2531A - COPYRIGHTED WORKS

West Clermont Local School District

Administrative Guidelines

2531A - COPYRIGHTED WORKS

The United States Copyright Laws provide a basis for a civil action if an owner’s copyrighted work is infringed by either direct or indirect copying that results in an identical or similar version of the work. Examples of works that are entitled to copyright protection are:

	A.	literary works;

	B.	musical works, including any accompanying words;

	C.	dramatic works, including any accompanying music;

	D.	pantomimes and choreographic works;

	E.	pictorial, graphic, and sculptural works;

	F.	motion pictures and other audiovisual works;

	G.	sound recordings;

	H.	architectural works.

The law affects classroom practices, and therefore educators must examine:

	A.	what they copy;

	B.	how much they copy;

	C.	the purposes for which they copy;

	D.	the conditions under which they copy.

Although a particular work may be copyright protected, the Fair Use Doctrine provides exceptions whereby a reproduction is not an infringement. In determining whether a particular use is a fair use, the following factors are considered:

the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;

	B.	the nature of the copyrighted work;

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

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

Many factors, therefore, impact whether a particular use of a copyrighted work is a fair use. The following guidelines offer guidance as to what may or may not be considered a fair use. While these guidelines are not law, i.e., they are not definitive, they do reflect prevailing legal thought.

Books and Periodicals

A.	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:

	1.	A chapter from a book;

	2.	An article from a periodical or newspaper;

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

	4.	A chart, graph, diagram, drawing, cartoon or picture from a book, periodical, or newspaper.

B.	Multiple Copies for Classroom

	Multiple copies (not to exceed in any event more than one (1) copy per student in a course) may be made by or for the teacher giving the course for classroom use or discussion; provided that:

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

	2.	Meets the cumulative effect test as defined below;

	3.	Each copy includes a notice of copyright.

C.	Definitions

	1.	Brevity

		a.	Poetry: (1) A complete poem if less than 250 words and if printed on not more than two (2) pages; (2) from a longer poem, an excerpt of not more than 250 words.

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

			[Each of the numerical limits stated in "a." and "b." above may be expanded to permit the completion of an unfinished line of a poem or of an unfinished prose paragraph.]

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

		d.	"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 "b" above notwithstanding such "special works" may not be reproduced in their entirety; however, an excerpt comprising not more than two (2) of the published pages of such special work and containing not more than ten percent (10%) of the works found in the text thereof, may be reproduced.

	2.	Spontaneity

		a.	The copying is at the instance and inspiration of the individual teacher.


	b.	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.

3.	Cumulative Effect

	a.	The copying of the material is for only one (1) course in the school in which the copies are made.

	b.	Not more than one short poem, article, story, essay or two (2) excerpts may be copies from the same author, nor more than three (3) from the same collective work or periodical volume during one (1) class term.

	c.	There shall not be more than nine (9) instances of such multiple copying for one (1) course during one (1) class term.

		[The limitations stated in "b" and "c" above shall not apply to current news periodicals and newspapers and current news sections of other periodicals.]

Prohibitions as to the Two (2) Sections Presented Above: "Single Copy for Teachers" and "Multiple Copies for Classroom"

Notwithstanding any of the 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 not 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:

	1.	substitute for the purchase of books, publishers' reprints or periodicals;

	2.	be directed by higher authority;

	3.	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.

Televised Material

	A.	In General

		This section applies to a class viewing of an educational audiovisual work that is either broadcast at a particular time or available on a recorded videotape that is not licensed for public performance by the educational institution.

	B.	Viewing of A Live Television Broadcast During Class Time

		If the audiovisual work is a broadcast television program and the timing of the broadcast corresponds to the meeting time of the class, the teacher is permitted to arrange for a television to be made available so that the class may view the televised program simultaneous with the broadcast only if no admission is charged directly or indirectly to view the work.


C.	Videotapes (Guidelines II C. – II. F. were created by ALA, American Libraries, February 1986)

	Libraries purchase a wide range of educational and entertainment videotapes for in-library use and for lending to patrons. Since ownership of a physical object is different from ownership of the copyright therein, guidelines are necessary to define what libraries can do with the videotapes they own without infringing the copyrights they do not own. If a particular use would be an infringement, permission can always be sought from the copyright owner.

	1.	In-classroom Use

		In-classroom performance of a copyrighted videotape is permissible under the following conditions:

		a.	The performance must be by instructors (including guest lecturers) or by students;

		b.	the performance is in connection with face-to-face teaching activities;

		c.	the entire audience is involved in the teaching activity;

		d.	the entire audience is in the same room or same general area;

		e.	the teaching activities are conducted by a non-profit education institution;

		f.	the performance takes place in a classroom or similar place devoted to instruction, such as a school library, gym, auditorium or workshop;

		g.	the videotape is lawfully made; the person responsible had no reason to believe that the videotape was unlawfully made.


2.	In-Library Use in Public Libraries

	a.	Most performances of a videotape in a public room as part of an entertainment or cultural program, whether a fee is charged or not, would be infringing and a performance license is required from the copyright owner.

	b.	To the extent a videotape is used in an educational program conducted in a library's public room, the performance will not be infringing if the requirements for classroom use are met (See Televised Material C.1.).

	c.	Libraries which allow groups to use or rent their public meeting rooms should, as part of their rental agreement, require the group to warrant that it will secure all necessary performance licenses and indemnify the library for any failure on their part to do so.

	d.	If patrons are allowed to view videotapes on library-owned equipment, they should be limited to private performances, i.e., one (1) person, or no more than one (1) family, at a time.

	e.	User charges for private viewings should be nominal and directly related to the cost of maintenance of the videotape.

	f.	Even if a videotape is labeled "For Home Use only," private viewing in the library should be considered to be authorized by the vendor's sale to the library with imputed knowledge of the library's intended use of the videotape.


	g.	Notices may be posted on video recorders or players used in the library to educate and warn patrons about the existence of the copyright laws, such as:

		MANY VIDEOTAPED MATERIALS ARE PROTECTED BY COPYRIGHT. 17 U.S.C. 101. UNAUTHORIZED COPYING MAY BE PROHIBITED BY LAW.

3.	Loan of Videotapes

	a.	Videotapes labeled "For Home Use Only" may be loaned to patrons for their personal use. They should not knowingly be loaned to groups for public performances.

	b.	Copyright notice as it appears on the label of a videotape should not be obscured.

	c.	Nominal user fees may be charged.

	d.	If a patron inquires about a planned performance of a videotape, s/he should be informed that only private uses of it are lawful.

	e.	Video recorders may be loaned to a patron without fear of liability even if the patron uses the recorder to infringe a copyright. However, it may be a good idea to post notices on equipment that may be used for copying (even if an additional machine would be required) to assist copyright owners in preventing unauthorized reproduction. (See Televised Material C.2.g.)

4.	Duplication of Videotapes

	Under limited circumstances libraries may dupe a videotape or a part thereof, but the rules of 108 of the Copyright Revision Act of 1976 which librarians routinely utilize with respect to photocopying, apply to the reproduction.

Music

A.	Permissible Uses

	1.	Emergency copying to replace purchased copies which for any reason are not available for an imminent performance provided purchased replacement copies shall be substituted in due course.

	2.	For academic purposes other than performance, single or multiple copies of excerpts of works may be made, provided that the excerpts do not comprise a part of the whole which would constitute a performable unit such as a section, movement or aria, but in no case more than 10 percent (10%) of the whole work. The number of copies shall not exceed one (1) copy per student.

	3.	Printed copies that have been purchased may be edited or simplified provided that the fundamental character of the work is not distorted or the lyrics, if any, altered or lyrics added if none exist.

	4.	A single copy of recordings of performances by students may be made for evaluation or rehearsal purposes and may be retained by the educational institution or individual teacher.

	5.	A single copy of a sound recording (such as a tape, disc, or cassette) of copyrighted music may be made from sound recordings owned by an educational institution or an individual teacher for the purpose of constructing aural exercises or examinations and may be retained by the educational institution or individual teacher. (This pertains only to the copyright of the music itself and not to any copyright that may exist in the sound recording.)

B.	Prohibitions

	1.	Copying to create or replace or substitute for anthologies, compilations or collective works.


		2.	Copying of or from works intended to be "consumable" in the course of study or of teaching such as workbooks, exercises, standardized tests and answer sheets and like material.

		3.	Copying for the purpose of performance, except as in Music A.1. above.

		4.	Copying for the purpose of substituting for the purchase of music, except as in Music A.1. and Music A.2. above.

		5.	Copying without inclusion of the copyright notice that appears on the printed copy.

Computer Programs

A.	Purchase Conditions Generally (Guidelines Computer Programs A-D were created by ALS, American Libraries, February 1986

	Most computer software purports to be licensed rather than sold. Frequently the package containing the software is wrapped in clear plastic through which legends similar to the following appear:

	You should carefully read the following terms and conditions before opening this diskette package. Opening this diskette package indicates your acceptance of these terms and conditions. If you do not agree with them you should promptly return the package unopened and your money will be refunded.

		OR

	Read this agreement carefully. Use of this product constitutes your acceptance of the terms and conditions of this agreement.

		OR

	This program is licensed on the condition that you agree to the terms and conditions of this license agreement. If you do not agree to them, return the package with the diskette still sealed and your purchase price will be refunded. Opening this diskette package indicates your acceptance of these terms and conditions.

	In the absence of authority to the contrary, one should assume that such licenses are in fact binding contracts. Therefore by opening and using the software the library or classroom may become contractually bound by the terms of the agreement wholly apart from the rights granted the copyright owner under the copyright laws.

	Following such legends are the terms and conditions of the license agreement. The terms vary greatly between software producers and sometimes between programs produced by the same producer. Many explicitly prohibit rental or lending; some limit the program to use on one (1) identified computer or to one (1) user's personal use.

B.	Avoiding License Restrictions

	Loans of software may violate the standard license terms imposed by the copyright owner. To avoid the inconsistencies between sale to a library and the standard license restriction, libraries should note on their purchase orders the intended use of software meant to circulate. Such a legend should read:

	PURCHASE IS ORDERED FOR LIBRARY CIRCULATION AND PATRON USE

	Then, if the order is filled, the library is in a good position to argue that its terms, rather than the standard license restrictions, apply.

C.	Archival Copies

	1.	Libraries may lawfully make one (1) archival copy of a copyrighted program under the following conditions:

		a.	one (1) copy is made;

		b.	the archival copy is stored;

		c.	if possession of the original ceases to be lawful, the archival copy must be destroyed or transferred along with the original program;

		d.	copyright notice should appear on the copy.

	2.	The original may be kept for archival purposes and the "archival copy" circulated. Only one (1) copy -- either the original or the archival -- may be used or circulated at any given time.

	3.	If the circulating copy is destroyed, another "archival" copy may be made.

	4.	If the circulating copy is stolen, the copyright owner should be consulted before circulating or using the "archival" copy.

D.	In-library and In-classroom Use

	1.	License restrictions, if any, should be observed.

	2.	If only one (1) program is owned under license, ordinarily it may only be used on one (1) machine at a time.

	3.	Most licenses do not permit a single program to be loaded into a computer which can be accessed by several different terminals or into several computers for simultaneous use.

	4.	If the machine is capable of being used by a patron to make a copy of a program, a warning should be posted on the machine, such as:

		MANY COMPUTER PROGRAMS ARE PROTECTED BY COPYRIGHT. 17 U.S.C. 101. UNAUTHORIZED COPYING MAY BE PROHIBITED BY LAW.

E.	Lending Copies of Computer Programs to Library Patrons

	General Rule: Provided that the required warning is placed on lawfully acquired copies of computer programs, they may be lent by nonprofit libraries to patrons for nonprofit purposes under Title 17 Section 109(b) of the Copyright Act. In looking at these scenarios, keep in mind that the library patron may be liable for copyright infringement even if the library is not.

	1.	A nonprofit library possesses one (1) copy of a popular word processing program pursuant to a valid license, affixes to the package the required copyright warning, and makes it available at the circulation desk for patrons to borrow.

		This is permissible under Title 17 Section 109(b)(2), provided that the lending library is unaware or has no substantial reason to believe that the computer software is lent for a for-profit purpose.

	2.	Assuming the same facts as in Computer Programs E.1. A student working on an English literature research paper borrows the word processing program and installs it on his/her personal computer. Later, when the word processing program is overdue, she returns the packaged copy to the library, but keeps the copy installed on his/her computer to complete the research paper.

		Statutory exemptions are available to the library, but not to the student. The Title 17 Section 109(b)(2) lending exemptions permit "transfer of possession" and "lending" of computer programs by schools and libraries for users, but not unauthorized reproduction by patrons. The library would not face liability unless contributory infringement or vicarious liability is proved, such as demonstrating that the library encouraged patrons to copy.

	3.	A nonprofit library loans its copy of applications software that was purchased, not licensed. The required warning is affixed to the package.

		This is permissible under Title 17 Section 109(b)(2) provided that the borrowing library is unaware or has no substantial reason to believe that the software is to be used for for-profit purposes. Lending the applications software is impermissible if the library acquired it under a license that did not permit loans.

	4.	A library purchases a book with supplemental software on a disk in the book pocket. The library lends the book with the accompanying software in response to an inter-library loan request.

		This is permissible under Title 17 Section 109(b)(2), provided that the book and software is lent for a nonprofit purpose, and the library affixes to the book or disk the required copyright warning.

F.	Patron Use from Remote Servers

	1.	A library at a nonprofit educational institution obtains a single-machine license for a popular word processing program, but makes it available via a campus-wide computer system that any number of students, faculty, and staff may access simultaneously from either on or off campus. The required copyright warning is displayed whenever an end-user signs onto the computer system.

		The fair use defense and statutory exemptions are unavailable. The lending exemptions for nonprofit libraries and nonprofit educational institutions apply to lawfully made copies, but not to the unauthorized reproduction and public display that occurs with network distribution. The fair use defense also should not apply to this reproduction, despite its non-commercial purpose, because the entire computer program is reproduced, the computer program may be unpublished, and the serious commercial effect caused by lost license fees and pirated copies.


		2.	Assume the same facts as in Computer Programs F.1., except that the library obtains a network version of the word processing program and a site license permitting simultaneous access for faculty, staff, and students.

			There is no infringement by library or faculty, staff, or students.

		3.	A nonprofit library has installed a computer program on its network and made it available to patrons, pursuant to a license agreement, via on-site terminals. Despite warnings to the contrary, a patron copies the computer program onto a diskette for his/her personal use.

			There is copyright infringement by the library patron, and neither the fair use defense nor a statutory exemption is available.

		4.	A student at a nonprofit educational institution licenses a computer program for his/her personal computer, and uploads the computer program to the school library's network, where it can be accessed and copied by several hundred students, faculty and staff without permission of the copyright owner.

			There is copyright infringement by the student. His/Her unauthorized reproduction of the computer program is not covered by Title 17 Section 109(b) exemptions for nonprofit library lending for nonprofit purposes or nonprofit educational institutional lending.

Database Downloading
A teacher/student may:

	A.	download to the printer bibliographic citations or full text of a document identified during a search of DIALOG, Wilsonline, etc., as the terms of the school's contract which the vendors specify. It is assumed that the user will require no more than 20-30 citations, will be using a legitimate password/subscription for invoice purposes, and has local approval to order, receive, and provide payment for a full-text document or citations.

	B.	use downloaded material for individual research or teaching.

A teacher/student may not: (without express written consent of the database vendor):

	A.	keep archival copies of downloaded works;

	B.	download a "substantial taking" (complete database or most of the records). Note that this criterion also includes a qualitative aspect. For example, if several records were retrieved from a large database but these records were qualitatively superior to the others, the use could also be considered a "substantial taking";

	C.	make commercially available the downloaded material. All four (4) fair-use criteria apply to downloading, but the economic aspect has generally been regarded to be the most important.

Digital Images

	A.	Digitizing by Institutions: Newly Acquired Analog Visual Images

		An educational institution may digitize newly, lawfully, acquired analog visual images to support the permitted educational uses under these guidelines unless such images are readily available in usable digital form for purchase or license at a fair price. Images that are readily available in usable digital form for purchase or license at a fair price should not be digitized for addition to an institutional image collection without permission.

B.	Creating Thumbnail Images

	An educational institution may create thumbnail images of lawfully acquired images for inclusion in a visual catalog for use at the institution. These thumbnail images may be combined with descriptive text in a visual catalog that is searchable by a number of fields, such as the source.

C.	Access, Display, and Distribution on an Institution’s Secure Electronic Network

	Subject to the time limitations in Section Digital Images D., an educational institution may display and provide access to images digitized under these guidelines through its own secure electronic network. When displaying digital images on such networks, an educational institution should implement technological controls and institutional policies to protect the rights of copyright owners, and use best efforts to make users aware of those rights. In addition, the educational institution must provide notice stating that digital images on its secure electronic network shall not be downloaded, copied, retained, printed, shared, modified, or otherwise used, except as provided for in the permitted educational uses under these guidelines.

	1.	Visual online catalog: An educational institution may display a visual online catalog, which includes the thumbnail images created as part of the institution’s digitization process, on the institution’s secure electronic network, and may provide access to such catalog by educators, scholars, and students affiliated with the educational institution.

	2.	Course compilations of digital images: An educational institution may display an educator’s compilation of digital images (See also Section Digital Images E.1.b.) on the institution’s secure electronic network for classroom use, after-class review, or directed study, provided that there are technological limitations (such as a password or PIN) restricting access only to students enrolled in the course. The institution may display such images on its secure electronic network only during the semester or term in which that academic course is given.

	3.	Access, display, and distribution beyond the institution’s secure electronic network: electronic access to, or display or distribution of, images digitized under these guidelines, including the thumbnail images in the institution’s visual online catalog, is not permitted beyond the institution’s own electronic network, even for educational purposes. However, those portions of the visual online catalog which do not contain images digitized under these guidelines, such as public domain images and text, may be accessed, displayed, or distributed beyond the institution’s own secure electronic network.

D.	Time Limitations for Use of Images Digitized by Institutions from Newly Acquired Analog Visual Images

	An educational institution may use and retain in digital image collections images that are digitized from newly acquired analog visual images under these guidelines, as long as the retention and use comply with the following conditions:

	1.	Images digitized from a known source and not readily available in usable digital form for purchase or license at a fair price may be used for one (1) academic term and may be retained in digital form while permission is being sought. Permission is required for uses beyond the initial use; if permission is not received, any use is outside the scope of these guidelines and subject to the four-factor fair use analysis.

	2.	Where the rightsholder of an image is unknown, a digitized image may be used for up to 3 years from first use, provided that a reasonable inquiry is conducted by the institution seeking permission to digitize, retain, and reuse the digitized image. If, after three (3) years, the educational institution is unable to identify sufficient information to seek permission, any further use of the image is outside the scope of these guidelines and subject to the four-factor fair use analysis.

E.	Use By Educators, Scholars, And Students

	Subject to the time limitations in Section Digital Images D., images digitized under these guidelines may be used by educators, scholars, and students as follows:

	1.	Educator Use of Images Digitized Under These Guidelines

		a.	An educator may display digital images for educational purposes, including face-to-face teaching of curriculum-based courses, and research and scholarly activities at a nonprofit educational institution.

		b.	An educator may compile digital images for display on the institution’s secure electronic network to students enrolled in a course given by that educator for classroom use, after-class review, or directed study, during the semester or term in which the educator’s related course is given.

	2.	Use of Images for Peer Conferences

		Educators, scholars, and students may use or display digital images in connection with lectures or presentations in their fields, including uses at non-commercial professional development seminars, workshops, and conferences where educators meet to discuss issues relevant to their disciplines or present works they created for educational purposes in the course of research, study, or teaching.

	3.	Use of Images for Publications

		These guidelines do not cover reproducing and publishing images in publications, including scholarly publications in print or digital form, for which permission is generally required. Before publishing any images under fair use, even for scholarly and critical purposes, scholars and scholarly publishers should conduct the four-factor fair use analysis.

	4.	Student Use of Images Digitized Under These Guidelines

		Students may:

		a.	Use digital images in an academic course assignment such as a term paper or thesis, or in fulfillment of degree requirements.

		b.	Publicly display their academic work incorporating digital images in courses for which they are registered and during formal critiques at a nonprofit educational institution.

		c.	Retain their academic work in their personal portfolios for later uses such as graduate school and employment applications.

			Other student uses are outside the scope of these guidelines and are subject to the four-factor fair use analysis.

F.	Image Digitization By Educators, Scholars, And Students For Spontaneous Use

	Educators, scholars, and students may digitize lawfully acquired images to support the permitted educational uses under these guidelines if 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. Images digitized for spontaneous use do not automatically become part of the institution’s image collection. Permission must be sought for any reuse of such digitized images or their addition to the institution’s image collection.

G.	Important Reminders And Fair Use Limitations Under These Guidelines:

	1.	Creation of Digital Image Collections

		When digitizing copyrighted images, as permitted under these guidelines, an educational institution should simultaneously conduct the process of seeking permission to retain and use the images.

		Where the rightsholder is unknown, the institution should pursue and is encouraged to keep records of its reasonable inquiry. Rightsholders and others who are contacted are encouraged to respond promptly to inquiries.

	2.	Reasonable Inquiry

		A reasonable inquiry by an institution for the purpose of clearing rights to digitize and use digital images includes, but is not limited to, conducting each of the following steps: (1) checking any information within the control of the educational institution, including slide catalogs and logs, regarding the source of the image; (2) asking relevant faculty, departmental staff, and librarians, including visual resource collections administrators, for any information regarding the source of the image; (3) consulting standard reference publications and databases for information regarding the source of the image; and (4) consulting rights reproduction collectives and/or major professional associations representing image creators in the appropriate medium.


		3.	Attribution and Acknowledgment

			Educators, scholars, and students should credit the sources and display the copyright notice(s) with any copyright ownership information shown in the original source, for all images digitized by educators, scholars, and students, including those digitized under fair use. Crediting the source means adequately identifying the source of the work, giving a full bibliographic description where available (including the creator/author, title, publisher, and place and date of publication) or citing the electronic address if the work is from a network source. Educators, scholars, and students should retain any copyright notice or other proprietary rights notice placed by the copyright owner or image archive or collection on the digital image, unless they know that the work has entered the public domain or that the copyright ownership has changed. In those cases when source credits and copyright ownership information cannot be displayed on the screen with the image for educational reasons (e.g., during examinations), this information should still be linked to the image.

		4.	Licenses and Contracts

			Institutions should determine whether specific images are subject to a license or contract; a license or contract may limit the uses of those images.


		5.	Portions from Single Sources Such as Published Compilations or Motion Pictures

			When digitizing and using individual images from a single source such as a published compilation (including but not limited to books, slide sets, and digital image collections), or individual frames from motion pictures or other audiovisual works, institutions and individuals should be aware that fair use limits the number and substantiality of the images that may be used from a single source. In addition, a separate copyright in a compilation may exist. Further, fair use requires consideration of the effect of the use on the potential market for or value of the copyrighted work. The greater the number and substantiality of images taken from a single source, the greater the risk that the use will not be fair use.

		6.	Portions of Individual Images

			Although the use of entire works is usually not permitted under fair use, it is generally appropriate to use images in their entirety in order to respect the integrity of the original visual image, as long as the limitations on use under these guidelines are in place. For purposes of electronic display, however, portions of an image may be used to highlight certain details of the work for educational purposes as long as the full image is displayed or linked to the portion.

		7.	Integrity of Images: Alterations

			In order to maintain the integrity of copyrighted works, educators, scholars, and students are advised to exercise care when making any alterations in a work under fair use for educational purposes such as criticism, comment, teaching, scholarship, and research. Furthermore, educators, scholars, and students should note the nature of any changes they make to original visual images when producing their own digital images.


	8.	Caution in Downloading Images from Other Electronic Sources

		Educators, scholars, and students are advised to exercise caution in using digital images downloaded from other sources, such as the Internet. Such digital environments contain a mix of works protected by copyright and works in the public domain, and some copyrighted works may have been posted to the Internet without authorization of the copyright holder.

H.	Transition Period For Pre-Existing Analog Image Collections

	1.	Context

		Pre-existing visual resource collections in educational institutions (referred to in these guidelines as "pre-existing analog image collections") often consist of tens of thousands of images which have been acquired from a wide variety of sources over a period of many years. Many pre-existing collections lack adequate source information for older images and standards for accession practices are still evolving. In addition, publishers and vendors may no longer be in business, and information about specific images may no longer be available. For many images there may also be several layers of rightsholders: the rights in an original visual image are separate from rights in a reproduction of that image and may be held by different rightsholders. All these factors complicate the process of locating rightsholders, and seeking permissions for pre-existing collections will be painstaking and time consuming.


	However, there are significant educational benefits to be gained if pre-existing analog image collections can be digitized uniformly and systematically. Digitization will allow educators to employ new technologies using the varied and numerous images necessary in their current curricula. At the same time, rightsholders and educational institutions have concerns that images in some collections may have been acquired without permission or may be subject to restricted uses. In either case, there may be rightsholders whose rights and interests are affected by digitization and other uses.

	The approach agreed upon by the representatives who developed these guidelines is to permit educational institutions to digitize lawfully acquired images as a collection and to begin using such images for educational purposes. At the same time, educational institutions should begin to identify the rightsholders and seek permission to retain and use the digitized images for future educational purposes. Continued use depends on the institutions’ making a reasonable inquiry to clear the rights in the digitized image. This approach seeks to strike a reasonable balance and workable solution for copyright holders and users who otherwise may not agree on precisely what constitutes fair use in the digital era.

2.	Digitizing by Institutions: Images in Pre-Existing Analog Image Collections

	a.	Educational institutions may digitize images from pre-existing analog image collections during a reasonable transition period of seven (7) years (the approximate useful life of a slide) from [December 31, 1996]. In addition, educators, scholars, and students may begin to use those digitized images during the transition period to support the educational uses under these guidelines. When digitizing images during the transition period, institutions should simultaneously begin seeking the permission to digitize, retain, and reuse all such digitized images.


			b.	Digitization from pre-existing analog image collections is subject to limitations on portions from single sources such as published compilations or motion pictures. Section Digital Images G.5. of these guidelines should not be interpreted to permit the systematic digitization of images from an educational institution’s collections of books, films, or periodicals as part of any methodical process of digitizing images from the institution’s pre-existing analog image collection during the transition period.

			c.	If, after a reasonable inquiry, an educational institution is unable to identify sufficient information to seek appropriate permission during the transition period, continued retention and use is outside the scope of these guidelines and subject to the four-factor fair use analysis. Similarly, digitization and use of such collections after the expiration of the transition period is outside the scope of these guidelines and subject to the four-factor fair use analysis.

Distance Learning

Broadly viewed, distance learning is an educational process that occurs when instruction is delivered to students physically remote from the location or campus of program origin, the main campus, or the primary resources that support instruction. In this process, the requirements for a course or program may be completed through remote communications with instructional and support staff including either one-way or two-way written, electronic or other media forms.

	Distance education involves teaching through the use of telecommunications technologies to transmit and receive various materials through voice, video and data. These avenues of teaching often constitute instruction on a closed system limited to students who are pursuing educational opportunities as part of a systematic teaching activity or curriculum and are officially enrolled in the course. Examples of such analog and digital technologies include telecourses, audio and video teleconferences, closed broadcast and cable television systems, microwave and ITFS, compressed and full-motion video, fiber optic networks, audiographic systems, interactive videodisk, satellite-based and computer networks.

B.	Applicability And Eligibility

	1.	Applicability Of The Guidelines

		These guidelines apply to the performance of lawfully acquired copyrighted works not included under Title 17 Section 110(2) (such as a dramatic work or an audiovisual work) as well as to uses not covered for works that are included in Title 17 Section 110(2). The covered uses are (1) live interactive distance learning classes (i.e., a teacher in a live class with all or some of the students at remote locations) and (2) faculty instruction recorded without students present for later transmission. They apply to delivery via satellite, closed circuit television or a secure computer network. They do not permit circumventing anti-copying mechanisms embedded in copyrighted works.


	These guidelines do not cover asynchronous delivery of distance learning over a computer network, even one that is secure and capable of limiting access to students enrolled in the course through PIN or other identification system.

	In some cases, the guidelines do not apply to specific materials because no permission is required, either because the material to be performed or displayed is in the public domain, or because the instructor or the institution controls all relevant copyrights. In other cases, the guidelines do not apply because the copyrighted material is already subject to a specific agreement. For example, if the material was obtained pursuant to a license, the terms of the license apply. If the institution has received permission to use copyrighted material specifically for distance learning, the terms of that permission apply.

2.	Eligibility

	a.	Eligible Educational Institution

		These guidelines apply to nonprofit educational institutions at all levels of instruction whose primary focus is supporting research and instructional activities of educators and students but only to their nonprofit activities. They also apply to government agencies that offer instruction to their employees.

	b.	Eligible Students

		Only students officially enrolled for the course at an eligible institution may view the transmission that contains works covered by these guidelines. This may include students enrolled in the course who are currently matriculated at another eligible institution. These guidelines are also applicable to government agency employees who take the course or program offered by the agency as a part of their official duties.

C.	Works Performed For Instruction

	Relation To Instruction: Works performed must be integrated into the course, must be part of systematic instruction and must be directly related and of material assistance to the teaching content of the transmission. The performance may not be for entertainment purposes.

D.	Transmission And Reception

	1.	Transmission (Delivery): Transmission must be over a secure system with technological limitations on access to the class or program such as a PIN number, password, smartcard or other means of identification of the eligible student.

	2.	Reception: Reception must be in a classroom or other similar place normally devoted to instruction or any other site where the reception can be controlled by the eligible institution. In all such locations, the institution must utilize technological means to prevent copying of the portion of the class session that contains performance of the copyrighted work.

E.	Limitations

	1.	One Time Use: Performance of an entire copyrighted work or a large portion thereof may be transmitted only once for a distance learning course. For subsequent performances, displays or access, permission must be obtained.

	2.	Reproduction And Access To Copies

		a.	Receiving Institution: The institution receiving the transmission may record or copy classes that include the performance of an entire copyrighted work, or a large portion thereof, and retain the recording or copy for up to fifteen (15) consecutive class days (i.e., days in which the institution is open for regular instruction) for viewing by students enrolled in the course. Access to the recording or copy for such viewing must be in a controlled environment such as a classroom, library or media center, and the institution must prevent copying by students of the portion of the class session that contains the performance of the copyrighted work. If the institution wants to retain the recording or copy of the transmission for a longer period of time, it must obtain permission from the rightsholder or delete the portion which contains the performance of the copyrighted work.

		b.	Transmitting Institution: The transmitting institution may, under the same terms, reproduce and provide access to copies of the transmission containing the performance of a copyrighted work; in addition, it can exercise reproduction rights provided in Title 17 Section 112(b).

F.	Multimedia

	Commercially Produced Multimedia: If the copyrighted multimedia work was obtained pursuant to a license agreement, the terms of the license apply. If, however, there is no license, the performance of the copyrighted elements of the multimedia works may be transmitted in accordance with the provisions of these guidelines.

G.	Examples Of When Permission Is Required

	1.	Commercial uses: Any commercial use including the situation where a nonprofit educational institution is conducting courses for a for-profit corporation for a fee such as supervisory training courses or safety training for the corporation’s employees.


		2.	Dissemination of recorded courses: An institution offering instruction via distance learning under these guidelines wants to further disseminate the recordings of the course or portions that contain performance of a copyrighted work.

		3.	Uncontrolled access to classes: An institution (agency) wants to offer a course or program that contains the performance of copyrighted works to non-employees.

		4.	Use beyond the 15-day limitation: An institution wishes to retain the recorded or copied class session that contains the performance of a copyrighted work not covered in Title 17 Section 110(2). (It also could delete the portion of the recorded class session that contains the performance).

Multimedia

These uses are subject to the Portion Limitations listed in Section Multimedia D. They should include proper attribution and citation as defined in Sections Multimedia F.2.

	A.	By Students

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

	B.	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.

C.	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 Multimedia D.

	1.	Student Use

		Students may perform and display their own educational multimedia projects created under Section Multimedia A and B. 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.

	2.	Educator Use for Curriculum-Based Instruction

		Educators may perform and display their own educational multimedia projects created under Section Multimedia A and B for curriculum-based instruction to students in the following situations:

		a.	for face-to-face instruction;

		b.	assigned to students for directed self-study;

		c.	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 Multimedia A and B 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 fifteen (15) days after its initial real-time remote use in the course of instruction or fifteen (15) days after its assignment for directed self-study. After that period, one (1) of the two (2) 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.	Educator Use for Peer Conferences

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

		4.	Educator Use for Professional Portfolio

			Educators may retain educational multimedia projects created under Section Multimedia A. and B. of these guidelines in their personal portfolios for later personal uses such as tenure review or job interviews.


D.	Limitations - Time, Portion, Copying And Distribution

	The preparation of educational multimedia projects incorporating copyrighted works under Section Multimedia A. and B., and the use of such projects under Section Multimedia C., are subject to the limitations noted below.

	1.	Time Limitations

		Educators may use their educational multimedia projects created for educational purposes under Section Multimedia A. and B. of these guidelines for teaching courses, for a period of up to two (2) 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 Multimedia C.1.

	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 Multimedia C.1 and Multimedia D.3. should comply with the portion limitations in this section.


			a.	Motion Media: Up to ten percent (10%) or three (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 Multimedia A. and B. of these guidelines.

			b.	Text Material: Up to ten percent (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 Multimedia A. and B. of these guidelines. An entire poem of less than 250 words may be used, but no more than three (3) poems by one (1) poet, or five (5) 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 (3) excerpts by a poet, or five (5) excerpts by different poets from a single anthology may be used.

			c.	Music, Lyrics, and Music Video: Up to ten percent (10%), but in no event more than thirty (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 Multimedia A. and B. Any alterations to a musical work shall not change the basic melody or the fundamental character of the work.


	d.	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 five (5) images by an artist or photographer may be reproduced or otherwise incorporated as part of an educational multimedia project created under Section Multimedia A. and B. When using photographs and illustrations from a published collective work, not more than ten percent (10%) or fifteen (15) images, whichever is less, may be reproduced or otherwise incorporated as part of an educational multimedia project created under Section Multimedia A. and B.

	e.	Numerical Data Sets: Up to ten percent (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 Multimedia A. and B. 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.

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 Multimedia C., there may be no more than two (2) use copies only one (1) of which may be placed on reserve as described in Section Multimedia C.2.c. 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 Multimedia C.3. and Multimedia C.4. for educators and in Section Multimedia C.1. for students.

E.	EXAMPLES OF WHEN PERMISSION IS REQUIRED

	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.

	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 Multimedia D.3.

	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 Multimedia C.2.c., without obtaining permissions for all copyrighted works incorporated in the program.

F.	IMPORTANT REMINDERS

	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.


		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 Multimedia C.2.c. 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.

	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.

	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 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.

	5.	Integrity of Copyrighted Works: Alterations

		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.

	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.

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

Obtaining Permission for Copying

	A.	A teacher may request and obtain permission to copy material from a copyrighted work; s/he may then use the work as expressly permitted and will not be bound by the limitations and prohibitions set forth above.

	B.	Request for permission must be in writing and should be sent, together with an envelope addressed to the sender, to the permissions department of the publisher of the work. The request should include the title, author or editor, and edition of materials for which permission is sought; the exact materials to be used, with specification of amount, page numbers, chapters, including, if possible, a photocopy of the material; the number of copies to be made; the use to be made of the duplicated materials; the form of distribution; whether or not the copies will be sold; and the process by which the material will be reproduced.

	C.	A copy of the written permission granted by the publisher or copyright owner shall be preserved by the Superintendent.