The EDUCOM Code defines four broad classifications of software and applies different principles to each classification as follows:

1. COMMERCIAL SOFTWARE - software for which a license has been purchased allowing use. Minimally, the license will stipulate that the software is covered by copyright; one backup copy of the software may be made, although it cannot be used unless the original package fails or is destroyed; and modifications to the software are not allowed. Other restrictions may apply; read the license for specific limitations.

2. SHAREWARE - the copyright holder specifically allows you to make and distribute copies of the software, but demands payment if, after testing the software, you adopt it for use. In general, all license restrictions for commercial software apply. Selling software as shareware is a marketing decision and does not change the legal requirements with respect to copyright.

3. FREEWARE - the conditions for freeware are in direct contrast to generally understood copyright restrictions. Although the software is covered by copyright, the license allows for free use, modification, and distribution of the software as long as the purposes are not for profit and credit for the original work is given to the copyright holder.

4. PUBLIC DOMAIN - software for which the copyright holder has explicitly relinquished all rights to the software. It must be clearly marked as "Public Domain." Since March 1, 1989, all works assume copyright protection unless the "Public Domain" notification is stated.

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COMPUTER SCANNING

Computer scanning is the process of entering books, periodicals, art works, etc., into a computer by means of an optical scanner. Once a work is entered in the computer, it can be edited, manipulated, and reproduced. Scanning a text may be a fair use if it is used only for research (e.g., for textual analysis). Except for research uses, any other scanning of copyrighted texts requires the permission of the copyright holder. The Library will not put scanned text on electronic reserve without permission. Faculty should not scan text and mount it on their Web pages without permission unless the material is in the public domain. Art works should not be scanned without permission unless they are in the public domain. Scanning by students as a learning exercise may be permissible, but the copies should be promptly erased.

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Downloading involves copying a data transmission from a database utility to a user’s computer. This shortens the "connect time," which is the basis for most user fees. It also enables the searcher to clean up the data before printing a copy. Databases are copyrightable, and copying from a database to a computer appears to be a copyright infringement. The copyright owners generally accept temporary downloading as a fair use as long as only one report is printed and the data is erased after printing the report. The problem centers on long-term retention of data to reuse or to combine to create a local database. Long-term retention for any purpose requires a downloading license. These licenses are offered by most database utilities.

"Most commercial databases, whether available on-line electronically or on CD-ROM, include a copyright notice on the terminal screen and on printouts and downloaded files. Further, license agreements include a notice of copyright and usually refer to the fair use provisions of the copyright law. Virtually all of the basic license agreements forbid resale of data retrieved from on-line searching or any kind of commercial use without permission from the on-line vendor. Most on-line databases permit a disk copy to be made for a user, although some are beginning to restrict how many lines or entries can be downloaded. Under the statute, if it is permissible to print information from the database for the user, it is permissible to give the user a disk containing the information unless the license agreement specifically prohibits downloading. There generally seems to be some understanding on the part of vendors that users can download ‘insubstantial portions’ of the database, but there is little information as to what particular vendors believe constitutes an insubstantial portion of a database. Virtually all vendors say that the data is for personal use only and may not be transmitted or sold." [Reprinted from Libraries and Copyright: a Guide to Copyright Law in the 1990s, Laura N. Gasaway and Sarah K. Wiant (Special Libraries Association, © 1994).]

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It is not difficult to request permission to duplicate, adapt, or perform copyrighted materials. Well-established procedures are available (see Appendix A for a sample letter). Email has made asking for permission incredibly easy and is often the fastest and surest way of getting a response. A letter requesting permission may be expedited by (1) enclosing a self-addressed, stamped envelope, (2) including lines at the bottom of the letter for the copyright owner to date, sign, and grant/deny permission (see Appendix A), and (3) mailing two copies of the letter so that the copyright owner can keep one and mail the other signed copy back to you in the SASE.

It is important to maintain orderly records of permissions sought, denied, or granted. Faculty and staff should keep copies of permission letters "forever" to defend against claims of infringement. In some cases royalty or copyright fees must be paid to agencies such as Copyright Clearance Center, ASCAP, BMI, Motion Picture Licensing Corporation, etc.

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Keep in mind: the law provides for fair use; educators should exercise these rights. The law also guarantees owners’ right; educators, many of whom are also creators and owners, must respect these rights. Individuals who disregard copyright law put themselves legally and financially at risk. For more information about topics in this handbook, please refer to the appendices and the complete copyright law, which may be consulted in the Library.

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Material Permission Department

Hypothetical Book Company

500 East Avenue

Chicago, Illinois 60601

Dear Madam or Sir:

I am requesting permission to copy the following for continued use in my classes in future semesters:

Title: Learning Is Good, Fourth Edition

Copyright: Hypothetical Book Co., 1989, 1994

Author: Frank Jones

Material to be duplicated: Chapters 10, 11, and 14

Number of Copies: 50

Distribution: The material will be distributed to students in my classes, and they will pay only the cost of photocopying.

Type of reprint: Photocopy

Use: Supplementary teaching materials.

I have enclosed a self-addressed, stamped envelope for your convenience in replying to this request.

Sincerely,

Faculty Member

Permission is granted ____ denied ____ with these conditions (if any):

__________________________________________

^Signature(s)

______________________

^Date

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The purpose of the following guidelines is to state the minimum and not the maximum standards of educational fair use under Section 107 of H.R. 2223. The parties agree that the conditions determining the extent of permissible copying for educational purposes may change in the future; and conversely that in the future other types of copying not permitted under these guidelines may be permissible under revised guidelines.

Moreover, the following statement of guidelines is not intended to limit the types of copying permitted under the standards of fair use under judicial decision and which are stated in Section 107 of the Copyright Revision Bill. There may be instances in which copying which does not fall within the guidelines stated below may nonetheless be permitted under the criteria of fair use.

I. Single Copying for Teachers

A single copy may be made of any of the following by or for a teacher at his or her individual request for his or her scholarly research or use in teaching or preparation to teach a class:

A. A chapter from a book;

B. An article from a periodical or newspaper;

C. A short story, short essay or short poem, whether or not from a collective work;

D. A chart, graph, diagram, drawing, cartoon or picture from a book, periodicals, or newspaper.

II. Multiple Copies for Classroom Use

Multiple copies (not to exceed in any event more than one copy per pupil in a course) may be made by or for the teacher giving the course for classroom use or discussion, provided that:

A. The copying meets the tests of brevity and spontaneity as defined below; and

B. The copying meets the cumulative effect test as defined below; and

C. Each copy includes a notice of copyright.

(i) Poetry: a complete poem if less than 250 words and if printed on not more than two pages, or, from a longer poem, an excerpt of not more than 250 words.

(ii) Prose: a complete article, story or essay of less than 2,500 words, or an excerpt from any prose work of not more than 1,000 words or 10 percent of the work, whichever is less, but in any event a minimum of 500 words.

[The numerical limits stated in (i) and (ii) above may be expanded to permit the completion of an unfinished line of a poem or of an unfinished prose paragraph.]

(iii) Illustration: One chart, graph, diagram, drawing, cartoon or picture per book or per periodical issue.

(iv) "Special" works: Certain works in poetry, prose or in "poetic prose" which often combine language with illustrations and which are intended sometimes for children and at other times for a more general audience fall short of 2,500 words in their entirety. Paragraph (ii) above notwithstanding, such "special works" may not be reproduced in their entirety; however, an excerpt comprising not more than two of the published pages of a special work and containing not more than 10 percent of the words found in the text thereof may be reproduced.

(i) The copying is at the instance and inspiration of the individual teacher, and

(ii) The inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission.

(i) The copying of the material is for only one course in the school in which the copies are made.

(ii) Not more than one short poem, article, story, essay or two excerpts may be copied from the same author, nor more than three from the same collective work or periodicals volume during one class term.

(iii) There shall not be more than nine instances of such multiple copying for one course during one class term.

[The limitations stated in (ii) and (iii) above shall not apply to current news periodicals and newspapers and current news sections of other periodicals.]

III. Notwithstanding I and II above, the following shall be prohibited:

A. Copying shall not be used to create or to replace or substitute for anthologies, compilations or collective works. Such replacement or substitution may occur whether copies of various works or excerpts therefrom are accumulated or reproduced and used separately.

B. There shall be no copying of or from works intended to be "consumable" in the course of study or of teaching. These include workbooks, exercises, standardized tests and test booklets and answer sheets and like consumable material.

C. Copying shall not:

(a) substitute for the purchase of books, publishers’ reprints and periodicals;

(b) be directed by higher authority;

(c) be repeated with respect to the same item by the same teacher from term to term.

D. No charge shall be made to the student beyond the actual cost of the photocopying.

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LIBRARY RESERVES

A. American Library Association Reserve Guidelines

Although there are no congressional guidelines on library reserves, the American Library Association (ALA) has promulgated suggestions for libraries regarding photocopying for library reserve as a part of a model policy for colleges and universities. Since the reserve area is an extension of the classroom, the ALA views copying for reserve as permissible under conditions similar to the classroom guidelines, a position supported by the Association of American Law Schools but rejected by the Register of Copyrights. In particular, the Register maintains that since the guidelines require spontaneity, libraries may not place material on reserve for consecutive terms. Nonetheless, the reserve guidelines enjoy wide acceptance among libraries and presumably among publishers since they have not been litigated.

Single copies may be made for reserve use, the ALA believes, so long as the standards of the classroom guidelines are observed. When multiple copies are requested for reserve by a faculty member, the ALA makes the following recommendations.

1. The amount of material should be reasonable in relation to the total amount of material assigned for one term of a course. Matters such as the nature of the course, its subject matter and level should be taken into account. This statement makes it clear that library reserves are not to take the place of a purchased textbook or course pack on which royalties have been paid to the copyright holder. Materials photocopied for reserve generally are intended to supplement the other materials assigned for the course and not to serve in lieu of any other materials.

2. The number of copies should be reasonable in light of the number of students enrolled, the difficulty and timing of assignments, and the number of other courses which may assign the same materials. This likely means that the library rather than the faculty member should determine what number of copies is reasonable.

3. The material should contain a notice of copyright. If the article contains the notice of copyright on the first page of the article, the library need do nothing more than ensure that the notice is legible. If the notice is not printed on the article, then the library must write or stamp the notice.

4. The effect of photocopying the material should not be detrimental to the market for the work.

5. In general, the library should own at least one copy of the work. This does not mean that occasionally a library could not place on reserve a photocopy that belongs to a faculty member or one the library obtained through interlibrary loan. The library should not make a general practice of this, however, if it is to comply with the ALA model policy.

Some writers have said that a reasonable number of copies would be six, although other factors may permit more copies to be made, including the difficulty of the assignment, the number of students in the class and the length of time the students have to complete the assignment. If there is too little time for the professor to request permission from the copyright holder to make the copies, more copies may be placed on reserve than in the normal situation. A faculty member who is uncertain about placing copies on reserve should defer to the library’s policy or obtain the copyright holder’s permission.

A more puzzling part of the model policy is found in the materials that precede the requirements discussed above. As an introductory matter, the policy states that, in general, photocopying for reserve collections should follow the classroom guidelines. Then four specific requirements are listed: (a) the distribution of the same material does not occur every semester, (b) only one copy is distributed to each student, (c) the material contains a notice of copyright on the first page of the portion copied, and (d) students are not assessed any charge beyond the actual charge of making the copy. When one examines these four requirements, it is difficult to see their applicability to reserves.

Regarding requirement (b), for library reserve situations, the library would practically never reproduce a copy for each student in the class. In fact, the very reason for placing materials on reserve is that a few copies are made and not one per student. The last requirement concerning a charge to students for the copies is totally irrelevant to reserve practices. No library charges a fee for library reserve use! Thus, the cost per student limitation is unnecessary. The requirement concerning the inclusion of a notice of copyright on the photocopied material is important; in fact, it is so important that the requirement is repeated in the specific portion of the guidelines that relate to reserve copying.

Thus, the only requirement of the four that either has any relevance or is not repeated is (a), distribution of the same material does not occur every semester. Libraries have struggled with the meaning of this as it applies to reserve copying. Some libraries apply the requirement as if it were mandated by the law itself. Other libraries take a more liberal view and believe that when the model policy says that in general the classroom guidelines should be followed, that is what it means. Therefore, some libraries without written permission from the copyright owner. Libraries that follow this strict interpretation vary in whether they handle permission requests or whether they require faculty members who want the items placed on reserve to contact the copyright holder for permission. Some libraries go so far as to refuse a request to put an item on reserve the second semester without written permission from the owner which the faculty member must submit along with the request.

Among the libraries that apply a more liberal view of the policy, some encourage faculty to obtain permission to use photocopied material on reserve the second semester but stop short of an absolute requirement. Others take the tack of removing from reserve all materials each semester and returning them to the faculty member in the hopes that over time he will pare down the amount of material placed on reserve.

The course chosen by the library concerning this requirement may depend more on space management issues than on a literal reading of the guidelines. In other words, if the library is concerned about finite reserve space, it may decide to interpret strictly the meaning of the first general requirement. This relates not so much to copyright as to an important administrative issue for the library. Unfortunately, there is no general guidance on this issue. No library has been sued over its reserve collections nor have there been other interpretations from the ALA, the Copyright Office or others.

Some libraries have substituted electronic copies for traditional photocopy reserve collections and many others are considering doing so. Electronic reserves could solve space and staffing problems currently associated with reserve collections of photocopies of copyrighted articles, chapters, etc. Is it possible to comply with the ALA Reserve Guidelines and still develop and maintain an electronic reserve system? Perhaps, but the publisher community is very concerned about retention and repeated use of electronically stored copies. The ALA Reserve Guidelines state that the amount of material a faculty member requests be placed on reserve as well as the number of copies should be reasonable. In the photocopy reserve situation, the library determines what number of copies is reasonable based on the number of students in the class, level of the class, length of the assignment, length of time before the assigned material must be read and the like. For example, based on these factors, a college library might decide that eight copies on reserve are sufficient for a class of 25 students.

When one thinks of an electronic reserve collection, the usual situation envisioned is that materials would be scanned and stored on a central library computer which students could access from terminals in the library or even from remote locations. There are other ways this could be done. For example, the library could scan the items and put them on a floppy disk that is circulated just as hard copies are circulated. Another method is to put the scanned copies onto the central computer and then make a "copy" for each user by putting the copies into the electronic mailboxes for each student. For purposes of this chapter, however, assume that scanned copies are stored on a central computer in the library and that users access the material through terminals within the library and from remote locations.

Where libraries have initiated electronic reserves, there is no uniformity in what types of materials are available and whether the library considers the activity to be fair use or one on which royalties should be paid. Both Rice and Duke universities have experimental electronic reserve collections of copyrighted materials. Rice is paying royalties on every copy made (i.e., for every use) of material in the electronic reserve collection; Duke believes an electronic reserve collection is fair use and is not paying royalties. The University of Pittsburgh has created an electronic reserve collection that consists of heavily used but uncopyrighted works created by faculty such as reserve collections will be able to help answer some of the unanswered questions.

Electronic reserve collections present several copyright concerns. First, what is the number of copies that are made and does the number raise fair use concerns? Instead of any reserve collection photocopy that might be read by several students, one electronic copy is made includes whenever a copy is displayed on the screen in addition to when a copy is printed from the screen or downloaded to a disk. Second, will the library erase the scanned copy at the end of the class term? Third, is it necessary for the library to restrict access to the electronic copies to students enrolled in particular classes? If so, will it be done through access codes or some other mechanism? Fourth, must the library require the professor to obtain permission to place the item on reserve for subsequent terms? For the present, these and other considerations have meant that few libraries actually have created electronic reserve collections, although the numbers seem to be increasing. It is possible that because of these concerns electronic reserve collections are more closely akin to course packets than to traditional reserve collections. If they are analogous to course packets, then the Guidelines on Multiple Copying for Classroom Use must be met and royalties paid for copying in excess of fair use. The question then for the calculation of royalties becomes how many copies were made. For the library, an important question follow: who pays the royalty, the library or the student? Since the Copyright Clearance Center has not been authorized to collect royalties for electronic copies, if royalties are due, they must be paid directly to the publisher or copyright holder. This alone may discourage some libraries from converting traditional reserve collections to electronic format.

Another important concern arises under section 108(g) which states that the exemptions for the library copying extend to isolated and unrelated reproduction of a single copy. This applies to the reproduction of the same material on separate occasions but does not extend where the library engages in related or concrete reproduction and distribution of multiple copies of the same material, on one occasion or over a period of time. Section 108(g) applies whether the multiple copying is by aggregate use by one or more individuals or for separate use by the individual members of a group. The publisher community apparently does not object to reserve collections that carefully adhere to the ALA guidelines for photocopies as evidenced by the lack of complaints, articles challenging the guidelines, or litigation. Why the same acquiescence is not present for electronic reserve collections appears somewhat inconsistent to many in the library community.

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As part of the effort to revise the copyright laws, the U.S. National Commission on New Technological Uses of Copyrighted Works (CONTU) was created to provide recommendations on copyright law and procedure. The guidelines in the Commission’s 1978 final report address section §108(g)(2) and attempt to clarify what was meant by "systematic reproduction." Libraries, in general, follow these guidelines:¹

1. As used in the proviso of subsection 108(g)(2), the words "such aggregated quantities as to substitute for a subscription to or purchase of such work" shall mean:

(a) with respect to any given periodical (as opposed to any given issue of a periodical), filled requests of a library or archives (a "requesting entity") within any calendar year for a total of six or more copies of an article or articles published within five years prior to the date of the request. These guidelines specifically shall not apply, directly or indirectly, to any request of a requesting entity for a copy or copies of an article or articles published in any issue of a periodical, the publication date of which is more than five years prior to the date when the request is made. These guidelines do not define the meaning, with respect to such a request, of "such aggregate quantities as to substitute for a subscription to [such periodical]."

(b) with respect to any other material described in subsection 108(d) (including fiction and poetry), filled requests of a requesting entity within any calendar year for a total of six or more copies or phonorecords of or from any given work (including a collective work) during the entire period when such material shall be protected by copyright.

2. In the event that a requesting entity:

(a) shall have in force or shall have entered an order for a subscription to a periodical, or

(b) has within its collection, or shall have entered an order for, a copy or phonorecord of any other copyrighted work, material from either category of which it desires to obtain by copy from another library or archives (the "supplying entity"), because the material to be copied is not reasonably available for use by the requesting entity itself, then the fulfillment of such request shall be treated as though the requesting entity made such copy from its own collection. A library or archives may request a copy or phonorecord from a supplying entity only under those circumstances where the requesting entity would have been able, under the provisions of section 108, to supply such copy from materials in its own collection.

3. No request for a copy or phonorecord of any material to which these guidelines apply may be fulfilled by the supplying entity unless such request is accompanied by a representation by the requesting entity that the request was made in conformity with these guidelines.

4. The requesting entity shall maintain records of all requests made by it for copies or phonorecords of any materials to which these guidelines apply and shall maintain records of the fulfillment of such requests, which records shall be retained until the end of third complete calendar year after the end of the calendar year in which the respective request shall have been made.

5. As part of the review provided for in subsection 108(i), these guidelines shall be reviewed not later than five years from the effective date of this bill.

6.  

¹ Reprinted from Virginia Boucher, Interlibrary Loan Practices Handbook, 2^nd ed. (Chicago and London: American Library Association, © 1997).

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FAIR USE GUIDELINES FOR EDUCATIONAL MULTIMEDIA

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

Fair use is a legal principle that defines the limitations of the exclusive rights** 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 educational 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*** 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 guidelines 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 participants 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 educational and scholarly uses of educational multimedia projects.

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.

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* These Guidelines shall not be read to supersede other preexisting education fair use guidelines that deal with the Copyright Act of 1976.

** See Section 106 of the Copyright Act.

*** The Copyright Act of 1976, as amended, is codified at 17 U.S.C. Sec. 101 et seq. guidelines and clearly indicate the variety of interest groups involved, both from the standpoint of the users of copyrighted material and also from the standpoint of the copyright owners.

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.

(Certain basic terms used throughout these guidelines 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 the 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 or 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.

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.

Students may incorporate portions of lawfully acquired copyrighted works when producing their own educational multimedia projects for a specific course.

Educators may incorporate portions of lawfully acquired copyrighted works when producing their own educational multimedia programs for their own teaching tools in support of curriculum-based instructional activities at educational institutions.

Uses of educational multimedia projects created under these guidelines are subject to the Time, Portion, Copying and Distribution Limitations listed in Section 4.

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.

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 used 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 multimedia project.

Educators may perform or display their own multimedia projects created under Section 2 of these guidelines in presentations to their peers, for example, at workshops and conferences.

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.

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.

Educators may use their educational multimedia projects 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.

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 limits 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.

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 a multimedia project created under Section 2 of these guidelines.

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 a 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.

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.

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.

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 column meet on a spreadsheet.

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 than two used 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 used 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 Section 3.1 for students.

Educators and students must seek individual permissions (licenses) before using copyrighted works in educational multimedia projects for commercial reproduction and distribution.

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.

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.

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.

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 the 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 credit section of the educational multimedia project 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 reasonably 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 displayed without such information being simultaneously displayed on the screen. In such cases, this information should be linked to the image in a manner compatible with such instructional objectives.

Educators and students are advised that they must include on the opening screen of their multimedia program 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 multimedia fair use guidelines and are restricted from further 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 dissemination, 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.

Educators and students may make alterations in the portions of the copyrighted works they incorporate as part of an educational multimedia project only if the alterations support specific instructional objectives. Educators and students are advised to note that alterations have been made.

Educators and students should be aware that reproduction or decompilation of copyrighted computer programs and portions thereof, such as the transfer of underlying code or control mechanisms, even for educational uses, is outside the scope of the guidelines.

Educators and students should determine whether specific copyrighted works or other data information are subject to a license or contract. Fair use and these guidelines shall not preempt or supersede licenses and contractual obligations.

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

2. A broadcast program may be recorded off-air simultaneously with broadcast transmission (including simultaneous cable retransmission) and retained by a nonprofit 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.

3. 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 homes 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.

4. 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 may 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.

5. 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.

6. 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 purposes without authorization.

7. 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.

8. All copies of off-air recordings must include the copyright notice on the broadcast program as recorded.

9. Educational institutions are expected to establish appropriate control procedures to maintain the integrity of these guidelines.