This document was designed to help you apply the “Fair Use”... Copyright Act as amended. Fair use is a legal principle...

Transcription

This document was designed to help you apply the “Fair Use” Guidelines of the U.S.
Copyright Act as amended. Fair use is a legal principle that gives specified groups such as
educators more latitude in using copyrighted material. Copyright, however, is an arcane area of
law, and the fair-use exemption, while clear in principle, is not always clear in application.
Consequently, we urge you to err on the side of caution when applying the exemption. Also be
aware that the information contained in this guide should not be construed as a substitute for
legal advice.
COPYRIGHT LAW
All work (including e-mail) has copyright eligibility the minute it is “fixed in a tangible
medium of expression now known or later developed.” This broad language permits
“considerable room for technological advances in the area of fixation.” Copyright is
automatically afforded all work published on or before March 1, 1989, whether a copyright
notice is present or not. Notice is no longer required to protect a work, but “fixation” is the
device used to ensure that both published and unpublished works in all lawfully designated
copyright categories are protected by federal statute, regardless of medium. These eight
categories often overlap and separate permissions or licenses may be required before a work can
be copied. The categories covered by law are:
Literary works.
Musical works.
Dramatic works (musical performances, plays, dramatic readings).
Pantomimes and choreographic works.
Pictorial, graphic and sculptural works.
Motion pictures and audiovisual works.
Sound recordings and phonorecords.
Architectural works.
Copyright protects only the particular way in which an idea or theme is presented (“fixed in
tangible form”), not the idea itself. The law gives copyright owners the exclusive right to:
reproduce a work,
create a derivative work,
distribute a work in public,
perform a work in public, and
display a work in public.
Copyright Duration
The duration of copyright varies according to the type of authorship, the type of work,
whether it was created before or after the Copyright Act of 1976, before or after the 1998
Copyright Term Extension Act, and whether the work is published or unpublished. The term of
copyright differs under the 1909 law, the 1978 law, and the 1998. The Sonny Bono Copyright
Term Extension Act, signed into law on October 27, 1998, amends the provisions concerning
duration of copyright protection. The terms of copyright were generally extended for an
additional 20 years. The specific provisions are:
Copyright Reference Guide, 1
Pre-1978 works still in their original or renewal term of copyright: The total term is
extended to 95 years from the date that copyright was originally secured.
Works created but not published or registered before January 1, 1978: The term endures
for the life of the author plus 70 years, but in no case will it expire earlier than December
31, 2002. If the work is published before December 31, 2002, the term will not expire
before December 31, 2047.
Works created after January 1, 1978: Copyright protection will endure for the life of the
author plus an additional 70 years. In the case of a joint work, the term lasts for 70 years
after the last surviving author’s death. For anonymous and pseudonymous works and
works made for hire, the term will be 95 years from the year of first publication or 120
years from the year of creation, whichever expires first.
Unpublished works: Unpublished works existing before January 1, 1978, endure for the
life of the author plus 70 years, but in no case will expire earlier than December 31, 2002.
If a work is published on or before December 31, 2002, it is protected until December 31,
2047.
Restoration of copyright to foreign films: copyright protection is restored to all foreign
films in the public domain. U.S. film copyrights cannot be recaptured.
An excellent source of information on fair use, and the source for much of this document, is
Commonsense Copyright: A Guide for Educators and Librarians, which is available in the
Molstead Library. For additional copyright information, please refer to U.S. Public Law 94-553,
Title 17 as well as the following websites:
Copyright Clearance Center <http://www.copyright.com/>
U.S. Copyright Office Home Page <http://lcweb.loc.gov/copyright >
University of Alaska, Fairbanks <http://www.uaf.edu/library>
Copyright and Fair Use, Stanford University <http://fairuse.stanford.edu>
Music Resources <http://www.ascap.com/>, <http://www.bmi.com/>
Distance Learning and Educational Multimedia
<http://www.www.lib.siu.edu/regional/copyright.html>
COPYRIGHT INFRINGEMENT
The Copyright Remedy Clarification Act gives copyright owners the right to pursue
remedies for infringement, including the right to sue public employees and public institutions.
Consequently, educational institutions that do not have formal copyright policies in place have
only limited recourse should litigation arise. If you violate any of the exclusive rights granted to
copyright owners, you “infringe” copyright and commit an illegal act; whether you are caught is
irrelevant.
The time-honored practice in litigation is to sue everyone who can conceivably be held
liable in a case. If you infringe copyright, you place yourself and each subsequent level above
you up to and including the president and board of trustees at risk. The reason one so rarely
hears about copyright infringement cases involving educational institutions is because most are
settled out of court to avoid causing undue publicity and embarrassment to the institution.
However, lists of violators are maintained by most of the associations representing copyright
owners (ASCAP or the Software Publishers Association for example).
Specific remedies for infringement may include statutory damages or an award of actual
damages for any profits made by the infringer. If the infringer is also found guilty of criminal
behavior, the penalties increase. Criminal infringement refers to the willful violation of
copyright for “commercial advantage or private financial gain.” Criminal penalties may include
a prison sentence and punitive damages in excess of $1,000,000.
“Innocent Infringer”
Copyright law includes a provision limiting liability for the innocent infringer. This means
that statutory damages for educators, librarians, archivists, public broadcasters, and nonprofit
educational institutions will be waived. Nevertheless, the burden of proving “good faith and
innocence of wrongdoing” rests with the infringer, who can still incur court costs, attorneys fees
and so on.
“FAIR USE”
Fair use is a legal principle that places some limitations on the exclusive rights granted to
copyright owners. The exemption provides nonprofit educational institutions, researchers,
journalists and broadcasters with some latitude in duplicating limited portions of copyrighted
material. Such duplication is considered reasonable for purposes of criticism, comment, news
reporting, teaching, scholarship, and research.
To qualify as “fair use,” the following criteria must be met:
The “purpose and character” of use is for “systematic instructional activities.”
The amount of work to be copied is based on the “portion limit” set for that
“medium.”
The use will not have a negative effect “on the potential market of the work”
(estimated market loss to the copyright holder is a key factor in determining fair
use.)
The “brevity test” -- the amount used in proportion to the whole meets the portion
limit for that medium (usually no more than 10 percent).
The “spontaneity test” -- you didn’t have enough lead-time to request permission
beforehand, so your use was made in “good faith” (the “teachable moment”).
The “cumulative effect test” -- use is sufficiently limited so that the “aggregate”
combination of small uses will not cause economic harm to the market.
“Systematic Instructional Activities”
Duplicating copyrighted material for instructional purposes is limited to face-to-face
instruction conducted in a classroom, library or similar setting, and/or is limited to closed-circuit
instruction in a restricted-access environment that cannot be accessed by the public.
Portion Limitations
Portion limitations are specific to the medium in which a work is created and specify how
much may be copied in relation to the whole. In general, no more than 10 percent of a work
should be copied, or you run the risk of excerpting “the creative essence.” Portion limitations
apply “in the aggregate” and “cumulatively.” In other words, the total amount of material that
you are allowed to copy from a single work is limited, and those limitations apply to the total
number of times a single source may be used during a given semester.
Creative Essence
Hard work, or “sweat of the brow,” is no longer rewarded by copyright. Only creativity is
awarded copyright status. Consequently, excerpting the “creative essence” of a copyrighted
work is infringement. This concept is especially important with respect to recorded music
because a few bars can establish the melodic line. When using recorded music in instructional
activities, be aware that the potential for infringement increases. In general, you should never
use more than 30 seconds or 10 percent of a piece of recorded music.
Digital Transmissions
A digital transmission is a one that, in whole or in part, is fixed in a digital or other nonanalog format. Digital versions of works -- text, images, sound, cartoons, graphics, logos, etc. -have the same protection as print versions. When a file is transferred from one computer
network to another, multiple copies are made. When making multiple copies, the tests of
“brevity,” “spontaneity,” and “cumulative effect” apply (see above). Displaying graphics or
images in electronic publishing for which you do not have permission is illegal unless the rights
holder grants permission. If you transmit a copyrighted work over the Internet without
permission, you are infringing copyright.
Performance
To “perform” a work means to “show its images in any sequence or to make the sounds
accompanying it audible.” If a play can be seen with the human eye, it is a performance. If it is
downloaded from one computer network to another, it is not.
Music & Video
Duplicating music and the “fair use” of music are two complicated and hotly contested areas
of copyright law. Some of the most controversial activities involve streaming and webcasting of
sound recordings. Although webcasting usually refers to live, one-way, “non-interactive”
performances of music transmitted over the Internet, it also includes digital transmission of video
and sound recordings. Streaming most often refers to the one-way, non-interactive transmission
of visual images accessed by a computer or server. Regardless of the format, copyright law still
applies. The performance of a sound recording through digital audio transmission (over the
Internet for example) is an exclusive right belonging to the copyright owner. The music
broadcast by radio stations is copyrighted, and is not subject to fair use.
If a campus does not have a music license, the best defense is to adhere to the fair use
guidelines or rely on public domain materials. A license covers 90 percent of all music
available. At this time, it appears that NIC only has a performance license for theatrical
productions.
Although the major music associations such as BMI and ASCAP do not have “copyright
police” routinely looking for abuses at colleges and universities, their investigators do make
clandestine visits to campuses and do rely on vendors to find violators. BMI and ASCAP
investigators also search the Internet looking for violations. “Watermarking” of CDs and other
similar devices can detect when music is being copied illegally.
On March 7, 2001, the U.S. Senate introduced the Technology Education Copyright
Harmonization Act (TEACH). This legislation represents an attempt to update copyright law by
permitting broader use of online materials in distance education. To date, TEACH has not been
passed by Congress or signed into legislation. It is being actively challenged by a number of
organizations that represent copyright owners.
WHEN IS PERMISSION REQUIRED?
You must obtain permission from the copyright owner whenever your use of copyrighted
material exceeds the fair use limits. To determine whether permission is required, refer to the
section on “Fair Use” above and to the charts that follow before asking Instructional Technology
to duplicate copyrighted material. If you find that your use of copyrighted material will exceed
fair use, you are responsible for running a copyright search and providing IT with written
consent from the copyright holder. Do not assume that because you own a copy of something
that you own the original; you only own the copy. Instructional Technology will not duplicate
copyrighted material.
Obsolete Equipment, Format Changes and Out-of-Print Works
Obsolete is defined as “no longer manufactured” or “no longer reasonably available in the
commercial marketplace.” A work that is out of print or in an obsolete format, or for which the
equipment to view it is no longer available through standard commercial outlets, cannot
automatically be duplicated. No matter how old or obsolete the format, as long as a work is in
copyright or available for purchase in a newer format, you are required by law to buy it.
Library Preservation
The only exception to this rule relates to a “work currently in the library’s or archives’
collections.” In this case, three digital copies may be made “for preservation purposes” as long
as a “reasonable attempt” has been made to contact the copyright holder to obtain permission.
Only an archival copy may replace a damaged copy, and the copy is not to be used to extend the
life of the original.
“Reasonable Attempt”
Legal consensus holds that a “reasonable attempt” means that you made three documented
phone calls and sent three follow-up letters to the copyright owner in an attempt to obtain
permission. Instructional Technology will require such documentation at the time you make a
request to have out-of-print or obsolete format materials duplicated.
Example 1: You have a Betamax videotape that you would like converted to VHS. Both the
format and the equipment are obsolete. Instructional Technology will not make the
conversion until you verify in writing that the Betamax tape is unavailable for purchase in a
newer format. As long as it is available in a newer format, you must purchase the newer
version. (Some producers will exchange old formats for newer ones at a discounted rate.)
Otherwise, you must make a reasonable attempt to obtain permission.
Example 2: You want a 16mm film converted to VHS format because the campus no longer
has 16mm projectors. Refer to Example 1. (A film made in the United States and
copyrighted in 1903 could be duplicated because the work is now in the public domain.
Converting 16mm film to VHS format requires a film chain, a very expensive and
essentially obsolete piece of equipment that NIC does not possess.)
Example 3: You have a 30-year-old filmstrip and want it converted to VHS. It is not
available from the distributor in a newer format. At 30 years, the filmstrip is probably still
in copyright. Refer to Example 1.
LIBRARY RESERVES AND COPYRIGHT
Photocopies of copyrighted journal articles are subject to special limitations under the
law. Up to five simultaneous duplicates of such material may be reserved for a maximum of one
semester, provided that:
The article, if not owned by the library, has never been reserved in photocopy
format in the library at any previous time.
And the library did not obtain the photocopied article to be reserved.
Journal articles that are not owned by the library may not be placed on reserve for more than
one semester. Instructors must obtain special permission from the copyright holder of the work
in question. Permission request forms for this purpose are available at the Check-Out Desk or
from the Public Services Librarian. A copy of the publisher’s written permission must be
submitted with the material to be placed on reserve. Journal articles owned by the library may be
placed on reserve for more than one semester. (The library pays for a paper or an electronic
subscription or acquires the journal on microform).
Copyright restrictions for reserves also limit the reservation of audio-visual materials.
Unauthorized duplications of broadcasts or copyrighted media may not be placed on reserve.
Items produced by Instructional Technology, and thus owned by NIC, may be reserved. Free,
complimentary or preview copies of textbooks may not be placed on reserve. To place a reserve
on a book (or a “fair use” portion of that book’s text) that your department did not purchase,
please ask the library to acquire the book and place it on reserve for you.
It is useful to remember that copying of reserve collections is an extension of classroom
copying and that library reserve staff must follow the same copyright guidelines as classroom
instructors.
Library reserves supplement course material. Please do not place materials on reserve for
your students that are not required reading, listening, or viewing. Remember that classroom use
and fair use may not be the same thing.
I. Fair Use of Print Materials
COPYING PRINT MATERIALS 1
Medium
Fiction, Nonfiction
Textbooks, Theses
Stories, Essays,
Anthologies,
Encyclopedias
Instructor’s
Copy
1 chapter
1 story or essay
Poetry
1 poem
Periodicals 2
Cartoons, Charts,
Maps, Pictures 3
Lectures, Sermons,
Speeches
Transparencies of
copyrighted works
1 article
1
1 per issue or book
1 per issue or book
1 per issue or book
Usable
Amount
1,000-word excerpt
or 10%
2,500-word excerpt
or story
250-word excerpt
or poem
2,500-word excerpt
or essay
1
2,500-word excerpt
or essay
1
Cumulative Use
Per Semester
2
2-3
2
3
2-3
2-3
2-3
By law, you may use any of these media in any combination a total of 9 times per course per term.
2
Newspapers and current news sections of periodicals are subject to free use. You may not copy
workbooks, manuals, standardized tests, study guides, or other consumable works.
3
Cartoons are copyrighted and cannot be used on a website. Transmitting a visual image beyond
“viewers present at the place where the copy is located” is considered infringement. Transmission “by
any method . . . from one place to members of the public located elsewhere” is infringement.
Does Not Comply with Fair Use:
Copying more than one work or two excerpts from a single author during one class term.
Copying more than three works from a collective work or periodical volume during one class
term.
Copying more than nine sets of multiple copies for distribution to students in one class term.
Copying to create, replace or substitute for anthologies, compilations or collective works.
Copying of “consumable works” such as workbooks, standardized tests, answer sheets, and
so on.
Charging students beyond the actual cost of photocopying.
Making multiple copies without including notice of copyright.
II. Fair Use of Sheet & Recorded Music
COPYING SHEET & RECORDED MUSIC
Medium
Amount
Sheet Music
Sound Recording
3
(music, lyrics, CDs,
music, cassettes,
records, video, etc.)
No. of Copies
Emergency
copies only
For imminent
performance of
purchased copies;
copies may be used
only for one
performance
10% or 30 sec. of
performable unit
of a larger work
(movement, aria) or
all of an out-of-print
work 2
Multiple copies for
classroom use of a
small amount of a
performable unit
(not to exceed 10%;
only 1 copy/student)
10% or 30
seconds
(of 1 work or several
works that do not
constitute an entire
performance unit)3
Edit or Simplify
Yes
Retention
1
(if the essence of a
work is not be
distorted)
Yes
(by NIC or individual
instructor)
Yes
(but you may not
No
distort it or alter the
lyrics)
1 copy of re-cording
of copy-righted
music owned by NIC;
recorded student
performance for
evaluation or
rehearsal purposes;
per student for
constructing aural
exercises or exams
No
Yes
(by NIC or individual
instructor)
1
Editing a song on a purchased sheet of music is acceptable for instructional use as long as the work is not distorted
or the lyrics (if any) are not altered or added where there are none.
2
You must confirm, in writing, that a work is out of print, or it must be old enough to be out of copyright. (Refer to
“When is Copyright Permission Required?”)
3
Entire songs may be used for background music in multimedia presentations only as part of “systematic instructional
activities . . . directly related . . . to teaching . . . in a classroom or similar places . . . without any purpose of direct or
indirect commercial advantage . . . .” Read the license to determine whether public-domain music on compact discs
may be used on the Internet or a website.
Copying to replace or substitute for anthologies, compilations or collections.
Copying “consumable” works.
Copying for the purpose of performance except as permitted for emergency use for imminent
performance.
Copying to substitute for the purchase of music.
Failing to include the copyright notice on duplicated material.
Broadcasting popular music without a license or permission.
III. Fair Use of Educational Multimedia
COPYING AND EDUCATIONAL MULTIMEDIA 1
MEDIUM
Motion
Media
Use
Total
Useable
Amount
Yes
Yes
Yes
Yes
10% or 3
minutes
Instruction
Portfolio
10% or 30
seconds of
1 work or
several
works
Visual
Images 3
5 from 1
artist, 15
from a
collective
work or
10% total
5
6
Unsecured
Network
Media Ctr.
Reserve &
Archival
Copies
1
Music
2
Text
Database
Table
No. of
Copies 4
Retention
Period
Original
2 years
10% or
1,000
words
10% or
2,500
fields or
cells
Yes
Yes
Yes
Original
2 years
Yes
Yes
Yes
Yes
Original
?
Yes
Yes
Yes
Yes
Original
15 days
1 copy
for each
Yes
Yes
Yes
Yes
Yes
2 years
Permission is required for (a) non-educational or commercial use, (b) portions used beyond the Fair Use Guidelines,
(c) use on electronic networks.
2
Entire songs may be used for background music in multimedia presentations only as part of “systematic instructional
activities . . . directly related . . . to teaching . . . in a classroom or similar places . . . without any purpose of direct or
indirect commercial advantage . . . .” Read the license to determine whether public-domain music on compact discs
may be used on the Internet or a website.
3
If each visual image is copyrighted and the source does not forbid photographic reproduction, then copyright mark
must be included with each image. If copyright information is incompatible for test purposes, use of visual image
should state, “compatible with instructional objectives.”
4
In cases of joint authorship, each author may keep a copy.
5
Refers to (a) face-to-face instruction, (b) directed self-study, (c) remote instruction that is PIN or password protected,
(d) peer conferences.
6
Professional portfolio for tenure, personal or job interviews.
You May:
Excerpt sections of a film or videotape (not to be shown over cable) if excerpting does not
exceed 3 minutes or 10% of the total or excerpt the “creative essence.”
Copy images from a book, magazine, filmstrip, “consumable” workbook, etc. to create slides,
overhead transparencies, photographs, illustrations, etc. for educational purposes, provided
you do not excerpt the “creative essence.” (You may not post a copyrighted cartoon on a
web page.)
Narrate stories of literary excerpts on tape and duplicate them when similar material is not
available for sale.
Produce one archival copy of a video or audiotape, but no more than one copy may be used
at a time.
Copy one videotape to another videotape format (e.g., Beta to VHS), only for use in
buildings with non-compatible formats, because all students should be able to access the
same program. Only one tape may be used at a time.
Use public-domain material (artwork, QuickTime clips, text, music, etc.) in class or for
distance education, even if the site is not password-secured or PIN-protected. Check the
license to ensure that permission is not required for public-domain music on compact discs.
Excerpting the “creative essence” of any work used in a multimedia project.
Duplicating videotapes (except as permitted above), unless reproduction rights have been
secured or you have verified in writing that the copyright holder is no longer in business.
Converting one media format to another (e.g., 16mm film to videotape) unless reproduction
rights have been secured or you have verified in writing that the copyright holder is no longer
in business.
Reproducing commercial “ditto masters,” individually or in sets (including multimedia kits)
if they are available for sale separately.
Crediting Sources:
Each multimedia project must credit all sources, including “fair use” sources.
You must display the copyright ownership information, including the copyright notice either
on each screen or on a “credits screen” (©, year of first publication, name of copyright
holder, author, title, producer, year of publication, etc.).
You must include an opening screen with a “fair use” notice such as: “Certain materials are
included under the Fair Use Exemption of the U.S. Copyright Act and are restricted from
further use.”
Integrity of Copyrighted Works:
You may alter portions of copyrighted works used in educational multimedia projects only if
those alterations support specific instructional objectives. You must indicate that such
alterations were made.
If your educational multimedia project could later result in broader dissemination
(commercial or otherwise), you should obtain permission during the project development
stage for all copyrighted material.
IV. Fair Use of Computer Software & Documentation
Amount
10% or 2,500
fields or
cell entries
COPYING COMPUTER SOFTWARE & DOCUMENTATION
Backup
Archival
No. of
Copy
Copy
Copies
1
1
Small excerpts of
documentation (or
by lease or
purchase
agreement)
Licensing
Agreement
Usually required
You May:
Make a single backup copy of new software when adaptations are required in order to use the
program correctly on a computer or peripheral.
Make a single backup copy for archival purposes (if the publisher does not provide a backup
copy), even if the “shrinkwrap” says you can’t. The copy may be used only if the working
copy is destroyed or no longer functions.
Make copies of new software covered by a site licensing agreement with a software publisher
(in accordance with the limitations specified in the agreement).
Make a copy of licensed software during the process of authorized computer maintenance.
Install a CD-ROM setup on more than one computer as long as it is only used on one
machine at a time.
Make copies of “shareware” for demonstration and evaluation purposes only (copies must be
accompanied by a copyright notice and the publisher’s “shareware” license agreement).
Reproduce copies under fair use “for a very brief time.” (Although the subject of
controversy, this phrase is usually interpreted to mean “only for the time it takes to download
something.”)
Creating new copies of copyrighted programs for any purpose other than those permitted
above.
Creating new copies while using a disk-sharing program.
Loading a program on more than one computer unless permitted by license, even if one
machine is located at home and the other at work.
Assuming that because you buy a program, you own it (in most cases software is leased not
owned).
Assuming that shareware is not copyrighted.
Using “code breaker” programs to defeat copy protection mechanisms employed by software
publishers.
Modifying copyrighted software, including but not limited to de-compiling, disassembling or
reverse engineering of copyrighted code.
Distributing older versions of software when upgrading to a new version. (Unless
specifically permitted by the publisher, the earlier version and the upgrade are considered by
law to be elements of the same software program.)
V. Off-Air Broadcast Taping
OFF-AIR TAPING OF MOTION PICTURE & TELEVISION PROGRAMS
Medium
Live
transmission to
classroom
Instructor’s
copy for
limited period
classroom use5
PBS
Programs
Cleared for
Taping 1
Commercial
Television
Programs 2
Television
Audiovisual
News
Programs 3
Cable &
Satellite
Subscription
TV Programs4
Motion
Pictures
Yes
Yes
Yes
No
No
Yes
Yes
No
6
No
“Fair use” in
film or stills
1
PBS Video newsletter covers available programming.
It appears that satellite reception of “broadcast” television programs (simultaneously rebroadcast such as ABC,
NBC, CBS, which require no fee) may be taped off-air.
3
Does not include magazine-format or documentary news programs.
4
Satellite programming cannot be taped. The extent to which fair use applies to cablecasts is unclear, and many
cable programmers make their own rules.
5
Ten days for once-only classroom instruction; 45 calendar days from air date for review.
6
May be retained by a library or archive open to the public for purposes of research, criticism, or comment.
2
You May:
View an off-air video recording in class for “10 consecutive school days from the date the
program airs.” For educational reinforcement, the video may be repeated one time only
within that same 10-day period.
Ask Instructional Technology to tape off-air if you are an individual instructor requesting the
taping for instructional purposes. A program maybe recorded only one time for an individual
instructor.
Retain an off-air broadcast recorded simultaneously with transmission for evaluation for “45
calendar days from the date of recording.”
At the end of the 45-day period, the videotaped recording must be returned to Instructional
Technology for erasure. Off-air recordings need not be used in their entirety but cannot be
altered or edited in any way and must include the copyright notice as it appears during
recording.
Recording off-air in anticipation of an instructor’s request.
Using the recording for instruction after the 10-day period or for evaluation after the 45-day
period.
Holding the recording for weeks or indefinitely because:
Other class sections that need the program concepts are not taught within the 10-day
period.
An interruption or technical problem delayed use.
Another instructor wished to use the video.
Or for any other “purportedly legitimate” educational reason.
VI. Fair Use in Distance Learning
Medium
Motion
Media
Music 4
Visual
Images 5
“Thumbnail”
Artwork
Public
Domain
Literary Work
Transmit
dramatic literary
work
COPYING AND DISTANCE LEARNING 1
Transmit for
Copyrighted
Restricted
Courses 2
Work
Access 3
Unsecured
Network
10% Rule
10% or 3 min.
10% Rule
Yes
Non-dramatic
musical work only
10% or 30 sec.
10% Rule
10% Rule
10% Rule
10% Rule
10% Rule
10% Rule
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
10% Rule
10% Rule
10% Rule
No
No
No
Non-dramatic
literary or musical
work only
Only for blind or
disabled on onetime basis if work
is 10+ years old
1
In general, the portion limitations for Instructional Multimedia apply to Distance Learning.
2
Best policy: (a) limit access to standard course materials; (b) obtain permission for copyrighted works
used repeatedly; (c) terminate student access to course materials at the end of each term; (d) use public
domain materials.
3
Using small amounts of copyrighted works in restricted access courses is permissible, although use may
not exceed 10% of the whole work. Using popular music in satellite or cable distance education programs
without permission or a license is prohibited.
4
Non-dramatic usually refers to a work that is not performed. Entire songs can be used for background
music in multimedia presentations by instructors or students only as part of “systematic instructional
activitivies . . . directly related . . . to teaching . . . in a classroom or similar places . . . without any
purpose of direct or indirect commercial advantage . . . .” Read the license to determine whether publicdomain music on compact disc can be used on the Internet or a website.
5
Using a photograph, chart, table or a motion-picture still in televised telecourses with restricted access
(PIN- or password-protected) is permissible.
You May:
Use public domain material (artwork, QuickTime clips, text, recorded music, etc.) in class for
instructional purposes. Check the license to ensure that permission is not required for publicdomain music on compact discs.
Use public domain material (artwork, QuickTime clips, text, recorded music, etc.) for
distance education, even if the site is not password or PIN-protected.
Show a photograph, chart, table, or a motion-picture still in a televised telecourse only for
educational purposes, as long as access is restricted.
Use “thumbnails” of artwork for instructional purposes even if NIC does not own the
copyright.
Copying a copyrighted video for a telecourse.
Transmitting a copyrighted video for instructional purposes in a course with unrestricted
access without first obtaining permission.
Creating a videotape of clips of other videotapes and broadcasting it without permission.
Using music from a popular CD to accompany a presentation in an unrestricted course.
(Most interpretations of the law recommend that you use only small portions of copyrighted
works, even in restricted-access courses.)
Failing to limit or restrict access to course materials.
Failing to terminate student access to course materials at the end of the term.
Failing to obtain permission for works that are used repeatedly.
VII. Fair Use of Visual Images
COPYING VISUAL IMAGES 1
Medium
Slides
Photographs
Cartoons
3
Charts, Graphs &
Maps
Transparencies of
Copyrighted Work
1
No. of Copies
5 from 1 artist or 15 from
collective work. May not
exceed 10% of the total
images in a work.
Cumulative Use
per Semester
2
1
10%
1 per issue or book
Transmission
Under certain
conditions
2-3
1 per issue or book
1 per issue or book
If each visual image is copyrighted and the source does not forbid photographic reproduction, then
copyright mark must be included with each image. If copyright information would be incompatible for
test purposes, use of visual images should state, “compatible with instructional objectives.”
2
As long as a visual image is not copyrighted, or if you have permission, and the site is PIN- or password
protected. All sources must be credited. Images must be removed at the end of the semester. Only one
copy of each for “systematic instructional activities” directly related to teaching in a regularly scheduled
educational setting.
3
Cartoons are copyrighted and cannot be used on a website. Transmitting a visual image beyond
“viewers present at the place where the copy is located” is considered infringement. Transmission “by
any method . . . from one place to members of the public located elsewhere” is infringement.
Displaying a visual image of a copyrighted work by transmitting it from one place to
members of the public located elsewhere, for example via closed or open-circuit television or
computer.
Making more than the allowable number of slides from any one work or collective work for
classroom instruction, even if commercially produced slides are unavailable for purchase.
Reproducing individually copyrighted pictures without permission.
Making two or more transparencies of a copyrighted map, chart, graph, or cartoon from a
single book or issue of a periodical.
FREQUENTLY ASKED QUESTIONS
Print Materials
Q: Is it infringement if a department secretary makes 75 copies of a commercially produced
workbook when directed to do so by a department head?
A: Yes, it is infringement and both are liable -- the department head for asking and the
secretary for carrying out the request. You may not copy a consumable work or be directed
to commit an illegal act.
Q: Can I make photocopies of small portions of song lyrics from four songs and copy two
entire songs onto transparencies for one-time classroom use?
A: Yes. As long as entire songs are not distributed to the class, and the number of songs used
for transparencies is small, this is fair use. Multiple copies of entire songs could not be
made.
Q: Am I allowed to copy two maps each out of two textbooks and two periodicals to make
overhead transparencies for class?
A: No. The rule for these materials is one per issue or one per book. However, if the use were
spontaneous, the circumstance would be different and could perhaps exceed the rule.
Q: Can I make copies of Chapter 2 of the textbook I’m using this semester to distribute to each
of my students?
A: No. An entire chapter cannot be copied unless it consists of less than 1,000 words or no
more than 10% of the book, whichever is less. You may, however, make a copy of Chapter
2 for your own research.
Q: I have a copy of a five-page book that was published in Great Britain. Every year I make
five additional copies of the book to use just once in a particular course. Must I get
permission from the publisher in Great Britain?
A: Yes. We observe the copyright laws of other countries and they observe ours.
Q: May I make 20 copies of a Newsweek article to distribute to my class?
A: Yes. As long as the article is less than 2,500 words (test of brevity) and because it would be
unreasonable to expect a timely response to your letter seeking permission (test of
spontaneity). However, you may not use the copies beyond the current term without written
permission from the copyright holder.
Q: May I make transparencies of several worksheets to help my students work through a
particular concept?
A: Yes. But only one transparency of each worksheet may be made. You must also include the
copyright notice from the original work on every transparency.
Sheet & Recorded Music
Q: May I have my class write and perform parodies of popular songs?
A: Yes. An idea or theme is not protected but the “manner of expression” is. In other words,
while you cannot alter the lyrics of a song and still use the original expression, you can
create a true parody of the song. The same rule applies to prose and poetry.
Q: May I make a copy of a portion of a recording so that a student can better learn his/her part?
A: Yes. The excerpt cannot comprise a performable unit (i.e., section, movement or aria), and
the copy may not exceed 10% or 30 seconds of the whole (cf. next question).
Q: I’m giving a lesson on Renaissance music and would like to make a copy of an aria of a
song that is only available in a collection. May I do so?
A: Yes, as long as the music is out of print or unavailable except as part of a larger work, then
you are allowed to make one copy of a performable unit for research or class preparation.
Q: For my course on contemporary music, may I make a copy of a song for the purpose of
constructing a series of questions on the use of lyrics?
A: Yes. Copying a copyrighted sound recording for use in constructing aural exercises or
examination is permissible, but you must include a copyright notice. (If used for test
purposes, and the copyright notice would compromise the purpose, include a statement such
as “these materials are copyrighted.”)
Q: May I make a video or audio recording of a student performance of a copyrighted work?
A: Yes, provided it is for evaluation or rehearsal purposes only. Either the educational
institution or the instructor may retain the recording.
Q: Is the music broadcast by radio stations covered by copyright?
A: Yes. Copying, duplicating or playing radio broadcasts for background music is an
infringement of copyright.
Q: I want to convert phonograph records to audiocassette for the convenience of classroom
instruction. Is this permissible?
A: No. Conversion of phonograph records without a license or permission is illegal.
Q: May I make a tape that includes several segments of a phonorecord, audiocassette, or CD to
instruct or test my students?
A: No. You may not create anthologies. You can make a copy of a single recording for
instructional purposes as long as you include the copyright notice. (If used for test purposes,
and the copyright notice would compromise the purpose, include a statement such as “these
materials are copyrighted.”)
Educational Multimedia
Q: May I retain examples of student multimedia projects to use for demonstration purposes
during face-to-face instruction in other classes?
A: Yes, but only for two years. The instructor may keep one copy of each student project for
educational purposes. One other copy may be kept on reserve in the library for two years
after the first instructional use. Retention beyond the two-year limit requires “permission
for each copyrighted portion incorporated in the production.” Students may retain their own
projects for later personal use, such as job or school interviews. Students hold copyright to
their own work. (Projects created by an instructor may be retained by that instructor in a
professional portfolio for tenure review or job interview purposes beyond the two-year
period.)
Q: May I show examples of student multimedia projects to illustrate performance assessment
concepts and criteria over a remote network to different sites throughout the state?
A: Yes, as long as the network is password-secured or PIN-protected to prevent duplication of
copyrighted material. If the available technology cannot prevent duplication, a project may
only be retained for 15 days after its initial real-time remote transmission or for 15 days
after its assignment for directed self-study.
Q: I want to digitize a short video clip from a television show to use in a HyperCard program
I’m developing for student use. May I keep it in the program?
A: Yes, as long as it does not exceed 10% or 3 minutes of the total.
Q: I’m making a write-once CD of various QuickTime movies that I have created from my own
original footage. I own a legal copy of QuickTime and will use the movies in class for faceto-face instruction. Do I need permission to place Movie Player on my CD?
A: No. The CD is archival for your own purposes, and you own a legal copy of QuickTime.
However, you could not duplicate the CD without signing a statement or providing
information proving that you have legal copies of QuickTime.
Q: Is it okay for my students use short segments of popular music from CDs for the electronic
portfolios they are making for their final exam?
A: Yes, but they are restricted to 10% or 30 seconds from one work or several extracts from
one work. A “credits screen” should be included for all print and non-print materials (©,
year of first publication, name of copyright holder, author, title, producer, year of
publication, etc.). The notice on the opening screen should state, “Certain materials are
included under the Fair-Use Exemption of the U.S. Copyright Act and are restricted from
further use.”
Q: Should NIC copyright its website?
A: The college can copyright its website and place a copyright mark on its frames at the
beginning and/or end of each page on the site. The copyright mark has been unnecessary
since 1989 because all works fixed in a tangible medium have automatic protection.
However, additional protection is provided by copyright registration.
Computer Software & Documentation
Q: Is multiple booting legal?
A: No. Unless your site license allows it, multiple booting of a program is the same as making
multiple copies.
Q: Our department purchased a program that is copy protected but a backup was not supplied, so
can I use a “nibble copier” or “locksmith” program to make a backup?
A: Yes. The fair use exemption allows the purchaser of a program to make or authorize the
making of an archival copy to guard against human or mechanical damage. (It is unclear
who can supply the backup -- the producer or the purchaser.)
Q: Should I request a backup copy when purchasing instructional software?
A: Yes. In case of damage, an archival copy can be used in place of the original until a new
disk is received. Many producers will send a replacement disk for a small fee if the original
is returned.
The Internet
Q: Do I need permission to quote e-mail in a paper?
A: Yes. You may paraphrase and cite e-mail without permission, but quoting e-mail requires
permission unless permission was provided in the e-mail or the footer.
Q: Am I supposed to get permission to add a cartoon to my personal web page on the NIC
website?
A: Yes. Cartoons are individually copyrighted, so fair use cannot be made of them on a
website. Potentially, millions of people might see it and the cartoonist could successfully
argue that you diminished the market for that cartoon.
Q: May I upload copyrighted software to a message board for downloading by students?
A: No. A license or permission is required.
Q: Students in one of my HTML classes would like to copy short segments for use in their class
projects. Is this permissible?
A: Yes. HTML is not copyrighted, although the text that it tags is copyrighted. Be careful that
students don’t use the HTML copy as an excuse to copy text, images, etc.
Q: May I publish examples of a student’s website in the Sentinel?
A: Yes, provided that each student is 18 years of age or older. It is best to request permission
before using a student’s work.
Distance Learning
Q: May I copy a logo from another website and use it as my own for my web-based course?
A: No and maybe. If you use the logo as an example for instructional purposes, this might be
permissible, but the company that owns the logo could request that it be removed and a link
added to its website instead. In a course with restricted access, this might be permissible,
although it is best to seek legal advice.
Q: May I place a student’s artwork on the NIC website in my web-based course if the site is
secured and password-protected?
A: Yes, as long as the student has granted permission or if there is a statement indicating that
the work produced by students in this course is the intellectual property of NIC. It is best to
request permission before using a student’s work.
Q: May I digitize photographs from a copyrighted art book and place them in a video I am
making for students enrolled in a videotaped version of my course?
A: No. You must have permission, licensing or written proof that the copyright holder is out of
business. Also note that visual images in books and magazines often have several layers of
copyright, and you may have to obtain permission from each copyright holder (e.g., the
artist, the photographer, and the book publisher.)
Off-Air Broadcast
Q: If I’m watching a television program at home and realize its relevance to the course I’m
currently teaching, may I record the program to show in class the next day?
A: Yes. The recording of an off-air broadcast that coincides with an instructional unit already in
progress (test of spontaneity or “capturing the teachable moment”) is considered fair use.
But the tape can only be used for the current unit being taught and must then be erased
within 10 consecutive school days from the date of recording. The law stipulates that
educational institutions are “expected to establish appropriate control procedures to
maintain the integrity of these [Off-Air Recording] guidelines.” You must comply with the
10-day rule whether you record the broadcast or ask Instructional Technology to copy the
program for you. To protect yourself and NIC from copyright infringement, you should
notify IT within 24 hours of making the recording and bring the tape to Instructional
Technology at the end of the specified time period so that recording and erasure can be
documented.
Motion & Video Media
Q: As a reward, I like to show a rented video to my classes on the last day of the semester.
Isn’t this permissible?
A: No. Rented or purchased videos must be an integral part of “systematic instructional
activities” and “may not be used for recreational diversion.”
Q: I asked Instructional Technology to dub a Betamax tape to VHS and make six additional
copies in the process, after all, Betamax format is obsolete, so why won’t they do it?
A: You may not negatively impact the copyright owner’s potential market (refer to the “Fair
Use” section). A single format conversion can be made only if (1) you obtained written
permission from the copyright owner, (2) ascertained that a newer format is not available, or
(3) found that the company is out of business. You must be able to document in writing that
you contacted the copyright owner and received permission to convert the format or found
that the company was out of business.
Q: An instructor asks Instructional Technology to convert one copy of a 25-year old 16mm film
owned by the NIC Library to VHS. Is this permissible?
A: No. Making copies of a film in copyright without license or agreement is infringement
because of the possible effect on the potential market. However, the library can request that
three digital copies be made as long as the film is not available for purchase in a newer
format. Unfortunately, IT does not have the capability to digitize film.
Q. My department purchased a set of videotapes for instructional use, and I want Instructional
Technology make a backup copy for emergency use. Why won’t they do it?
A: Making a backup copy of a videotape you purchased is not considered fair use. However,
you can contact the producer or copyright holder and request permission to duplicate the
tapes for emergency use. You must provide IT with the copyright holder’s written consent.
Visual Images
Q: I need 50 slides that are not available for purchase for use in my art history class and have
asked Instructional Technology to copy them from an art book owned by the NIC Library.
Is this legal?
A: No. The large number of slides, and the likelihood that they will be used from term to term,
makes this an illegal use. You are restricted to five slides from any one artist or 15 from a
collection, not to exceed 10% of any single work. Beyond this, you must obtain permission.
Q: I would like to have Instructional Technology make five additional sets of slides from the set
I purchased. Will they do it?
A: No. By law, if you need five sets of slides, you must purchase five sets of slides.
Q: May I make two transparencies from a current periodical that has pictures of various kinds
of plants to illustrate different kinds of Pacific Northwest flora for my biology class?
A: Yes. As long as the photographs are not individually copyrighted. If they are individually
copyrighted, none of the pictures could be used without permission (most often the case if
print works).
REFERENCES
Johnston, W.K. and D.B. Roark, eds. (1996) A Copyright Sampler. Chicago: Association of
College and Research Libraries.
Lehman, B.A., Chair (November 1998) Conference on Fair Use (CONFU): Final report to the
commissioner on the conclusion of the Conference on Fair Use. Washington, DC: U.S. Patent
and Trademark Office.
Talab, R.S. (1999) Commonsense Copyright: A guide for educators and librarians (2nd edition).
Jefferson, NC: McFarland & Company, Inc.

This document was designed to help you apply the “Fair Use”... Copyright Act as amended. Fair use is a legal principle...

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