Copyright Policy

Table of Contents

Introduction

Policies

References

Introduction

The copyright law, PL 94-533, specifically restricts the copying of copyrighted material to "fair use." This policy is intended to serve as a guide concerning the reproduction of library materials in Dakota Wesleyan University's McGovern Library in accordance with the Copyright Law of the United States (hereafter referred to as 17 U.S.C. (United States Code)).

Intent of Copyright

The U.S. Constitution grants Congress the power "to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries." The purpose of copyright is to further knowledge for the public good by providing authors with an economic incentive to publish their works. The intended beneficiary of copyright is the public; the author's gain is incidental except insofar as it functions as an incentive.

Public Domain/Duration of Copyright

1. If a work was first published (publicly distributed) more than 75 years ago, it is safe to assume it is in the public domain. The duration of copyright for works less than 75 years old is as follows:

a. If a work was first published before January 1, 1978, the first term of copyright endures for 28 years from the date it was originally secured.

b. If a work was first published before January 1, 1978, and its copyright was renewed, the renewal term endures for 75 years from the date copyright was originally secured.

c. If a work was created but not published or copyrighted prior to January 1, 1978, the term of the copyright is the life of the author plus 50 years, but at least until December 31, 2002. If a work was published before 2002, then the term will last until December 31, 2027. (Bruwelheide, p. 6)

2. If a work is a United States Government publication, copyright protection is generally not available (17 U.S.C. 105). Nevertheless, a limited number of U.S. government publications may be copyrighted and a copyright notice will appear in them. These publications are subject to McGovern Library's general copyright policy.

Fair Use

17 U.S.C. 107 states that copyrighted materials may be reproduced under special circumstances that constitute fair use. Among the factors to be included in the consideration of what constitutes fair use are:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit education purposes;

2. The nature of the copyrighted work;

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4. The effect of the use upon the potential market for or value of the copyrighted work.

As a non-profit, educational institution, Dakota Wesleyan University exists to disseminate knowledge through teaching. Therefore, reproductions made for university patrons can be assumed to be for non-commercial educational purposes. The library's collections contain scholarly materials intended for the academic community and as such are of a nature most appropriate to claims for fair use.

Liability of Library Employees

Unsupervised reproduction: Liability for copyright infringement may not be imposed on a library or its employees for unsupervised use of reproducing equipment located on its premises, provided that such equipment displays a notice that making copies may be subject to copyright law (17 U.S.C. 108f). McGovern Library currently displays and will continue to display the proper notices.

Policies

Reserves

McGovern Library follows the Model Policy Concerning College and University Photocopying for Classroom, Research, and Library Reserve Use developed by the American Library Association (1982). In accordance with that policy:

Interlibrary Loan

McGovern Library endeavors to provide maximum participation in the interlibrary loan process for both Dakota Wesleyan University users and for other libraries that ask us to provide materials to fill their users' requests. At the same time, McGovern Library attempts to follow the guidelines that were formulated by the National Commission on New Technological Uses of Copyrighted Works (commonly referred to as the CONTU guidelines) to address the problem of copying in aggregate quantities as it might apply to the interlibrary loan process. Though these guidelines are merely recommendations, which may not carry the force of law, McGovern Library adheres to CONTU, not only because the majority of ILL departments at other institutions abides by these guidelines, but also because the guidelines uphold the fair use doctrine. The guidelines allow McGovern Library to obtain five journal articles per title from the last five years free from royalty considerations, and do not place restrictions on articles over five years old. At present McGovern Library rarely exceeds the CONTU five-in-five rule, even though we obtain hundreds of articles for our users each year. In those cases when a given title comes under question for possible copyright violation, we have almost always been able to fill a user's needs through a combination of CONTU-covered articles with the spillover obtained through a commercial document supplier whose fee contains a royalty payment. Our joining the Copyright Clearance Center has provided one more avenue for obtaining needed journal articles without fear of copyright violation. Interlibrary loan operations consist of two distinct functions: Borrowing and Lending. The CONTU guidelines apply to both functions, but the responsibility for compliance falls primarily on the borrowing library.

Preservation

Libraries and archives are permitted to copy published or unpublished works for the purpose of preservation (17 U.S.C. 108). McGovern Library will observe the following conditions before reproducing library materials for preservation purposes:

Non-book Materials

McGovern Library follows the general copyright policy for all nonbook items except under the special circumstances noted below. 17 U.S.C. 108h "generally removes musical, graphic, and audiovisual works from the specific exemptions of section 108," but "it is important to recognize that the doctrine of fair use under section 107 remains fully applicable to the photocopying or other reproduction of such works...Nothing in section 108 impairs the applicability of the fair use doctrine to a wide variety of situations involving photocopying or other reproduction by a library of copyrighted material in its collections, where the user requests the reproduction for legitimate scholarly or research purposes." (U.S. Congress, House 1976, pp. 78-79)

A. Video/Film/Sound Recordings

B. Computer Software

The term computer software applies to all software for microcomputers, minicomputers, mainframes, or any other device, and includes the software documentation.

C. Off-Air Taping

In 1979 a committee of educational users and copyright proprietors agreed on the following guidelines that were published in the October 14, 1979 Congressional Record, pp. E4750-E4752:

Guidelines for Off-Air Recording of Broadcast Programming for Educational Purposes

The guidelines were developed to apply only to off-air recording by non-profit educational institutions.

1. A broadcast program may be recorded off-air simultaneously with broadcast transmission (including simultaneous cable re-transmission) and retained by a non-profit educational institution for a period not to exceed the first forty-five (45) consecutive calendar days after date of recording. Upon conclusion of such retention period, all off-air recordings must be erased or destroyed immediately. "Broadcast programs" are television programs transmitted by television stations for reception by the general public without charge.
2. Off-air recordings may be used once by individual teachers in the course of relevant teaching activities, and repeated once only when instructional reinforcement is necessary, in classrooms and similar places devoted to instruction within a single building, cluster or campus, as well as in the home of students receiving formalized home instruction during the first ten (10) consecutive school days in the forty-five (45) day calendar day retention period. "School days" are school session days - not counting weekends, holidays, vacations, examination periods, or other scheduled interruptions - within the forty-five (45) calendar day retention period.
3. Off-air recordings may be made only at the request of and used by individual teachers, and may not be regularly recorded in anticipation of requests. No broadcast program my be recorded off-air more than once at the request of the same teacher, regardless of the number of times the program may be broadcast.
4. 4. A limited number of copies may be reproduced from each off-air recording to meet the legitimate needs of teachers under these guidelines. Each such additional copy shall be subject to all provisions governing the original recording.
5. After the first ten (10) consecutive school days, off-air recordings may be used up to the end of the forty-five (45) calendar day retention period only for teacher evaluation purposes, i.e., to determine whether or not to include the broadcast program in the teaching curriculum, and may not be used in the recording institution for student exhibition or any other non-evaluation purpose without authorization.
6. Off-air recordings need not be used in their entirety, but the recorded programs may not be altered from their original content. Off-air recordings may not be physically or electronically combined or merged to constitute teaching anthologies or compilations.
7. All copies of off-air recordings must include the copyright notice on the broadcast program as recorded.
8. Educational institutions are expected to establish appropriate control procedures to maintain the integrity of these guidelines.

Special Collections & Manuscript Collections

Reproduction: Photocopying for specific educational research or reference is generally permitted. Photocopying may be limited or prohibited due to the condition of the material or for security reasons. The person requesting the reproduction assumes all responsibility for infraction of copyright, or any use exceeding fair use. Any commercial application of copyrighted materials is not fair use and always requires the consent of the holder of copyright. Permission to reproduce does not constitute permission to publish.

Publishing: Ownership of copyright does not automatically accompany ownership of the physical property. In general, McGovern Library does not hold copyright for the manuscript letters, diaries, artwork, photographs and audio/visual materials in its collections. It is solely the responsibility of the researcher to obtain the permission of the copyright owner before publishing any previously unpublished material. Permission to publish is required from both the owner of copyright and McGovern Library as owner of the physical property.

The researcher is solely responsible for the use made of any material secured from McGovern Library and any infringement of copyright. As part of the McGovern Library research application, the patron must sign an agreement to comply with this copyright policy.

University Archives

The University holds the copyright on all material published by the university. For purposes of research or reference, archival documents may be photocopied. Photocopying may be prohibited or limited should the physical condition of the material render it unfit for reproduction. Permission to publish archival material must be obtained from both the head of the academic or administrative unit from whence the material originated (as owner of copyright) and McGovern Library as owner of the physical property.

License Agreements

When a product acquired by McGovern Library is accompanied by a license agreement (particularly when signatures are required), it should be clearly understood that McGovern Library, in most instances, is not acquiring ownership of the material but is instead acquiring only the rights, as set forth in the terms of the license agreement, to "use" the product.

Terms set forth in license agreements are those of the publisher/distributor. McGovern Library is not required to accept these terms as stated but can instead negotiate mutually acceptable terms with the publisher/distributor. If a license agreement cannot be mutually agreed upon and McGovern Library cannot abide by the terms set forth, the only option is not to acquire the product. At present, the Director of Learning Resources is responsible for signing all license agreements that require a signature. The Acquisitions Department maintains copies of all signed license agreements.

References

Bowden, Bobby, et. al. The University of Georgia Libraries Copyright Policy. July 1994. June 7, 2001 (http://arl.cni.org/scomm/copyright/Georgia.html).

Bruwelheide, Janis H. The Copyright Primer for Librarians and Educators, 2nd ed. Chicago: American Library Association; Washington, D.C.: National Education Association, 1995.