Section 505. Remedies for infringement: Costs and attorney’s fees… The court may allow the recovery of full costs by or against any party. The court may also award a reasonable attorney’s fee to the prevailing party as part of the costs.
For Criminal infringement…As much as five years in prison and/or a $250,000 fine.
GUIDELINES FOR UNIVERSITY LIBRARY AND ARCHIVES
Section 108 of the copyright law provides the conditions under which libraries may reproduce copyrighted works to satisfy the needs of patrons. It specifically addresses instances of allowable photocopying, reserve room use, and interlibrary loan.
Under the copyright guidelines, Wheeling University personnel may:
A. SINGLE COPYING Make one copy, for scholarly research or preparation for class, of a chapter in a book, an article, a short story or poem, a chart or diagram, a picture or cartoon.
B. MULTIPLE COPIES FOR CLASSROOM USE
Brief poetry: a complete poem of less than 250 words or an excerpt from a longer poem not to exceed 250 words prose: an essay or story with a minimum of 500 words but less than 2,500 words, or an excerpt of not more than 1,000 words or 10% of the work (whichever is less). illustrations: one chart, graph, diagram, or drawing per book or journal.
- The total number of copies must not exceed the number of students in the course.
- The decision to copy must be spontaneous (i.e., close to the actual teaching time), and for one course only.
- No more than one item may be copied from one author.
- No more than three items may be copied from the same collection or periodical volume during one semester.
- No more than nine items may be copied for one course during one class term.
C. PROHIBITIONS FOR (A) AND (B) ABOVE:
Copying may not be used to create anthologies or classroom texts.
Consumable works (exercises, tests, answer sheets) may not be copied under any circumstances.
No book or periodical or monograph may be copied in its entirety.
No copying may be repeated for the same item in a subsequent school term.
[US copyright law obligates a person to seek the permission of copyright holders before making or using multiple photocopies of copyrighted works published within the last 75 years.]
D. INTERLIBRARY LOAN/DOCUMENT DELIVERY
The National Commission on the New Use of copyrighted Works (CONTU), appointed by Congress, has developed the following guidelines to cover interlibrary loan copying affected by Section 108g2 of the Federal Copyright Act of 1976, which covers isolated and unrelated reproduction of a single copy.
Within any calendar year, a library may not copy more than five articles from any one periodical title released within the past five years.
This rule specifies five copies, whether all five copies are made of one article, or one copy of five different articles, or a combination. Copying from issues of that periodical title that were published more than five years ago are not covered by this restriction.
For books, the guidelines restrict reproduction to small portions such as a chapter, of which no more than five copies may be made within a calendar year. This limitation applies to all copyrighted works for the duration of time they remain copyrighted; i.e. the life of the author plus 50 years.
The CONTU guidelines specify that the borrowing libraries maintain records of all copying done under the guidelines for three calendar years. The records must be kept by title.
When the limit of five copies per calendar year is reached, the ILL department will apply to the Copyright Clearance Center for permissions and/or pay the royalties to the CCC for any copies made beyond the CONTU guidelines. If this is a Once-in-a-blue-moon situation, the ILL department may go ahead and make that sixth copy without going through the CCC, but this should happen in only very narrow, rush circumstances.
Every article copied under the CONTU guidelines must contain a notice of copyright permission.
E. LIBRARY RESERVE SERVICES
Reserve Copyright Restrictions
- Photocopies – The Library, when requested by a faculty member, will place on Reserve a single copy of a chapter, an article, a short story, a graph, chart, picture, cartoon, poem, or short essay, provided such copying conforms to the fair use provisions of the Federal Copyright Act of 1976.
Please note that the first time you place such material on Reserve it will not be necessary to obtain copyright permission. Such permission will be necessary, however, if you wish to place the same material on Reserve in future semesters.
- Number of Copies – Our guidelines allow one photocopy for every 15 students in a class to be placed on Reserve. In addition, the faculty member may supply up to four additional photocopies of the materials, provided the copyright provisions are met.
Multiple copies are and remain the property of the faculty member, who is responsible for complying with the Copyright Act. In accepting copies for Reserve purposes, the Library will assume that the copy or copies have been made in accordance with the fair use provisions of the act.
Materials That Cannot be Placed on Reserve
Because of copyright restriction, the Library cannot make a copy of a copyrighted workbook, test or test booklet, answer sheet, or course pack, nor can it place on Reserve a photocopy of these materials.
Items on Reserve for Multiple Semesters
Photocopies that need to be on Reserve for more than one semester will require copyright permission from the copyright holders, since this is no longer considered spontaneous use of materials under the Copyright Act. Library staff will obtain copyright permission from those publishers who belong to the Copyright Clearance Center and will assist faculty in applying for other permissions, to the extent of providing sample permission letters and publishers’ addresses. At the end of each semester the Library sends out a Reserve form letter asking faculty if they want to renew, revise, or remove their items currently on Reserve. This letter also includes usage statistics for each title.
Videorecorded Copyrighted Works
At the request of a faculty member, Library staff may place on Reserve videorecordings of copyrighted works for use by individual students as part of class assignments, to be used either in the Library or to be checked out and viewed at home. Any videotape accepted for Reserve must be a commercially produced copy, conform to the established off-air taping guidelines, or be a production of the faculty member. Items that do not meet one of these conditions will be returned to the faculty member.
F. ARCHIVAL AND OUT-OF-PRINT PRODUCTION
The Library may reproduce and/or distribute a copy of an entire work under certain circumstances, if it has been established that a copy cannot be obtained at a fair price. Such a determination will require inquiries to commonly-known trade sources in the United States, and ordinarily also to the publisher or other copyright holder.
The copy must become the property of the user, and the library or archives must have no notice that the copy will be used for any purpose other than private study, scholarship, or research. (Sec.108)
Replacement of Damaged Copy
The Library may reproduce a published work solely for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost or stolen, if it has determined that an unused replacement cannot be obtained at a fair price. (Sec.108)
Responsibility for obtaining and demonstrating copyright holder permission resides with the person or department requesting the material.