Copyright Guidelines (Supplement to WSU Policy Section 3.36)

Effective: July 01, 1997

The Office of General Counsel provides these Copyright Guidelines for the WSU community (faculty, staff and students) to address the actions of those who wish to reproduce, alter, distribute, display or perform works that are protected by copyright. Copyright protection applies to a variety of creative works, printed materials, sound recordings, video recordings, visual artworks, computer software, and other works, including but not limited to some online internet postings. These Copyright Guidelines have been drafted to address issues related to these various media. They represent our best present legal advice regarding copyright issues in a university setting.

  1. Introduction

    The copyright law of the United States (Title 17, United States Code) provides legal protection for authors of original works, including literary, dramatic, musical, artistic, and other intellection products. An author's copyright in a work arises at the moment the work is created in a fixed format. Publication is not essential for copyright protection. The copyright symbol (©) is also not required for copyright protection to occur, although registration of copyright with the U.S. Copyright Office is necessary to file a federal infringement lawsuit and makes public record of claim to copyright owner over a work. An author may transfer copyright ownership to another party. Section 106 of the copyright law grants a copyright owner the exclusive right to do and to authorize others to:

    • 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 copyrights sound recordings by means of a digital audio transmission.

    Instructors often seek to duplicate the written copyrighted works (protected works) of another to be used for professional purposes or to be disseminated in the classroom to further learning. Duplication can occur by physically copying the protected work or having the work transferred or retransferred into an electronic format. Classroom dissemination of protected works can occur when the professor distributes actual copies of the work to students or enables the students to obtain electronic copies via email or other electronic mediums. It is the responsibility of any faculty who duplicates or disseminates such protected works to comply with all applicable copyright laws and regulations. Simply providing a link to works located on the Internet is not in itself considered duplication and dissemination.

    The general rule is that copyright holders have the exclusive right to their works. As such, instructors are generally prohibited from duplicating and/or disseminating the protected works of another without the copyright holder's permission. Instructors are encouraged to obtain the written permission of copyright holders before duplicating their protected work. Permission may be sought from the actual copyright holder or the Copyright Clearance Center at or course packs may be purchased through XanEdu or other copyright clearance services. Copyright holders may require a fee before they will grant the requesting instructor permission to duplicate their protected work. Often the author of the protected work is not the copyright holder so getting permission from the author may not be enough.

  2. Exceptions

    There are two recognized exceptions and another potential exception to the general rule that says copyright holders have the exclusive right to their works. The two exceptions are: 1) Works in the Public Domain and 2) the Fair Use Exception. The potential exception applies to orphan works. These guidelines attempt to conservatively summarize these exceptions; however, more liberal applications of these exceptions may apply. You are encouraged to contact the Vice-President and General Counsel's Office for advice before you seek to duplicate protected work or if you have any questions or concerns about copyright infringement. The Shocker Printing may refuse to prepare copies of what it deems to be a potential copyright infringement.

    1. Works in the Public Domain

      Works that are considered in the “public domain” may be used (i.e., copied) freely. In addition, there are some scholarly publications such as journal articles that include a note offering to users the right to copy for “educational purposes.” The following categories of publications are generally considered to be in the public domain; that is, their use is not protected by copyright law:

      1. Works created and published, as a rule of thumb, about a century ago;1
      2. Works where the creator has expressly disclaimed a copyright interest; and
      3. Works created by the federal government, for example, data files from the 1990 Census.

      1 Pursuant to changes made by the Copyright Term Extension Act of 1998 (Pub. L. No. 105-298) term of copyright is now life of the author plus 70 years, and for corporate, anonymous, or pseudonymous works, it is 95 years from the year of the first publication, or 120 years from the year of creation, whichever is first. Thus, older than a century is not an exact measure, but rather a rule of thumb. See Cornell University's Copyright Information Center for a chart that may be used to determine when a work passes into the public domain.

    2. Fair Use

      Copyright law allows for the reasonable unauthorized use of an original work during the time of the author's temporary monopoly when the use is thought to advance the public welfare. This exception to copyright law is known as the “Fair Use Doctrine,” and it is codified at Section 107 of the copyright law. Relying on the doctrine of fair use requires educating oneself about what fair use it. The following section set forth various ways of utilizing the fair use doctrine.

      1. Safe Harbor Guidelines for Fair Use

        However, the “Agreement on Guidelines for Classroom Copying” was authored by representatives of the educational community and publishers in 1976 and made part of the Congressional Record. The below is a reiteration of those guidelines that generally provide a safe harbor for those who are hesitant about interpreting and applying the fair use guidelines, however, it is NOT the law and should only be referenced for guidance. In some circumstances more extensive copying may qualify as “fair use” and in others, a paragraph, if it is significant enough to the work may NOT qualify as “fair use.”

      2. Photocopying of Music

        During debate on the changes made to copyright law in 1976, various representatives of the publishing industry and music teacher associations met and agreed on minimum guidelines for educational fair use on copying of music. Copying beyond the amount stated in the Guidelines for Educational Use of Music may be justified by fair use after careful analysis, but seeking permission is always preferable.

      3. Fair Use as Set Forth in Case Law and the Statute.

        1. The doctrine of fair use

          The doctrine of “fair use,” embedded in Section 107 of 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:

          1. The purpose and character of the use, including whether the copied material will be for nonprofit, educational, or commercial use. Personal, nonprofit or educational usage 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 (including multiple copies for onetime classroom use ) are considered “core” fair uses, and thus weigh in favor of a finding of fair use. A work that parodies a copyrighted work is considered a “transformative” work and generally this type of use tips the balance in favor of a finding of fair use.

          2. The nature of the copyrighted work, with special consideration given to the distinction between a creative work and an informational work. For example, photocopies made 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.

          3. The amount, substantiality, or portion used in relation to the copyrighted work. This factor requires consideration of the proportion of the larger work that is copies and used, and the significance of the copied portion.

          4. The effect of the use on the potential market of the copyrighted work. For example, making 26 copies of worksheets from a math workbook instead of buying one for each student would probably have a negative effect on profits for the author of the workbook, and would not likely be considered fair use. On the other hand, a use that is clearly a fair use under the above three factors may be found to be a fair use even if its use could have a somewhat negative effect on the market. This factor is often granted great importance by the courts.

        2. What constitutes fair use is a judgment call.

          There is a tension between encouraging the academic community to exercise the fair use doctrine in order to maximize fair use of materials and exposing the university to liability for violation of copyright rights. If the faculty member or other employee chooses to rely on the fair use doctrine, she/he must do so with prudence and fair regard for all the elements of fair use. If a faculty member or other employee has any question about whether proposed copying falls within the fair use doctrine, he or she is encouraged to contact the Office of Vice-President and General Counsel.

          The WSU Policies and Procedures Manual Section 15.04 should be read in conjunction with these Guidelines.

    3. Orphan Works

      There is another potential exception to the general rule that says the copyright holder has the exclusive rights to the protected work. This potential exception applies to orphan works which are defined as works for which no copyright holder can be found, and thus for which permission to use these works cannot be obtained.

      To be an orphan work, the instructor should be able to show that he/she has exercised good faith and due diligence in seeking permission from the copyright holder but could not determine the copyright holder. This exception has been endorsed by numerous scholars and legislatures. However, there is no law or court decision that directly applies this exception to the general rule. Instructors are encouraged to contact the Office of the General Counsel for guidance before relying on this exception.

  3. Licensed Works

    The business model has changed dramatically in the past decade and many libraries and universities are now licensing works rather than purchasing them outright. For a current list of licensed works and products, contact University Libraries.

    By way of example, one of these licensed databases is LEXIS-NEXIS Academic Universe. LEXIS-NEXIS is a powerful research tool that contains a wealth of databases, including news, business, legal research (cases, codes, law review articles and more), medical (full text medical journal articles) and reference.

    If you wish to use an article in class that is contained in the LEXIS-NEXIS database or many of the other databases, the licensing agreement allows you to make copies of the article and distribute the article to your students. In the same vein, such an article could also be posted on Electronic Reserve.

    Different databases have different terms, conditions and features. For example, some databases contain academic journals and allow the faculty member to link directly to the article for educational purposes. Copyright notices must be maintained on any of the licensed materials. For a current list of available licensed databases, University Libraries.

    Reprinting of licensed materials has nothing to do with fair use or the public domain, but is instead based on the contract WSU has with the provider of the materials. If the article you wish to use is not in the licensed database, then you need to consider if the work is in the public domain, if use of the work would be a fair use, or if permission is necessary.

  4. Copyright Permission Checklist

    When seeking to reproduce, prepare derivative works, distribute copies, publicly perform or publicly display material that may be protected under copyright law consider the following:

    • Is the work in the public domain? If yes, then no permission is necessary.
    • Is the work licensed through WSU for the particular use in question? If so, then permission is not necessary.
    • If the work is not in the public domain or licensed, may fair use be invoked instead of obtaining permission?

      • See Safe Harbor Guidelines for Classroom Copying and Guidelines for Educational Use of Music (Section II.B.1 and 2)

      • If the use does not fit within safe harbor guidelines, then perform a fair use analysis, taking all four factors in from Section 107 of the copyright law as set forth in Section IV.B.3.

      • If you think that fair use may be appropriate but you are not sure, consult with the Office of Vice-President and General Counsel.

    If it is determined that you willfully disregarded you might not be defended by the University if you are the subject of an infringement claim. If the work is not in the public domain, not licensed by WSU, and fair use does not apply, then you must obtain permission from the copyright owner. A helpful chart for sorting this out can be found at http://www.knowyourcopyrights.org/bm~doc/kycrmatrixcolor.pdf.

  5. Library Reproduction

    1. General Information

      Libraries may reproduce copyrighted material under Section 108(a) of the copyright law however the rights of reproduction pursuant to this section of the copyright law are contingent on the following conditions:

      1. Only one copy of a work can be made, unless otherwise specified in the subsections that follow.

        1. The library reproduction and distribution must be without purpose of direct or indirect commercial advantage.

        2. The collections must be open to the public or unaffiliated researchers in a specialized field.

        3. All copies made under Section 108 must include the copyright as it appears on the original. If no notice was included on the original, then the library must include a legend that states that the work may be protected under copyright.

      2. Subsections (b) and (c) of Section 108 of the copyright law provide limited exceptions permitting libraries to make up to three copies of a copyrighted work for preservation, deposit or replacement purposes, under certain circumstances. The work must already reside in the library making the reproduction, and if the work is reproduced in digital format, the library's right of distribution of that copy is limited to the library's physical premises. (§ 108(b)(2)).

      3. The reproduction and distribution by a library or archive of the following works are allowed only for preservation and replacement purposes, unless the works listed below are published as parts of non-excluded works, then their copying is allowed under the broader provisions of 108.

        1. Musical Work
        2. Pictorial, graphic or sculptural work, or
        3. Motion picture or other audiovisual work (other than audiovisual of news)

    2. Library Copying for Archive Purposes

      Federal copyright law, with respect to archiving is narrower than other library right of reproduction. In general, a library may make three copies of an unpublished work that exist in its collection if the purpose is preservation or security or for deposit for research use in another library that meets the three conditions listed in Section V.A. In the absence of a license to reproduce or permission from the author or copyright owner, if an unpublished work is reproduced in digital format, the library's right of distribution of the copy is limited to the library's physical premises.

      A library may make three copies or a published work when an unused replacement cannot be obtained at a fair price, but only to replace a damaged, deteriorating, lost or stolen copy, or if the existing format of the copy has become obsolete, two additional conditions must be met for published works:

      1. No copies can be made until the library first consults the copyright owner and standard trade sources to determine an unused copy cannot be purchased at a fair price; and
      2. If a work is reproduced in digital format, the copy cannot be made available outside the premises of the library.

      Source: Overview of the Libraries and Archives Exception in the Copyright Act: Background, History, and Meaning Authors: Mary Rasenberger and Chris Weston, April 2005

    3. Patron Requests and Interlibrary Loans

      Section 108 (d) of the copyright law allows the library to make one copy of a single article from a collection or a smaller part of a larger work at the request of a patron under the following conditions:

      1. The work must be in the collection of the library (or another library),
      2. The copy must become in the property of the requesting patron, and can't be added to the library's collection,
      3. The library must have a notice that the copy will not be used for anything other than private study, scholarship or research purposes, and
      4. The library must display prominently copyright warnings where requests are made, and attach the same warning to copy order forms.

      Section 108 (e) of the copyright law allows the library to make single copies of entire works, or large portions thereof, at the request of a patron under the four conditions above, with the additional requirement that the library has first determined, on the basis of a reasonable investigation, that a copy of the copyrighted work cannot be obtained at a fair price.

      No systematic reproduction

      Section 108 (g) places further limits upon the ability of the library to make copies for patrons. Systematic reproduction of works is forbidden.

    4. Required Copyright Warnings

      1. All WSU libraries must display prominently (at least 18 points in font size) the following notice at the place where orders for copies are accepted:

        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 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 copy order if, in its judgment, fulfillment of the order would involve violation of copyright law.

        The same text must be displayed (in font size no smaller than utilized throughout the form, and in no case smaller than 8 points) in a box located prominently on all order forms for copies, either on the font side of the form, or immediately adjacent to the space calling for the name and signature of the library patron. All fax and e-mail order forms must also incorporate the same notice.

      2. Photocopy Machines/ Computer Terminals

        Every photocopy machine on campus and all locations where CD-ROMS or on-line services are used must include effective signage incorporating the following text:

        Notice

        The copyright law of the United States (Title 17, United States Code) governs the making of photocopies or other reproductions of copyright material. The person using the equipment is liable for any infringement. Note that this provision applies to both the downloading and uploading of documents to the Web.

    5. Library Reserve Services

      Copying for library reserve is governed by Section 107 of the copyright law, the fair use doctrine. Requests for one semester use of multiple copies of printed materials may be complied with as long as the requesting faculty member has exercised reasonable judgment in determining the number of copies needed for his/her students to read the material. Libraries should not retain reserve copies longer than one semester.

      Copying of video recordings and slides may be more problematic. The fair use doctrine may be applied differently, depending upon the media in question. This is a judgment call for the librarians who are encouraged to seek advice from the Office of the General Counsel. Articles and other material that are submitted for reserve are considered the property of the instructor and will be returned at semester-end.

    6. Electronic Reserves

      Electronic reserve material requires special consideration. See the American Association of Libraries statement on Fair Use and Electronic Reserves, as well as the ARL Know Your Copy Rights brochure, which contains a chart that lists the situations in which fair use applies to electronic reserves.

      See also the ARL FAQ on Uses in the Online Classroom

  6. Audiovisual materials

    1. Films and Video: Classroom Use

      Possession of a film or video does not confer the right to show the work to others outside of one's home. The copyright owner specifies at the time of purchase or rental, the circumstances which a film or video may be “performed” For example; videocassettes from a video rental outlet usually bear a label that specifies “Home Use Only.” However, whatever their labeling or licensing, use of these media is permitted in an educational institution so long as certain conditions are met.

      Section 110(1) of the federal copyright law specifies that the following is permitted: 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 similar place devoted to instruction, unless, in the 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 under this title and that the person responsible for the performance knew or had reason to believe was not lawfully made.

      The copyright notice must be included and the relationship between the film or video and the course must be explicit. The film should not be shown for entertainment or recreation.

    2. Films and video: Use outside the Classroom

      Public Performance of a video outside the classroom (for example at the RSC or other venues outside of a dorm room or in a similar small group) is governed by a different set of guidelines. In this situation, public performance licenses must be obtained.

    3. Copying Television Programs Off the Air for Classroom Use

      The following rules of thumb for copying television programs off the air for classroom use should be followed to ensure compliance with the air fair use doctrine. The rules below do not apply to programs shown on pay cable or pay TV.

      These rules of thumb are reprinted with permission from “A Guide to Copyright Issues in Higher Education,” National Association of College and University Attorneys (NACUA), 4th Ed. (1997).

      1. Off-the-air recordings may be used only once by individual teachers in the course of “time-shifting” the program in order for it to be seen in the class. After the program is seen once, it should be erased
      2. The off-the-air recordings may be used only once by individual teachers in the course of “time-shifting” the program in order for it to be seen in the class. After the program is seen once, it should be erased.
      3. A limited number of copies may be reproduced from each off-air recording to meet the legitimate needs of teachers under theses guidelines. Each such additional copy shall be subject to all provisions governing original recording.
      4. Off-the-air recordings need not be used in their entirety, but they may not be altered from their original content. They may not be physically or electronically combined or merged to constitute teaching anthologies or complications.

      These rules of thumb are based on the 1979 “Guidelines for Off-Air Recording of Broadcast Programming for Educational Purposes,” contained in the House Report on Piracy and Counterfeiting Amendments (H.R. No. 494, 97th Cong., 1st Sess. At 8-9), as well as the more liberal Supreme Court decision in Sony Corp. of America v. Universal City Studios, 464 U.S. 417 (1984).

  7. Audiovisual Multimedia, Fair Use

    Multimedia refers to the use of more than one of the categories of work protected by copyright law, such as a sound recording with pictorial or graphic images. As part of the CONFU process, EDUCATIONAL MULTIMEDIA FAIR USE GUIDELINES were produced in 1996. These guidelines apply to use, without permission, of portions of lawfully acquired copyrighted works in educational multimedia projects created by educators (i.e. faculty, teachers, instructors and others who engage in scholarly, research and instructional activities for educational institutions) or students for course-related work. Key elements of the guidelines are summarized below. These guidelines are a starting point for those who are trying to apply the fair use doctrine to the creation of multimedia. There is no consensus among universities and publishers that the following guidelines are binding and the following fair use guidelines do not necessarily assure legal compliance. Note that the fair use doctrine may also allow for greater usage than the guidelines.

    Educational Multimedia Fair Use Guidelines

    Time

    Educators may use their own projects for a period of up to two years after first instructional use. Usage beyond that period requires permission for each copyrighted portion of the work. Students may use their own projects in the course for which the project was created, and in their own portfolio as an example of their academic work.

    Portion

    Motion Media

    Up to 10% or three minutes of a source, whichever is less, of a single copyrighted motion media work.

    Text

    Up to 10% or 1000 words of a source, whichever is less, of a single copyrighted work. An entire poem of less than 250 words, but no more than three poems by one poet, or five poems by different poets from any single anthology. In poems of greater length, up to 250 words, but no more than three excerpts by a single poet, or five excerpts by different poets from a single anthology.

    Music, Lyrics and Music Video

    Up to 10% but no more than 30 seconds of music and lyrics from a single musical work. Any alterations to a musical work shall not change the basic melody of the fundamental character of the work.

    Illustrations, Photographs

    A photograph or illustration may be used in its entirety. No more that five images by one artist or photographer. No more that 10% or 15 images, whichever is less, from any single published work.

    Numerical Data Sets

    Up to 10% or 2500 fields or cell entries, whichever is less, from a database or data table. A field entry is a specific item of information in a record of a database file. A cell entry is the intersection where a row and a column meet on a spreadsheet.

    Copying and Distribution

    The original and two use copies, one of which maybe placed on reserve. If a use copy is lost, stolen or damaged, an additional replacement copy may be made.

    Copyright Notice

    Though it can be difficult to determine what is copyright protected and what is in the public domain, the multimedia creator is responsible for adhering to copyright law. The opening screen of a program should contain the following notice: “certain material are included under the fair use exemption of U.S. Copyright Law and have been prepared according to the educational multimedia fair use guidelines and are restricted from further use.” Credit the sources and display the copyright notice and copyright ownership information if shown in the original source. Crediting the source must adequately identify the source of the work, giving a full bibliographic description where available (including author, title, publisher and place and date of publication). The copyright notice includes the word “Copyright” or the copyright symbol, the name of the copyright holder, and the year of first publication. Any alternations of copyrighted items must be noted.

  8. Computer software

    There is both civil and criminal liability infringement of the rights of a software copyright owner. Copying software without permission may be a crime even if the person copying the software does not intend to violate the law. Copying an entire software program is highly unlikely to qualify as a “fair use.” WSU negotiates site licenses with software vendors whenever possible for software products that are selected for extensive use at the University, since these arrangements provide the WSU community with efficient access to computer programs that support the curriculum while assuring the copyright owner a fair royalty.

    Operate on the assumption that software is copyright protected even if the software has no copyright symbol. Do not make copies of software (other than for backup purposes) unless permission is sought from the copyright owner, the copying is permitted under a WSU licensing agreement, or the program is clearly “freeware.” Whether the software is transferred from the original to hard disk or to an archival compact disc, the backup copy is not to be used at all as long as the other copy is functional.

    Libraries are permitted to lend software, but only for temporary use, not for copying. If the borrower transfers the software to a hard disk, the program must be deleted when the borrowed item is returned. A warning to copyright must be affixed to the packaging that contains the copy of the computer program which is the subject of a library loan to patrons, by means of a label durable attached to the copies or the container for the copies. The form of the copyright notice is as follows:

    NOTICE: Warning of Copyright Restrictions

    The copyright law of the United States (Title 17, United States Code) governs the reproduction, distribution, adaptation, public performance, and public display of copyrighted material. Under certain conditions specified in law, nonprofit libraries are authorized to lend, lease, or rent copies of computer programs to patrons on a nonprofit basis and for nonprofit purposes. Any person who makes an unauthorized copy or adaptation of the computer program, except as permitted by Title 17 of the United States Code, may be liable for copyright infringement. This institution reserves the right to refuse to fulfill a loan request if, in its judgment, fulfillment of the request would lead to violation of the copyright law.

  9. Performances

    Definitions

    • Non-dramatic

      "Non-dramatic" excludes audiovisual works but includes works such as poetry, short story, and non-dramatic musical works. Musical compositions are considered non-dramatic musical works.

    • Dramatic works

      Dramatic works includes all audiovisual works such as films, videos, opera, music videos, and musicals.

    • Perform

      To “perform” a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.

    1. In the Classroom

      Section 110 of the copyright law is clear that the scope of performance rights in the classroom is very broad. The only limitation is that a legitimate copy must be used.

    2. Transmission

      When discussing the use of the web to augment the delivery of classroom materials, or in connection with distance education, all portion of a non-dramatic work may be transmitted as long as the display is an integral part of the class and teaching content, the transmission is solely for students in the class, and technological measures are implemented that prevent retention of the work accessible from and prevent further dissemination of the work. With respect to dramatic works, only a reasonable portion of the work may be transmitted. Section 110 was amended by the TEACH Act which imposes a number of limitation upon transmissions of performances.

      The TEACH Act modifies section 110(2) of the copyright act which pertains to transmissions of performances and displays of copyrighted works. To transmit a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent. Therefore, any time the performance or display of a copyrighted work is transmitted, TEACH is potentially implicated. This would include “distance education courses”, “traditional” courses with an online component, cable TV courses, and so forth.

    3. Public Performances Outside the Classroom

      Copyright permission must be obtained for all public performances of dramatic literary or musical works that are not in the public domain and that are not part of the classroom instruction.

      Note that the fair use may still apply in any of the above contexts. An example might be showing a film on campus (but not in the classroom) when the film to be shown is an orphan work and the copyright owner cannot be determined. In this instance, fair use is likely to apply. See the four factor test codified at Section 107 of the copyright law and set forth in Section II.B.3.

  10. Liability for online Activities

    The Digital Millennium Copyright Act of 1998 requires universities who wish to obtain the liability protection available under the law to adopt and implement a policy that provides for the termination of the computer privileges of users who are repeat infringers with respect to online copyright violations. In accord with the law, students who display a pattern of conduct in their use of the WSU computer network that creates legal liability for the university may have their computer privileges terminated. See WSU Policies and Procedures Manual Section 19.12. For faculty and other staff, including graduate students performing a research or teaching function, the standard that the University will be advised to use will be as follows:

    1. If the University receives formal notification of copyright infringement due to the actions of a WSU employee using the WSU network, the University will notify the employee about the claimed infringement.

    2. It will be the burden of the employee to show that the alleged infringement is not a violation of the law.

    3. After two verified and actionable violations of the law, the computer privileges of the employee may be suspended or terminated by the appropriate academic or administrative authority.

    11. In any case where doubt exists as to whether or not an online activity is copyright infringement, the Office of the General Counsel should be consulted. Special care must be taken to obtain copyright permission for any electronic reserve materials, as well as any course materials distributed by e-mail. The appropriate permission must be obtained prior to downloading and using syllabi from another institution.