Wheaton College Copyright Guide
Lisa Richmond
latest revision: February 21, 2005
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Table of Contents

A. Introduction

B. Meaning of copyright

C. Purpose of copyright

D. Copyright exemptions

E. Computer software

F. Course packs sold in bookstore

G. Library reserves

H. Works “made for hire”

I. How to seek permissions

J. If you violate copyright

K. Handling your own copyright

L. When works pass into the public domain

M. Checklist for Fair Use

N. Suggested notices and warnings

P. Sample permission request letter

Q. Sample scenarios with suggested answers

• For professors
• For staff
• For students

A. Introduction

The purpose of this guide is to provide basic information about U.S. copyright law to professors, staff, and students at Wheaton College. Unless a footnote states otherwise, all quotations are taken from the U.S. Copyright Act, Title 17, U.S. Code, as amended. The full text of the Act is available at http://lcweb.loc.gov/copyright/title17/.

It is important to know the law and apply it in good faith, not only in order to keep ourselves from wrongdoing, but also so that we may confidently exercise the rights we have as users of copyrighted works. The exercise of these rights is important for the flourishing of our academic and campus life. And for those of us who are also authors and creators, knowledge of the law will help us to manage our copyrights well, and encourage others to seek permission to use our works when it is necessary for them to do so.

This guide provides a lay understanding and a summary of complex legal matters. For help in specific circumstances, please consult one of the people named below, who will seek legal advice as necessary:

General questions, Fair Use, library reserves, classroom and distance learning, non-curricular events:
Gregory Morrison, Buswell Library (x5847 or Reference@wheaton.edu)

Course packs:
Wyatt Waterman, Bookstore (x5325 or Wyatt.W.Waterman@wheaton.edu)

Campus computer network:
Lowell Ballard, Computing Services, (x5222 or Lowell.Ballard@wheaton.edu)

Public performances of videos or films:
Magda Bonny, Buswell Library (x5620 or Magda.Bonny@wheaton.edu)

Digital Millennium Copyright agent for Wheaton College:
Terry Huttenlock, Buswell Library (x5352 or Terry.Huttenlock@wheaton.edu)

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B. Meaning of copyright

Copyright is a limited, statutory monopoly granted to creators of “original works of authorship fixed in any tangible medium of expression.”

A work is considered original if it “embodies some minimum amount of creativity”¹. For example, a translation of The Lonely Planet Guide to Tasmania and a particular arrangement of data may both be considered original works.

“Fixed” means that the work exists in a form that has “more than transitory duration.” A cake decorated with a happy birthday message is unlikely to be fixed, but a Web site almost certainly is.

And finally, a “tangible medium of expression” refers to what can be seen, heard, or felt, either directly or with the assistance of a machine.

Copyright law is about more than just copying. It establishes the rights that creators have in relation to their works, as well as the rights others may have to reproduce, distribute, modify, display, or perform them.

The works in question include:

• literary works (this covers works composed of words and/or numbers, such as books, articles, Web sites, and software programs)

• musical works, including any accompanying words

• dramatic works, including any accompanying music

• pantomimes and choreographic works

• pictorial, graphic and sculptural works

• motion pictures and other audio-visual works

• sound recordings

• architectural works

Whether published or unpublished, such works are protected by copyright automatically at the time of their creation. It is not necessary for the creator to affix a copyright notice to the work or to register it with the U.S. Copyright Office in order to have copyright of it.

Copyright does not cover any “idea, procedure, process, system, method of operation, concept, principle, or discovery.”

Global reach of the law
Because of international treaties the U.S. has signed, works created or published in countries other than the United States are subject to the U.S. Copyright Law when used in the United States.

Length of copyright
Generally speaking, copyright lasts for the life of the author or creator, plus seventy years. Once this time is passed, works are said to enter the “public domain.” For more information, see section L.

Copyright not physical ownership
The copyright adhering to a work is not the same as ownership of a particular copy of that work. For example, if you own a music CD, the “right of first sale” allows you to sell it, lend or give it away, and even destroy it, but you do not have the right to copy it unless your copy can be justified by an exemption granted in the copyright law.

Copyright not plagiarism
Respecting copyright is not the same as giving proper attribution to the author or creator of a work you use. For example, it may be a violation of copyright to post on your Web site an image that you copied from elsewhere on the Web, even if your posting states clearly where the image was taken from.

Copyright not contract
Licensed works (generally, software programs and databases) are governed by contract law. Contract laws supersede the provisions of the U.S. copyright law and may give users more or fewer rights than the copyright law does.

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C. Purpose of copyright

Copyright exists to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors exclusive Right to their respective Writings and Discoveries.”

U.S. Constitution, art. 1, sec. 8

“The primary objective of copyright is not to reward the labor of authors, but to promote the Progress of Science and useful Arts. To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This result is neither unfair not unfortunate. It is the means by which copyright advances the progress of science and art.”

Supreme Court Justice Sandra Day O’Connor²

“The constitutional purpose of copyright is to facilitate the flow of ideas in the interest of learning. The primary objective of our copyright law is not to reward the author, but rather secure for the public the benefits from creations of authors.”

U.S. House Report, Berne Convention Implementation Act of 1988³.

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D. Copyright exemptions

Exemptions are rights granted to users of copyrighted material. This guide outlines the exemptions most commonly used in college settings.

1. The Fair Use exemption
(§107, Copyright Act)

Many activities of college life may fall under the Fair Use exemption of the Act. This exemption states in part:

“…the fair use of a copyrighted work, including such use by reproduction in copies…for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(a) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(b) the nature of the copyrighted work;

(c) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(d) the effect of the use upon the potential market for or value of the copyrighted work.”

How do you apply Fair Use?

Each situation must be decided by analysis of the four factors. To date, the courts have provided very little guidance in the interpretation of Fair Use in college contexts. It is generally understood, however, that no one factor is automatically given more weight than another, and a use that is opposed by some of the factors may still be justified if the other factors favor it.

Congress has stated that “the doctrine [of fair use] 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.” The more clearly each factor favors your intended use, the more confident you may be that the use is fair.

A helpful amplification of the four factors is provided in the Checklist for Fair Use in section M. This checklist has no legal standing, however, and does not replace the need for you to apply “an equitable rule of reason” in any given situation.

What if Fair Use is not applicable?

Consider whether one of the other exemptions applies (see parts 2 and 3 below). If no exemption covers your intended use, you must request permission from the copyright holder (see section I).

 

2. Reproduction by libraries and archives
(Summary of §108, Copyright Act).

Remember that libraries and archives may also avail themselves of the Fair Use exemption (see section D.1).

In each of the following cases, the library or archives:

• may not charge more than what is necessary to cover the cost of making the copy.
  
  
• must include a notice of copyright on the copy made, or in the absence of a notice, a warning that the material may be protected by copyright. For suggested notices and warnings, see section N.
  
  
• will not be held liable, nor will an employee of the library or archives be held liable, for copyright infringement resulting from unsupervised copying by patrons, provided that copying equipment displays a notice that the making of a copy may be subject to copyright law. For suggested notices, see section N.
  
  
• may not engage in systematic or concerted copying or distribution of copies.
  

The libraries and archives at Wheaton College may:

• make up to three copies of an unpublished work in their collections solely for purposes of preservation and security or for deposit for research use in another library or archives. If the copy is made in digital format, it may not be made available to the public in that format outside the premises of the library or archives.
  
  
• make up to three copies of a published work solely for the purpose of replacement of a copy that is damaged, deteriorating, lost, or stolen, or if the existing format in which the work is stored has become obsolete, if:
  • the library or archives has determined, after a reasonable effort, that an unused replacement cannot be obtained at a fair price, and,
• a copy made in digital format is not made available to the public in that format outside the premises of the library or archives.
  
  
• make one copy for a patron or to fulfill an interlibrary loan request of no more than one article or other contribution to a copyrighted collection or periodical issue, or a small part of any other copyrighted work, if:
  • the copy becomes the property of the user and the library or archives has had no notice that the copy would be used for any purpose other than private study, scholarship, or research; and
• the library or archives displays prominently, at the place where orders are accepted, and includes on its order form, a warning of copyright. For suggested notices, see section N.
• make one copy for a patron or to fulfill an interlibrary loan request of an entire work or a substantial part of it, if:
  the library or archives has determined, after a reasonable effort, that the work cannot be obtained at a fair price; and the copy becomes the property of the user and the library or archives has had no notice that the copy would be used for any purpose other than private study, scholarship, or research; and
• the library or archives displays prominently, at the place where orders are accepted, and includes on its order form, a warning of copyright. For suggested notices, see section N.

3. Certain performances and displays
(Summary of §110, Copyright Act as amended by the Technology Education and Copyright Harmonization TEACH Act of 2002)

Remember that some performances and displays may also be justified under the Fair Use exemption (see section D.1).

a) Works used “in the course of face-to-face teaching activities”:

• Performance or display of non-dramatic literary or musical work (such as poetry and symphonies) or reasonable and limited portions of other (i.e. dramatic) works (such as stage plays and operas), is permitted in a classroom or similar place devoted to instruction, unless the copy used was not lawfully made and the person using it knew or had reason to believe it was not lawfully made.
  

b) Performances and displays in distance education or on WebCT

This area of the law is complex. Please note that this section does not address electronic reserves (see section G). To be permitted under this exemption, the performance or display:

• must be “made by, at the direction of, or under the actual supervision of” the professor, and be part of “mediated instructional activities” that are necessary to the course, and analogous to the kinds of performances or displays that would occur in the classroom setting. (This means that you cannot post an article on WebCT, for example, unless it is something you would otherwise have provided as a handout in the physical classroom.)
  
  
• must not substitute for the purchase of books or other materials readily available on the market for a fair price.
  
  
• must not be of works that are marketed “primarily for the purpose of display as part of mediated instructional activities transmitted via digital networks.” In other words, where such works already exist, they should be purchased.
  
  
• must include a notice of copyright, or in the absence of a notice, a warning that the material may be protected by copyright. For suggested notices and warnings, see section N.
  
  
• must not be made from a copy that was not lawfully made and that the college knew or had reason to believe it was not lawfully made.
  

In addition:

• analog work may be digitized for performance or display if the work is not already available on the market in digital form.
  
  
• the performance of non-dramatic literary and musical works (such as poetry and symphonies) may be used in their entirety, but the performance of other works (such as stage plays, operas, or audio-visual recordings) must be used only in “reasonable and limited portions.” The display of any work “in an amount comparable to that which is typically displayed in the course of a live classroom session” is permitted.
  
  
• to the extent reasonable and technologically feasible:
  • the transmission must be limited to enrolled students only.
  • the copy must be made inaccessible after the class is finished.
  • the copy must not be further disseminated.
    
    
• the college must not engage in any activities that would decrypt or otherwise interfere with technological measures already employed by the copyright holder to prevent retention or unauthorized distribution of the work.
  

c) Performances of non-dramatic literary or musical works (such as symphonies) not as part of classroom teaching or distance education:

Such performances are permitted without obtaining copyright permission, as long as:

• there is no admission fee, or, if admission is charged, the proceeds are used exclusively for educational, religious, or charitable purposes.
  
  
• the performers or organizers are not paid.
  

d) Performances of dramatic literary or musical works (such as films) not as part of classroom teaching or distance education:

This is a grey area of the law. Wheaton College interprets the law as follows.

If the purpose of the performance is primarily educational, we consider it an instance of fair use, as long as:

• there is no admission fee.
  
  
• the copy (e.g. of the film being shown) was lawfully made.
  

If the purpose is primarily entertainment, we consider that there is no applicable copyright exemption. You must get permission from the copyright holder for such performances, unless the college already has public performance rights for the particular work, or you are inviting only a small number of family or friends. For more information, see section I.

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E. Computer Software
(§117, Copyright Act)

Most computer software is subject to licenses rather than the copyright law. If the Copyright Act is applicable, however, remember that many uses of computer software may be justified under the Fair Use exemption (see section D.1).

In addition, the law states specifically that you may:

• Make a “back-up” copy to protect software against damage or deletion.
  
  
• Modify software to enable it to be used on a particular computer.

But you may not:
engage in any activity that would decrypt or otherwise interfere with technological measures already employed by the copyright holder to prevent retention or unauthorized distribution of the work.

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F. Course packs sold in the bookstore

This policy is based on the college’s interpretation of a grey area of the copyright law. It applies to copyrighted works, or parts or works, which are photocopied and sold to students in the college bookstore.

Works produced in course packs should be intended as primary reading material (serving as a “textbook”) for the course. If intended as supplemental readings, library reserve should be used instead (see section G).

• Course packs are compiled and sold at the professor’s request. (The bookstore will provide faculty with instructions for compiling course packs at the time that it distributes textbook requisition information.)
  
  
• Course packs are not intended to substitute for the purchase of books or other materials readily available on the market for a fair price. In particular, no copies of works considered “consumable,” such as workbooks and test booklets, will be included in course packs.
  
  
• Short portions of works, up to and including single chapters from books or single articles from journals, may be duplicated for course packs without copyright permission, as long is it is the first time that the particular professor has used the chapters or articles in teaching the particular course. Second and subsequent uses will require copyright permission, as will portions of works greater than single chapters or single journal articles.
  
  
• The bookstore staff will seek copyright permission where necessary. Any permission fees will be passed on to the buyer of the course pack. (Please note that publishers generally deny requests for 20% or more of the content of a book. In such cases, students will be required to purchase the whole book.)
  
  
• Remember that many journal articles are available in full text online through Buswell Library. In such cases, it will likely save your students money, and be simpler, to have them locate and print the article themselves. (To determine which journals, volumes, and years are available online, go to http://library.wheaton.edu and click on “Journal List.”)
  
  
• Each work or part of a work that is included in the course pack will include a notice of copyright, or in the absence of a notice, a warning that the material may be protected by copyright. For suggested notices and warnings, see section N.
  
  
• Each pack will be sold “at cost,” i.e. for the cost of production and any permission fees.
  

For more information, please consult Wyatt Waterman in the bookstore (x5325 or Wyatt.W.Waterman@wheaton.edu).

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G. Library reserves

This policy is based on the college’s interpretation of a grey area of the copyright law. It applies to copyrighted works, or parts of works, that are copied in order to be put on reserve at the library. This policy applies equally to paper and electronic reserves, including music reserves.

Works placed on reserve should be intended to serve as incidental or supplemental reading material for the course. If intended as primary readings (serving as a “textbook”) for the course, a course pack should be prepared instead (see section F).

The Library also requests that works intended as optional or recommended readings not be placed on reserve at all, since student demand for these can usually be met by leaving the material in the library stacks.

• Copies will be placed on reserve only at the professor’s request.
  
  
• No copy will be placed on reserve if it is intended to substitute for the purchase of books or other materials readily available on the market for a fair price. In particular, no copies of works considered “consumable,” such as workbooks and test booklets, will be placed on reserve.
  
  
• Copies will be reproduced from materials lawfully obtained by the library or the professor. If the library does not own a copy of the work, the subject liaison will attempt to purchase a copy for the library collection.
  
  
• The number of copies of the item placed on reserve will be the lowest number the library believes is necessary to adequately serve the class.
  
  
• Short portions of works, up to and including single chapters from books, single articles from journals, or single pieces of recorded music, may be placed on reserve without seeking copyright permission. Copies beyond these amounts will not be placed on reserve without copyright permission unless the library believes there to be Fair Use justification.
  
  
• The library staff will seek copyright permission where necessary. Any permission fees will be passed on to the academic department the course belongs to.
  
  
• In cases where a greater amount of the book, journal, or disc is needed, the volume itself can be placed on reserve at the Reserve Desk.
  
  
• If a journal article is available in full text online through one of the library’s research databases, it will not also be placed on reserve, since students already have a means of locating and printing the article. (To determine which journals, volumes, and years are available online, go to http://library.wheaton.edu and click on “Journal List.”)
  
  
• Each copy will include a notice of copyright, or in the absence of a notice, a warning that the material may be protected by copyright. For suggested notices and warnings, see section N.
  
  
• In the case of electronic reserves, to the extent reasonable and technologically feasible:
  • Access to the copy will be limited to enrolled students only.
  • The copy will be made inaccessible after the course is finished.
  • The copy will not be further disseminated.

For more information, please consult Gregory Morrison in Buswell Library (x5847 or Reference@wheaton.edu).

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H. Works “made for hire”

Works “made for hire” are created by employees as part of their regular duties. Administrative reports, committee minutes, the college catalog and magazine, this copyright guide, and software programs written for college activities are examples of works made for hire. The college is deemed to hold the copyright to such works.

As an important exception to this rule, colleges normally recognize that the copyright to scholarly works created by faculty (such as books, articles, musical compositions, and art, as well as course notes, lectures, and exams) generally belongs to the faculty member. Of course, the college and the faculty member may enter into an agreement at any time to re-assign some or all of these rights in particular cases.

College administrators are advised to consider the question of copyright when using the services of independent contractors. Independent contractors are generally not considered employees for copyright purposes, and thus their work is not made for hire. For example, a film production company that is hired to make a promotional film about the college will retain copyright of that film unless it assigns the copyright to the college. Make sure the rights that will be assigned to the college are clearly stated, in writing, before such projects begin.

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I. How to seek permissions

Remember that you should seek permission to use a work only when:

• the work is protected by copyright (see section L), and
  
  
• you’ve checked the work itself to see if permission for use has already been given (for example, the copyright page of some scholarly journals provides blanket permission for certain educational uses), and
  
  
• your intended use does not fall under one of the copyright exemptions given in this guide, or is not permitted by the license governing use of the work.
  

How do you get permission for your intended use?

If your intended use is the public performance of an audio-visual work as described in section D.3.c and d, please speak to the Video Coordinator in Buswell Library (x5620 or Andy.J.Saur@wheaton.edu).

Otherwise:

1. Identify the copyright holder or an agency that is authorized to give permissions on behalf of the copyright holder. Many works provide this information in a copyright notice. You may also find the following sources helpful:

U.S. Copyright Office records (http://www.copyright.gov/).

Copyright Clearance Center (http://www.copyright.com).

For music:
ASCAP (http://www.ascap.com/licensing/)
BMI (http://www.bmi.com/licensing/), or
SESAC (http://www.sesac.com/licensing/licensing1.asp).

For movies:
Motion Picture Licensing Corporation (http://www.mplc.com/index2.htm).

For plays:
Dramatists Play Service, Inc. (http://www.dramatists.com/text/licensing.html), or
Baker’s Plays (http://www.bakersplays.com).

2. Check the Creative Commons (http://www.creativecommons.org/) Web site to see if the copyright holder has already granted permission for certain uses. Currently the number of authors and creators using the Creative Commons is small, but it is a good endeavor to support. Most of the works included are ones that have been published on the Web.

3. If the Creative Commons doesn’t provide for your need, request permission directly from the copyright holder or licensing agency. If the copyright holder or agency doesn’t have a Web site with an online request form, send a written letter as shown in section P. The copyright holder may decide to charge you for permission. You are free to negotiate the price. Permissions received through agencies will almost certainly come with a non-negotiable fee.

4. Keep records of all correspondence. If you receive oral permission from the copyright holder, follow it up with a letter, confirming the conversation.

5. It is good form to thank copyright holders for permissions received, in the acknowledgement section of the new work you create or publish.

6. Remember that failure to receive permission (for example, when the copyright holder does not respond to your request) does not necessarily justify the use of a work.

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J. If you violate copyright

Who’s responsible?

Responsibility to avoid violating the copyright law rests primarily upon you, not the college. It is important therefore that you make a good-faith effort to understand the law and comply with it.

What if your good-faith efforts prove wrong?

The only way to know for sure that you’ve applied the law incorrectly would be a court ruling against you. It is reassuring to know, however, that in the unlikely event you are taken to court, the law states that college employees acting within the scope of their employment will not be held liable for the statutory damages of copyright infringement if they “reasonably believed and had reasonable grounds for believing that [their] use was fair use” (§504 c. 2, Copyright Act).

For guidance in any particular circumstance, please consult one of the people listed in section A.

What if you are notified that you have violated copyright?

The responsibility to monitor copyright compliance rests with the copyright holder. If a copyright holder believes that you have infringed copyright, that person or his/her lawyer will most likely send you a “cease and desist” letter. If you receive such a letter but do not wish to comply because you believe your use is justified under the law, please notify one of the people listed in section A. In some cases, it will be important for the college to get legal advice.

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K. Handling your own copyright

1. Contracts with publishers

When your book, article, image, or other work is accepted for publication, the publisher will give you a contract to sign. This contract usually transfers to the publisher all copyright of your work. In such cases, the publisher is granted not only the exclusive right to publish your work, but also the exclusive right to enter into contracts or give permission for future uses of your work (such as its inclusion in ATLA Religion Index or JSTOR, its re-publication, or its use by individual people) and to charge permission fees for such uses. Once you transfer your copyright to a publisher, even you, the author, must seek the publisher’s permission for uses beyond what is permitted by Fair Use and the other exemptions specified in the law.

Although it usually proves difficult, you are entitled to negotiate the contract. For example, you may want to assign to a publisher the right to publish your article in a scholarly journal, but reserve the right to make it available on the Web in an open access archive after a certain length of time has passed.

Some publishers permit professors and students to freely copy works or parts of work for many academic uses. Other publishers have restrictive policies and require high permission fees. Which publication model do you want to support? Copyright is one consideration among many to bear in mind when deciding where to send your manuscript.

This is not to say that publishers who charge permission fees are acting unfairly. Each publisher has a legitimate interest in how the works it publishes are made available and used, and at what price. The copyright law is concerned with balancing the interests of copyright holders and users of copyrighted works, in order to “promote the progress of science and the useful arts” (see section C). The better you understand copyright law, the better equipped you are to encourage publishers to maintain this balance.

2. Registering your copyright

To register your copyright, follow the instructions provided by the U.S. Copyright Office at http://www.copyright.gov.

It is not necessary to register your copyright in order to assert it. It is recommended that you do so, however, for the following reasons:

• If you want to encourage people to seek your permission for uses beyond what the law grants them, you should make it possible for them to find out who you are and how you may be reached.
  
  
• If you do not register your copyright with the U.S. Copyright Office, you may not be able to collect damages in the event of a lawsuit.
  
  

3. Granting permissions

When you hold copyright of a work, you may assign or license all or only some of your rights to others. For example, you may decide to allow unlimited copying and distribution of your work with the proviso that the uses made of it be strictly non-commercial. Or, you may allow one theatre club to perform your play but not give permission to other clubs.

Exclusive rights must be granted in writing, but nonexclusive rights (that is, rights you give to more than one party) can be granted orally as well as in writing.

If you are publishing your work on the Web, or making a copy of it available there, consider registering your work under a Creative Commons license to spell out specifically how you will permit others to use it. For more information, please consult http://www.creativecommons.org/license/.

4. Joint copyright

You may hold copyright jointly with other creators or authors of a work. In such cases, the parties are free to exercise their rights independently, including the right to grant non-exclusive rights to new parties, as long as profits are shared equally. One party cannot re-assign copyright or grant an exclusive right to new parties, however, without the consent of the others.

If you embark upon a work of joint authorship, you are advised to consider the copyright question carefully. You and your colleague(s) should put your copyright agreement in writing, before the project begins.

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L. When works pass into the public domain
(From Carrie Russell, Complete Copyright: An Everyday Guide for Librarians. American Library Association. 2004. Used by permission.)

* If the work is of corporate authorship, copyright endures for the shorter of 95 years from publication, or 120 years from creation.

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M. Checklist for Fair Use
(Modified from Carrie Russell, Complete Copyright: An Everyday Guide for Librarians. American Library Association, 2004. Used by permission.)

See section D for assistance in interpreting this checklist.

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N. Suggested notices and warnings

1. Notice for interlibrary loan orders and copies made for library patrons

This notice must be printed prominently on interlibrary loan order forms and posted at locations where copies are made for patrons.

“Notice: Warning concerning copyright restrictions. 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 specific 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 a copying order if, in its judgment, fulfillment of the order would involve violation of copyright law.” ⁵

2. Notice for copies made for library patrons, or for digital copies made for purposes described in section D, part 3

This notice must be affixed to copies made, unless the copy already contains a notice of copyright.

“This material may be protected by copyright.”

A better notice, recommended especially for works delivered by electronic reserve in the library or on WebCT, is:

“This material is made available at this site for the educational purposes of students enrolled in [course] at Wheaton College. The material is subject to U.S. copyright law and is not for further reproduction or transmission.” ⁶

3. Notice for copying equipment

This notice must be posted on or near all photocopiers and other similar equipment on campus.

“Notice: The copyright law of the United States (Title 17, U.S. Code) governs the making of photocopies or other reproductions of copyrighted material. The person using this equipment is liable for any infringement. For more information about the copyright law, please consult the Wheaton College Copyright Guide at: www.wheaton.edu/acad/copyright/.”

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P. Sample permission request letter

[date]

[copyright owner’s or agent’s name and address]

Dear [copyright owner or agent]:

I am writing to ask your permission to use [give full citation of the work] for the purpose of [describe the intended use in sufficient detail].

Please complete and return this form to me at your earliest convenience. Thank you very much for your consideration.

Sincerely yours,

[your name, position, and contact information]

I do _____ do not _____ grant permission for my work to be used for the purpose stated above.

Name ________________________

Signature _____________________

Date _________________________

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Q. Sample scenarios with suggested answers

For professors:

Q: Can I photocopy an article from a newspaper or journal and hand it out to my students in class?

A: Yes. §107 of the Act explicitly permits multiple copies for classroom use.
Reference: Section D.1

Q: Can I include a cartoon, graph, or other image on my WebCT page or PowerPoint slides?

A. Yes. For your PowerPoint slides, §110 of the Act explicitly permits the display of most works by a teacher in the classroom. For WebCT, §110 of the Act permits display of most works that are “necessary to the course” and “analogous to the kinds of displays that would occur in the classroom setting.”
Reference: Section D.3.a/b

Q: I want to show Hitchcock’s North by Northwest in class. Is that OK?

A: Yes. Showing films in class (as part of your teaching activity) is explicitly permitted in §110 of the Act.
Reference: Section D.3.a

Q: I published an article in a scholarly journal a few years ago. Can I post a copy of it on WebCT or on my personal web site and direct my students to it?

A: Yes, if you own the copyright to it. Otherwise the answer is Maybe. The first thing to do is check if the library already makes available a copy of the article in full text online. If so, there is no problem with linking that library URL to your WebCT or other web page. If the article is one that you would have otherwise given to your students as a handout in class, you can post it without getting copyright permission as long as you comply with the requirements listed in section D.3.b. If the article is one that you would otherwise have included in a course pack or given to the library to be placed on reserve, you should not post it without getting permission. Or, you could try to make a case for this as an instance of fair use.
Reference: Section D.1 and 3.b

Fair Use analysis:

Purpose: favorable. The purpose is scholarship.
Nature: favorable. The work in question was published and is factual, non-fiction and is important to the educational objective.

Amount: moderately unfavorable. The whole work is being copied, but the amount is “appropriate to favored educational purpose.”

Effect: unfavorable. If you are posting this article as a means of circumventing the course pack or library reserve procedures, you may be replacing sales of the work or impairing the market for the work. There is likely a “reasonably available licensing mechanism” and “affordable permission” available that you should use instead.

Q: The orchestra I conduct is planning to perform Mozart’s Requiem. Can I photocopy the sheet music and distribute it to the performers?

A: This is tricky. The Requiem itself is not copyright-protected, since it was composed so long ago, but the sheet music itself may be. Consult section L for guidance. If the music you want to use is protected, you will need to get permission from the copyright holder if you do not wish to buy copies of it for everyone. Alternatively, you could look for another edition of the music that is not protected.
Reference: Section D.1 and 3.c

Fair Use analysis:
Purpose: moderately favorable. The use is being made at a non-profit educational institution but the purpose is primarily entertainment.

Nature: moderately unfavorable. The Requiem is a highly creative work.

Amount: unfavorable. The whole work is being copied.

Effect: unfavorable. The photocopying is replacing sales of the work and numerous copies are being made.

Q: The orchestra I conduct is planning to perform Mozart’s Requiem. Do I have to get copyright permission for the performance?
A: No permission is necessary. The use is permitted by §110 of the Act.
Reference: Section D.3.c

For staff:

Q: I’m creating a PowerPoint presentation for an upcoming meeting. Can I include an image I found on the Web?
A: Probably, but it would be better to try to find an image that is being offered on the Web explicitly for copying.
Reference: Section D.1

Fair Use analysis:
Purpose: moderately favorable. Your use is for an activity of a non-profit educational institution, but it isn’t for the purpose of teaching or scholarship.

Nature: moderately unfavorable. The image was published on the Web and is creative rather than factual.

Amount: unfavorable. You want to use the whole work.

Effect: favorable. You are making only one copy, and there is no significant effect of the market or potential market for the image. You are making the image available only for a limited time.

For students:

Q: I want to host a showing on campus of The Lord of the Rings: The Return of the King. Do I need to get copyright permission?
A: If the primary purpose of the showing is entertainment or club/team bonding, you must get permission. (Note: if you are inviting only a small circle of friends to watch the film with you in your residence hall room, house, or apartment, you do not need permission.) If the primary purpose of the showing is educational, you do not need permission. As a first step, ask yourself the clarifying question, “What is my intent for showing this film?” and then contact Buswell Library’s video coordinator (x5620) for further guidance in reaching a conclusion.

Please note: inviting a professor to lead a discussion before or after the film does not automatically turn entertainment into education. Call the video coordinator for guidance.
Reference: Section D.3.d

Fair Use analysis:
Purpose: unfavorable or unfavorable, depending upon whether the showing is primarily entertainment or education.

Nature: unfavorable. The film is a highly creative work of fiction.

Amount: unfavorable. The whole work is being shown.

Effect: unfavorable. Showing the film could replace sale of the work (e.g., movie tickets or rentals from video stores). Also, you are showing the film in a public setting.

Q: I’m creating a poster to advertise my club’s event. I found a graphic on the Web that I’d like to download and use on my poster. Is that OK?

A: Probably not, unless the image is being offered on the Web explicitly for copying.
Reference: Section D.1

Fair Use analysis:
Purpose: moderately unfavorable. The purpose of your event is cultural or social, not educational.

Nature: moderately unfavorable. The image was published on the Web and is creative rather than factual.

Amount: unfavorable. You want to use the whole work.

Effect: moderately favorable. You are making only a few copies of your poster, and there is no significant effect of the market or potential market for the image. You are making the image available in a public forum, but it is only for a limited time.

Q: My drama club wants to perform Dorothy Sayers’ play, The Zeal of Thy House (published in 1937). Do we have to get copyright permission?

A: Consult section L for guidance. From the information provided there, you will learn that a work published in 1937 is in the public domain (is not protected by copyright) if it was published without a copyright notice. Check the physical item: does it contain a copyright notice? If not, you’re in the clear. If there is a copyright notice, section L instructs that it may still be in the public domain if the copyright was not renewed. Since there is no easy way of determining this, the best course of action is to get permission from the copyright holder, or look for another printed edition of the play that is not protected.
Reference: Section D.1 and 3.d

Fair Use analysis:
Purpose: unfavorable. The purpose of your event is primarily entertainment, not education.

Nature: unfavorable. The work is highly creative.

Amount: unfavorable. You want to use the whole work.

Effect: moderately unfavorable. This is a public performance (i.e., anyone is welcome is attend) and a licensing mechanism or affordable permission is likely available. The fact that you are neither charging admission nor paying the actors has no effect on the situation.

Q: For my history of art course I am writing an essay on Francisco Goya. I want to include some images of his paintings in my essay. Is there any problem with that?

A: No problem.
Reference: Section D.1

Fair Use analysis:
Purpose: favorable. The purpose of your use is “criticism,” “comment,” or “scholarship.”

Nature: moderately favorable. The work is highly creative, but images of the paintings have been published and your use is important to educational objectives.

Amount: moderately favorable. You want to provide images of the whole painting(s) but that amount is appropriate to the educational objective.

Effect: favorable. Only one copy of each image will be made, and there in no significant effect of the market for the work (e.g. your use will not decrease sales for the book you got the images from). You are not making your copy publicly accessible, since only you and your professor will view it.

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¹ Kenneth D. Crews. Copyright Essentials for Librarians and Educators. Chicago: American Library Association, 2000, p. 9.

² Quoted in Carrie Russell, “Current Copyright Issues Facing Academic Librarians,” a seminar offered by the American Library Association, 2004.

³ Ibid.

⁴ House Committee on the Judiciary, Report on Copyright Law Revision, 94^th Congress, 2d session, 1976, House Report 94-1476, 65. Quoted in United States Copyright Office, Circular 21, “Reproduction of Copyrighted Works by Educators and Librarians.” Cp. Kenneth D. Crews: “Rules about word counts and percentages have no place in the law of fair use. At best, they are interpretations intended to streamline fair use.” Copyright Essentials for Librarians and Educators, p. 55.

⁵Code of Regulations, Title 7, §201.14.

⁶Suggested in Kenneth D. Crews, Copyright Essentials for Librarians and Educators, p. 71.