WU Guidelines for Use of Copyrighted Materials

The copyright law (Title 17, United States Code) took effect January 1, 1978. It is the policy of Willamette University that the provisions of this law will be upheld.

The basic intent of the copyright law is to balance the copyright owner's right to compensation for the work with the interest of society in the free flow of ideas included in the work. The necessary balance to these often conflicting purposes requires the utilization of a "common sense" approach to each individual case, particularly in reference to "fair use" concepts provided in the law. The accompanying policy statement cannot, and is not intended to, cover all instances and those who copy materials in any form, whether by photocopy, audio/visual, computer or other means should exercise caution and obtain clearance whenever possible.

The Nature of Copyright

Copyright begins at the moment the work is created and lasts until 70 years after the death of the creator. Copyright exists in "original works of authorship" which are "fixed in a tangible medium of expression". Included are literary, dramatic, musical, choreographic and pictorial works, graphic works, pantomimes, sound recordings, sculptures, motion pictures and audiovisual works; these categories include fact works such as dictionaries and directories, videocassettes, computer programs and databases. Registration with the Copyright Office is not required for a work to be protected by U.S. Copyright Law, nor is it necessary for the "©" to appear on the work since March 1, 1989.

Rights of the Copyright Owner

There are five rights which belong exclusively to the copyright owner:

1. The right to reproduce the work.
2. The right to prepare derivative works.
3. The right to public distribution of the work.
4. The right to publicly perform the work, whether literary, musical, dramatic, choreographic, motion picture or other audiovisual work. "Publicly" means outside a family or small social group gathering. The copyright owner's rights include nonclassroom performances in schools.
5. The right to publicly display the work, such as photographs, motion picture "stills", audiovisual computer screen displays, etc.

How to Avoid Copyright Infringement

In general, it is an infringement of copyright for any person other than the copyright owner to exercise any of the rights listed above unless the owner has authorized the activity or the use made of the materials constitutes "fair use". Therefore, whenever copyrighted materials are to be reproduced for use in the teaching process (whether in the form of copy from broadcast transmission, classroom projection of copied material or reference material copied for use by students) it must be determined that the permission of the copyright owner has been obtained or that the planned use of the material fits the "fair use" concept.

Obtaining Clearance for Use of Copyrighted Materials

Persons wishing to duplicate any work covered by copyright should attempt to obtain permission from the copyright owner. It is the responsibility of the individual administrator, faculty member, staff member or student to seek and obtain clearance. Reference materials on the specifics of how to obtain clearance may be obtained through Willamette Integrated Technology Services.

Fair Use (Section 107, Public Law 94-553, January 2, 1978)

Fair use (a doctrine developed by the courts) is a concept firmly established in everyday use. While not susceptible to exact definition, fair use, generally speaking, allows copying without permission from, or payment to, the copyright owner where use is reasonable and not harmful to the rights of the copyright owner. Such reasonable use is usually for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research. Four criteria are used in determining whether or not a use is fair. These are only general standards, however, and each situation must be decided on the basis of its own facts. The four criteria of fair use are:

1. The purpose and character of the use, including whether such use is of commercial nature or for nonprofit educational purposes;
2. The nature of the copyrighted work;
3. The amount and substantiality of the portion of the work used in relation to the copyrighted work as a whole; and
4. The effect of the use in question upon the potential market for or value of the copyrighted work.

No one factor is determinative of a person's right to use a copyrighted work without permission. Educational use alone is not sufficient to make a use in question a fair one.

These criteria are not necessarily the sole criteria that a court may consider. Section 107 makes it clear that the factors a court shall consider shall "include" these four. Section 101, the definitional section of the new law states that the terms "including" and "such as" are illustrative and not limitative.

The legislative reports state that Section 107 as drafted is intended to restate the present judicial doctrine; it is not intended to change, narrow or enlarge it in any way.

One thing is clear--the language of Section 107 does not provide specific tests by which one can determine with much certainty whether or not a particular use is fair. The difficulty of arriving at a clear-cut definition is inherent in the nature of the doctrine. As Congress itself recognized, the principle of fair use is so broad that the law cannot define specific practices which it would permit:

"Although the courts have considered and ruled upon the doctrine of fair use over and over again, no real definition of this concept has ever emerged. Indeed, since the doctrine is an equitable rule of reason, no generally applicable definition is possible, and each case raising the question must be decided on its own facts." (House Report 94-1476, p. 65)

Guidelines

In addition to the above fair use standards, Congress has endorsed certain guidelines relating to classroom copying for educational use. These guidelines are generally considered to establish minimum permissible conduct under the Fair Use doctrine for unauthorized copying. Although some limited copying which does not fall within these guidelines may still qualify as permissible conduct under the copyright law, copying which does comply with these guidelines can generally be assured of constituting permissible conduct under the current copyright law.

The guidelines for making multiple copies without permission include the following prohibitions:

1. Unauthorized copying may not be used to create, replace or substitute for anthologies, compilations or collective works, whether or not such unauthorized copies are collected and bound together or are provided separately.
2. Unauthorized copies may not be made of "consumable" works, including workbooks, exercises, standardized tests, test booklets and answer sheets, and the like.
3. Unauthorized copying may not substitute for the purchase of books, publisher's reprints or periodicals.
4. Unauthorized copying may not be directed by higher authority, such as a dean or chairman of the department.
5. The same individual may not copy the same item without permission from term to term.
6. No charge shall be made to the student beyond the actual cost of the photocopying.

These additional guidelines indicate the instances in which multiple copying is allowed:

1. Multiple copies (not to exceed one per student per course) may be made by or for the instructor of the course for classroom use and discussion provided they meet the following tests of spontaneity and brevity:
   1. Spontaneity - an individual is "inspired" to use a work and the inspiration, decision to use it and moment for its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply for a permission request.
   2. Brevity-
      1. Poetry - a complete poem if less than 250 words and printed on not more than two pages; or an excerpt from a longer poem of not more than 250 words.
      2. Prose- a complete article, story or essay of less than 2,500 words; or an excerpt of not more than 1,000 words or 10% of the work, whichever is less, but a minimum of 500 words.
      3. Illustration-one chart, graph, diagram, drawing, cartoon or picture per book or periodical issue.
2. The copying is for only one course in the school in which the copies are made.
3. 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. No more than nine instances of such multiple copying may occur for one course during one class term.
4. The original copyright notice must appear on all copies of the work.

Responsibility for Decisions

It is not feasible to designate one individual to determine when explicit permission of copyright owners should be sought for particular instructional uses of copyrighted materials. Therefore, every administrator, faculty and staff member who may be involved in the reproduction of copyrighted materials for classroom or administrative use (or for the use of individual instructors in preparing themselves to teach certain subjects) has an important responsibility to assure that the rights of copyright owners are recognized and honored.

Display of Copyright Notice

The following notice should be placed on or near self-service copying equipment.

NOTICE

WARNING CONCERNING COPYRIGHT RESTRICTION

"The copyright law of the United States (Title 17, United States Code) governs the making of photocopies or other reproductions of copyrighted material."

"Under certain conditions specified in the law, libraries and archives are authorized to furnish a photocopy or other reproduction. One of these specified conditions is that the photocopy or reproduction is not to be "used for any purpose other than private study, scholarship, or research." If a user makes a request for, or later uses, a photocopy or reproduction for purposes in excess of "fair use," that user may be liable for copyright infringement."

"This institution reserves the right to refuse to accept a copying order if, in its judgment, fulfillment of the order would involve violation of copyright law."

Certification

Persons requesting services involving copyrighted material will be asked to certify, in writing, either that the copyright owner's permission has been obtained or that, for specific reasons, the proposed use is judged to be covered by the fair use doctrine. The purposes of this requirement are to assure that the relevant issues have been considered in each case and to establish evidence of the University's good-faith effort to comply with the law.

The form developed for this certification is available online: Certification of Compliance with Copyright Law. To expedite the reproduction of copyrighted material, the form should be filled out and signed before material to be reproduced is taken to the production unit in question; please reproduce the attached copy as necessary for that purpose. In cases where materials from a variety of sources are to be reproduced as parts of a single project, a list of the works and their sources may be attached to a single signed certification form. (When the copyright owner's permission for the proposed use of material has been obtained in writing, a copy of that permission may be substituted for the certification form, if convenient). Each office is responsible for keeping a file of its completed request forms.

As indicated in the foregoing information, the law does not provide sufficiently explicit guidance to permit certain prior determination whether or not a particular use of copyrighted material is "fair." Only the ruling of a court can resolve such a question. For this reason, it is not possible for any University employee to "approve" specific uses of copyrighted material. Advice will be provided on request and, in particularly complex cases, WITS can seek further advice from the University's legal staff; but neither source of assistance has the ability, much less the authority, to relieve administrators, faculty or staff members of their basic responsibility to keep reproduction of copyrighted materials within the limits of the law.