TABLE OF CONTENTS
1. Introduction
2. Preparation of Educational Multimedia Projects Under These Guidelines
3. Permitted Educational Uses for Multimedia Projects Under These Guidelines
4. Limitations
5. Examples of When Permission is Required
6. Important Reminders
Appendix A: Organizations Endorsing These Guidelines
Appendix B: Organizations Participating
in Development of These Guidelines
1. INTRODUCTION
1.1 Preamble
Fair use is a legal principle that
provides certain limitations on the exclusive rights 2 of
copyright holders. The purpose of these guidelines is to provide guidance on the
application of fair use principles by educators, scholars and students who
develop multimedia projects using portions of copyrighted works under fair use
rather than by seeking authorization for non-commercial educa-tional uses. These
guidelines apply only to fair use in the context of copyright and to no other
rights.
There is no simple test to determine
what is fair use. Section 107 of the Copyright Act 3 sets
forth the four fair use factors which should be considered in each instance,
based on particular facts of a given case, to determine whether a use is a "fair
use": (1) the purpose and character of use, including whether such use is of a
commercial nature or is for nonprofit educational 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.
While only the courts can
authoritatively determine whether a particular use is fair use, these guide-
lines represent the endorsers' consensus of conditions under which fair use
should generally apply and examples of when permission is required. Uses that
exceed these guidelines may or may not be fair use. The endorsers also agree
that the more one exceeds these guidelines, the greater the risk that fair use
does not apply.
The limitations and conditions set
forth in these guidelines do not apply to works in the public domain -- such as
U.S. Government works or works on which copyright has expired for which there
are no copyright restrictions -- or to works for which the individual or
institution has obtained permission for the particular use. Also, license
agreements may govern the uses of some works and users should refer to the
applicable license terms for guidance.
The participants who developed these
guidelines met for an extended period of time and the result represents their
collective understanding in this complex area. Because digital technology is in
a dynamic phase, there may come a time when it is necessary to review the
guidelines. Nothing in these guidelines shall be construed to apply to the fair
use privilege in any context outside of educa-tional and scholarly uses of
educational multimedia projects4. These guidelines do not
cover nonedu-cational or commercial digitization or use at any time, even by
non-profit educational institutions. These guidelines are not intended to cover
fair use of copyrighted works in other educational contexts such as educational
multimedia projects,4 distance education, or electronic reserves,]
which may be addressed in other fair use guidelines.
This Preamble is an integral part of
these guidelines and should be included whenever the guidelines are reprinted or
adopted by organizations and educational institutions. Users are encouraged to
reproduce and distribute these guidelines freely without permission; no
copyright protection of these guidelines is claimed by any person or entity.
1.2 Background
These guidelines clarify the
application of fair use of copyrighted works as teaching methods are adapted to
new learning environments. Educators have traditionally brought copyrighted
books, videos, slides, sound recordings and other media into the classroom,
along with accompanying projection and playback equipment. Multimedia creators
integrated these individual instructional resources with their own original
works in a meaningful way, providing compact educational tools that allow great
flexibility in teaching and learning. Material is stored so that it may be
retrieved in a nonlinear fashion, depending on the needs or interests of
learners. Educators can use multimedia projects to respond spontaneously to
students' questions by referring quickly to relevant portions. In addition,
students can use multimedia projects to pursue independent study according to
their needs or at a pace appropriate to their capabilities. Educators and
students want guidance about the application of fair use principles when
creating their own multimedia projects to meet specific instructional
objectives.
1.3 Applicability of These Guidelines
(Certain basic terms are identified
in bold and defined in this section.)
These guidelines apply to the use,
without permission, of portions of lawfully acquired copyrighted works in
educational multimedia projects which are created by educators or students as
part of a systematic learning activity by nonprofit educational institutions.
Educational multimedia projects created under these guidelines incorporate
students' or educators' original material, such as course notes or commentary,
together with various copyrighted media formats including but not limited to,
motion media, music, text material, graphics, illustrations, photographs and
digital software which are combined into an integrated presentation. Educational
institutions are defined as nonprofit organizations whose primary focus is
supporting research and instructional activities of educators and students for
noncommercial purposes.
For the purposes of these guidelines,
educators include faculty, teachers, instructors and others who engage in
scholarly, research and instructional activities for educational institutions.
The copyrighted works used under these guidelines are lawfully acquired if
obtained by the institution or individual through lawful means such as purchase,
gift or license agreement but not pirated copies. Educational multimedia
projects which incorporate portions of copyrighted works under these guidelines
may be used only for educational purposes in systematic learning activities
including use in connection with non-commercial curriculum-based learning and
teaching activities by educators to students enrolled in courses at nonprofit
educational institutions or otherwise permitted under Section 3. While these
guidelines refer to the creation and use of educational multimedia projects,
readers are advised that in some instances other fair use guidelines such as
those for off-air taping may be relevant.
2. PREPARATION OF EDUCATIONAL MULTIMEDIA PROJECTS USING PORTIONS OF COPYRIGHTED WORKS
These uses are subject to the Portion
Limitations listed in Section 4. They should include proper attribution and
citation as defined in Sections 6.2.
2.1 By Students:
Students may incorporate portions of
lawfully acquired copyrighted works when producing their own educational
multimedia projects for a specific course.
2.2 By Educators for Curriculum-Based
Instruction:
Educators may incorporate portions of
lawfully acquired copyrighted works when producing their own educational
multimedia projects for their own teaching tools in support of curriculum-based
instructional activities at educational institutions.
3. PERMITTED USES OF EDUCATIONAL
MULTIMEDIA PROJECTS CREATED UNDER THESE GUIDELINES
Uses of educational multimedia projects
created under these guidelines are subject to the Time, Portion, Copying and
Distribution Limitations listed in Section 4.
3.1 Student Use:
Students may perform and display their
own educational multimedia projects created under Section 2 of these guidelines
for educational uses in the course for which they were created and may use them
in their own portfolios as examples of their academic work for later personal
uses such as job and graduate school interviews.
3.2 Educator Use for Curriculum-Based
Instruction:
Educators may perform and display their
own educational multimedia projects created under Section 2 for curriculum-based
instruction to students in the following situations:
3.2.1 for face-to-face instruction,
3.2.2 assigned to students for directed
self-study,
3.2.3 for remote instruction to
students enrolled in curriculum-based courses and located at remote sites,
provided over the educational institution's secure electronic network in
real-time, or for after class review or directed self-study, provided there are
technological limitations on access to the network and educational multimedia
project (such as a password or PIN) and provided further that the technology
prevents the making of copies of copyrighted material.
If the educational institution's
network or technology used to access the educational multimedia project created
under Section 2 of these guidelines cannot prevent duplication of copyrighted
material, students or educators may use the multimedia educational projects over
an otherwise secure network for a period of only 15 days after its initial
real-time remote use in the course of instruction or 15 days after its
assignment for directed self-study. After that period, one of the two use copies
of the educational multimedia project may be placed on reserve in a learning
resource center, library or similar facility for on-site use by students
enrolled in the course. Students shall be advised that they are not permitted to
make their own copies of the educational multimedia project.
3.3 Educator Use for Peer Conferences:
Educators may perform or display their
own educational multimedia projects created under Section 2 of these guidelines
in presentations to their peers, for example, at workshops and conferences.
3.4 Educator Use for Professional
Portfolio
Educators may retain educational
multimedia projects created under Section 2 of these guidelines in their
personal portfolios for later personal uses such as tenure review or job
interviews.
4. LIMITATIONS - TIME, PORTION, COPYING
AND DISTRIBUTION
The preparation of educational
multimedia projects incorporating copyrighted works under Section 2, and the use
of such projects under Section 3, are subject to the limitations noted below.
4.1 Time Limitations
Educators may use their educational
multimedia projects created for educational purposes under Section 2 of these
guidelines for teaching courses, for a period of up to two years after the first
instructional use with a class. Use beyond that time period, even for
educational purposes, requires permission for each copyrighted portion
incorporated in the production. Students may use their educational multimedia
projects as noted in Section 3.1.
4.2 Portion Limitations
Portion limitations mean the amount of
a copyrighted work that can reasonably be used in educational multimedia
projects under these guidelines regardless of the original medium from which the
copyrighted works are taken. In the aggregate means the total amount of
copyrighted material from a single copyrighted work that is permitted to be used
in an educational multimedia project without permission under these guidelines.
These limitations apply cumulatively to each educator's or student's multimedia
project(s) for the same academic semester, cycle or term. All students should be
instructed about the reasons for copyright protection and the need to follow
these guidelines. It is understood, however, that students in kindergarten
through grade six may not be able to adhere rigidly to the portion limitations
in this section in their independent development of educational multimedia
projects. In any event, each such project retained under Sections 3.1 and 4.3
should comply with the portion limitations in this section.
4.2.1 Motion Media
Up to 10% or 3 minutes, whichever is less, in the aggregate of a copyrighted motion media work may be reproduced or otherwise incorporated as part of an educational multimedia project created under Section 2 of these guidelines.
4.2.2 Text Material
Up to 10% or 1000 words, whichever is
less, in the aggregate of a copyrighted work consisting of text material may be
reproduced or otherwise incorporated as part of an educational multimedia
project created under Section 2 of these guidelines. An entire poem of less than
250 words may be used, but no more than three poems by one poet, or five poems
by different poets from any anthology may be used. For poems of greater length,
250 words may be used but no more than three excerpts by a poet, or five
excerpts by different poets from a single anthology may be used.
4.2.3 Music, Lyrics, and Music Video
Up to 10%, but in no event more than 30
seconds, of the music and lyrics from an individual musical work (or in the
aggregate of extracts from an individual work), whether the musical work is
embodied in copies, or audio or audiovisual works, may be reproduced or
otherwise incorporated as a part of a multimedia project created under Section
2. Any alterations to a musical work shall not change the basic melody or the
fundamental character of the work.
4.2.4 Illustrations and Photographs
The reproduction or incorporation of
photographs and illustrations is more difficult to define with regard to fair
use because fair use usually precludes the use of an entire work. Under these
guidelines a photograph or illustration may be used in its entirety but no more
than 5 images by an artist or photographer may be reproduced or otherwise
incorporated as part of an educational multimedia project created under Section
2. When using photographs and illustrations from a published collective work,
not more than 10% or 15 images, whichever is less, may be reproduced or
otherwise incorporated as part of an educational multimedia project created
under Section 2.
4.2.5 Numerical Data Sets
Up to 10% or 2500 fields or cell
entries, whichever is less, from a copyrighted database or data table may be
reproduced or otherwise incorporated as part of an educational multimedia
project created under Section 2 of these guidelines. A field entry is defined as
a specific item of information, such as a name or Social Security number, in a
record of a database file. A cell entry is defined as the intersection where a
row and a column meet on a spreadsheet.
4.3 Copying and Distribution
Limitations
Only a limited number of copies,
including the original, may be made of an educator's educational multimedia
project. For all of the uses permitted by Section 3, there may be no more that
two use copies only one of which may be placed on reserve as described in
Section 3.2.3.
An additional copy may be made for
preservation purposes but may only be used or copied to replace a use copy that
has been lost, stolen, or damaged. In the case of a jointly created educational
multimedia project, each principal creator may retain one copy but only for the
purposes described in Sections 3.3 and 3.4 for educators and in Section 3.1 for
students.
5. EXAMPLES OF WHEN PERMISSION IS
REQUIRED
5.1 Using Multimedia Projects for
Non-Educational or Commercial Purposes
Educators and students must seek
individual permissions (licenses) before using copyrighted works in educational
multimedia projects for commercial reproduction and distribution.
5.2 Duplication of Multimedia Projects
Beyond Limitations Listed in These Guidelines
Even for educational uses, educators
and students must seek individual permissions for all copyrighted works
incorporated in their personally created educational multimedia projects before
replicating or distributing beyond the limitations listed in Section 4.3.
5.3 Distribution of Multimedia Projects
Beyond Limitations Listed in These Guidelines
Educators and students may not use
their personally created educational multimedia projects over electronic
networks, except for uses as described in Section 3.2.3, without obtaining
permissions for all copyrighted works incorporated in the program.
6. IMPORTANT REMINDERS
6.1 Caution in Downloading Material
from the Internet
Educators and students are advised to
exercise caution in using digital material downloaded from the Internet in
producing their own educational multimedia projects, because there is a mix of
works protected by copyright and works in the public domain on the network.
Access to works on the Internet does not automatically mean that these can be
reproduced and reused without permission or royalty payment and, furthermore,
some copyrighted works may have been posted to the Internet without
authorization of the copyright holder.
6.2 Attribution and Acknowledgement
Educators and students are reminded to
credit the sources and display the copyright notice and copyright ownership
information if this is shown in the original source, for all works incorporated
as part of educational multimedia projects prepared by educators and students,
including those prepared under fair use. 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 ownership information includes the copyright notice
(©, year of first publication and name of the copyright holder).
The credit and copyright notice
information may be combined and shown in a separate section of the educational
multimedia project (e.g., credit section) except for images incorporated into
the project for the uses described in Section 3.2.3. In such cases, the
copyright notice and the name of the creator of the image must be incorporated
into the image when, and to the extent, such information is reason-ably
available; credit and copyright notice information is considered incorporated"
if it is attached to the image file and appears on the screen when the image is
viewed. In those cases when displaying source credits and copyright ownership
information on the screen with the image would be mutually exclusive with an
instructional objective (e.g. during examinations in which the source credits
and/or copyright information would be relevant to the examination questions),
those images may be display-ed without such information being simultaneously
displayed on the screen. In such cases, this infor-mation should be linked to
the image in a manner compatible with such instructional objectives.
6.3 Notice of Use Restrictions
Educators and students are advised that
they must include on the opening screen of their multimedia project and any
accompanying print material a notice that certain materials are included under
the fair use exemption of the U.S. Copyright Law and have been prepared
according to the educational multi-media fair use guidelines and are restricted
from further use.
6.4 Future Uses Beyond Fair Use
Educators and students are advised to
note that if there is a possibility that their own educational multimedia
project incorporating copyrighted works under fair use could later result in
broader dis-semination, whether or not as commercial product, it is strongly
recommended that they take steps to obtain permissions during the development
process for all copyrighted portions rather than waiting until after completion
of the project.
6.5 Integrity of Copyrighted Works:
Alterations
Educators and students may make
alterations in the portions of the copyrighted works they incor-porate as part
of an educational multimedia project only if the alterations support specific
instruc-tional objectives. Educators and students are advised to note that
alterations have been made.
6.6 Reproduction or Decompilation of
Copyrighted Computer Programs
Educators and students should be aware
that reproduction or decompilation of copyrighted computer programs and portions
thereof, for example the transfer of underlying code or control mechanisms, even
for educational uses, are outside the scope of these guidelines.
6.7 Licenses and Contracts
Educators and students should determine
whether specific copyrighted works, or other data or infor-mation are subject to
a license or contract. Fair use and these guidelines shall not preempt or super-sede
licenses and contractual obligations.
1 These Guidelines shall not be read to supersede other preexisting educational use guidelines that deal with the 1976 Copyright Act.
2 See Section 106 of the Copyright Act.
3 The Copyright Act of 1976, as amended, is codified at 17 U.S.C. a 101 et seq.
4 In general, multimedia projects are stand-alone, interactive programs incorporating both original and pre- existing copyrighted works in various media formats, while visual image archives are databases of individual visual images from which images intended for educational uses may be selected for display.