I. Introduction

II. The Purpose of Copyright

III. Copyright Requirements

IV. Copyright Notice

V. Duration of Copyright

VI. Works Not Protected by Copyright

VII. Exclusive Rights in Copyrighted Works

VIII. Limitations on Exclusive Rights: Fair Use

IX. Computers and Software

X. Digital Images, Distance Learning and Multimedia

Appendix A: Writing for Permission and Sample Letter

Appendix B: Questions to Ask in the Determination of Fair Use

Appendix C: Copyright Policy on Software

Appendix D: Computers and Software

Appendix E: Copyright Basics Published by the U.S. Copyright Office

Appendix F: Information Resources Off-Air Recording Policy

I. Introduction

This handbook of information, guidelines and policy documents has been compiled as a reference guide for college faculty, staff and administrators to help answer everyday questions about the use and reproduction of copyrighted materials and to provide information about college policy as it applies to the photocopying and reproduction of copyrighted materials in various formats. It offers guidance about what copying is permissible and appropriate in the context of higher education in general and in the context of the State University of New York College at Cortland in particular. It should not be used as a substitute for sound legal advice. Questions which go beyond the scope of the information in this handbook should be referred to SUNY counsel.

Much of the text of this handbook is taken from copyright legislation and legislative guidelines. Some of the text has been adapted from other policies and guidelines such as: the Association of Research Libraries' Briefing Paper on Copyright and the American Library Association's Model Policy Concerning College and University Photocopying. These documents address copyright issues of interest to institutions of higher education and present a clear and balanced approach to a complex topic.

II. The Purpose of Copyright

The primary purpose of the copyright law of the United States is to foster the creation and dissemination of intellectual works for the public welfare. Copyright is a constitutionally conceived property right which is designed to promote the progress of science and the useful arts by securing for an author the benefits of his or her original work of authorship for a limited time (U.S. Constitution, Art. I, Sec 8). The copyright law attempts to balance the rights of copyright owners with those of the users. In order to encourage the production of creative works, the copyright law provides incentive for the creators by granting them exclusive rights to reproduce and distribute their work. These exclusive rights of the copyright holder are, however, subject to important exceptions. Certain public and private uses of copyrighted works are allowed under the law without the copyright holder's permission if they can be determined to be fair use. Information about what constitutes fair use is discussed in detail in this handbook and should be read carefully.

III. Copyright Requirements

The Copyright Act of 1976 (hereafter referred to as the Copyright Act) defines the types of works protected by copyright and specifies the requirements for copyright protection. Works must be of original authorship representing an appreciable amount of creativity and fixed in a tangible medium of expression. Protection begins from the moment a work is committed to writing, recorded on audio cassette tape, or filmed. Works of authorship include the following categories: (1) literary works; (2) musical works; (3) dramatic works; (4) pantomimes and choreographic works; (5) pictorial, graphic and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings.

IV. Copyright Notice

A work is protected by copyright from the moment it is fixed in tangible form on paper, tape, etc. When a work is published, it must be published with proper copyright notice or, under certain circumstances, the copyright may be forfeited. Proper copyright notice usually consists of the following three elements:

A. The symbol © or the word "Copyright," or the abbreviation "Copr."; or, in the case of a phonorecord the symbol ;

B. The year of first publication of the work; and

C. The name of the copyright owner. Of the three options listed in A, it is recommended that the symbol © be used, since that is the form of notice agreed on by all the countries who are signatories to the Universal Copyright Convention.

For books, copyright notices are usually found on the back of the title page. Notices on periodicals are either on the title page, the first page of the text, or in the masthead. Works published prior to January 1, 1978 were required to contain a copyright notice to be protected by copyright law.

Under the present Copyright Act notice requirements have been relaxed so that an absence of notice on works published after January 1, 1978, when the Act became law, does not necessarily mean that the work is the public domain. However, omission of the notice does mean that an innocent infringer is not liable for damages. If, after normal inspection, a person copies and distributes a work on which no copyright notice is visible and the copyright holder finds out about it and claims infringement of copyright, the copyright holder could prevent the future distribution of copies but could not hold the person liable for damages. Following fair use practices should prevent infringement of copyright, innocent or otherwise.

Sometimes the words "All Rights Reserved" are printed underneath a copyright notice. Sometimes statements are added such as: "No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical [etc., etc.]". These statements are used to intimidate or mislead people and prevent photocopying and duplication. They are largely meaningless statements and do not override the concept of fair use rights as discussed on page 4 of this handbook.

V. Duration of Copyright

Under the new law, copyright protection is in effect for the life of the author plus 50 years. For works with multiple authors, it is the death of the last surviving author that triggers the beginning of the fifty years. Works made for hire, works written anonymously, and works written under a pseudonym are protected for 75 years after the death of first publication or 100 years after date of creation, whichever expires first.

This is a significant extension of the pre-1978 term of copyright protection which lasted 28 years from the date of first publication, with an option to renew for one additional 28-year term. Determining the copyright status of a work is no longer as simple as it once was and faculty and staff who have questions about copyright duration should rely on the services of the U.S. Copyright Office (LM 455, Library of Congress, Washington, D.C. 20559- [202] 287-9100), which investigates the copyright status of a work on an hourly fee basis

In general we can say that, all copyrights prior to 1910 have expired. Copyrights granted after 1910 may have been renewed; however the work will probably not contain notice of the renewal. Therefore, should be assumed all writings dated 1910 or later are covered by a valid copyright, unless information to the contrary is obtained from the owner of the copyright or the US. Copyright Office.

VI. Works Not Protected by Copyright

Anyone may reproduce without restriction works which were never copyrighted.

Writings published prior to January 1, 1978 without copyright notices are not protected and may be reproduced without restriction.

Please keep in mind that copyright notice requirements have been relaxed since 1978, so that the absence of notice on works published after January 1, 1978 does not necessarily mean the work is in the public domain. To avoid questions of copyright infringement, faculty and staff wishing to copy these materials should follow fair use practices.

Anyone may reproduce without constraint published works whose copyrights have expired.

All copyrights dated earlier than 1910 have expired. Copyrights dated 1910 or later may have expired. We recommend that faculty and staff should either assume that copyright protection is still in effect for these materials or inquire whether protection is still in effect. Inquires can be made to the U.S. Copyright Office in Washington, D.C.

Anyone may reproduce without permission a publication of the U.S. Government.

U.S. Government publications may be copied freely because they are not copyrightable. They are considered as being within the public domain. This category consists of documents prepared by an officer or employee of the U.S. Government as part of that person's official duties. It does not extend to documents published by others with the support government grants and contracts. These works may or may not be protected by copyright depending on the specifics of the contract under which they were created. Although their copyright status may not be readily apparent, it may be reasonable to assume that much of this material is protected by copyright.

A privately published work which consists preponderantly of one or more works of the U.S. Government must include in the notice of copyright a statement identifying the portions of the work protected under the Copyright Act. In this case, the compilation or arrangement is considered to be an original work but the government document material used in the compilation remains within the public domain and may be reproduced without permission of the copyright holder.

VII. Exclusive Rights in Copyrighted Works

The Copyright Act grants exclusive rights to the owner of a copyright to do and to authorize any of the following:

VIII. Limitations on Exclusive Rights: Fair Use

General

The copyright owner's exclusive reproduction and distribution rights are subject to important exceptions. The fair use exception in Section 107 of the Copyright Act permits copying without the copyright owner's permission for purposes such as criticism, comment, scholarship, research, or teaching and also authorizes the making of multiple copies for classroom use under certain circumstances and where the use is reasonable and not harmful to the rights of the copyright owner.

The Copyright Act does not attempt to specify precisely what might be fair, but leaves the determination for case-by-case decision making. Fair use provisions of the law were purposely designed to be broad, so they could be widely applied to a variety of educational situations. In determining whether a particular instance of copying could be considered as a "fair use" of a copyrighted work, a person must consider four factors:

• the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purpose;
• the nature of the copyrighted work;
• the amount and substantiality of the portion used in relation to the work as a whole;
• the effect of the use upon the potential market for or value of the copyrighted work.

It is important to remember that assessment of what is and what is not fair use relies on the judgment of the individual and must be made on a case-by-case basis. The following illustrations are meant to offer guidance about what might be considered fair use as we look at the four statutory criteria.

1. Purpose and character of the use.

A finding of fair use is more likely if:

a. the use of the copyrighted work is for a non-profit educational purpose, rather than a commercial purpose (however, a nonprofit educational purpose does not ensure absolutely that the use is fair);

b. no charge is made for the copies (beyond the actual cost of reproduction); and

c. the original and the copy do not serve the same function, e.g., a copy is made to avoid purchasing the original and is then used in place of the original.

2. Nature of the copyrighted work.

A finding of fair use is more likely if the copyright work is:

a. a compilation of facts or information rather than a creative or imaginative work;

b. out of print or unavailable for purchase through normal channels;

c. not a consumable work (such as a workbook);

d. not intended for performance or public exhibition (such as a musical score); or

e. a newspaper or periodical (but not a newsletter) containing articles of current interest.

In the context of classroom use, copying from textbooks and other materials prepared primarily for the education market is less likely to be considered fair use than is copying from materials designed for general public distribution.

3. Amount and substantiality of the material used in relation to the copyrighted work as a whole.

Both the quantity (the amount copied) and the quality (the importance of the portion copied) of the use must be considered. A finding of fair use is more likely if the material copied:

a. is a small portion of the total work; and

b. does not contain a substantial amount of the essence or principal elements of the work.

4. Effect of the use on the potential market for or value of the work.

A finding of fair use is more likely if the use:

a. does not supplant a portion of the market for the work; or

b. stimulates sales of the work.

Appendix B of the handbook contains a series of questions of a person wishing to reproduce a copyrighted work should ask to determine whether a particular use can be considered fair use. We hope that the above illustrations and the questions in appendix B will help faculty and staff answer everyday questions about reproducing copyrighted materials without permission of the copyright holder.

Educational Uses of Copyrighted Material

The legislative history of the Copyright Act clearly indicates an unwillingness to free educational copying from copyright control while at the same time recognizing a need for guidance about permissible amounts of photocopying of copyrighted materials for educational purposes.

To offer some guidance, a set of Guidelines for Classroom Copying in Not-for-Profit Educational Institutions (hereafter referred to as Classroom Guidelines) was drawn up by representatives of various educational organizations and included, not as part of the Copyright Act itself, but as part of the legislative history of the Act. These Classroom Guidelines list specific, quantitative standards for minimum (but not maximum) fair use copying, including both single copying by teachers and multiple copying for classroom use. These Classroom Guidelines are found on pages 8-12 of this document.

It is important to note that these Classroom Guidelines were not uniformly welcomed by the education community and may be particularly unsuitable (i.e. too specific and too limiting) in the context of postsecondary education. Their purpose is to state the minimum and not the maximum of educational fair use.

Personal Research Use

At the very least, faculty may make a single copy of any of the following for scholarly research or use in teaching or preparing to teach a class:

a. a chapter from a book;

b. an article from a periodical or newspaper;

c. a short story, short essays or short poem whether or not from a collective work;

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

These examples reflect the most conservative guidelines for fair use. They do not represent inviolate ceilings for the amount of copyrighted material which can be photocopied within the boundaries of fair use. When exceeding these minimal levels, however, faculty and staff should consider the four factors listed under the discussion of fair use on pages 5 and 6 of this handbook to make sure that any additional photocopying is justified. The following demonstrate situations where increased levels of photocopying would continue to remain within the parameters of fair use:

-- the inability to obtain another copy of the work because it is not available from the library or another source or cannot be obtained within your time constraints;

-- the intention to photocopy the material only once and not distribute the material to others.

-- the ability to keep the amount of material photocopied within a reasonable proportion to the entire work (the larger the work, the greater amount of material which may be photocopied).

As a general rule, most single-copy photocopying for individual use in research - even when it involves copying a substantial portion of a work - may well be considered fair use.

Quotation in Scholarly Writing

The right of one author to quote from another has long been recognized by copyright law, provided that the quotation is only a small portion of the original work and that credit is given. By "a small portion" is meant, for example, two or three paragraphs of a book or periodical article, a stanza of a poem, a single chart or graph. More extensive quotation should not be made without the express permission from the copyright owner.

Classroom Use

Books and Periodicals

The Classroom Guidelines allow a teacher to distribute photocopied materials to students in a class, without obtaining prior permission to make multiple copies from the copyright owner, under the following conditions:

1) the distribution of the same photocopied material does not occur every semester;

2) only one copy is distributed to each student and that copy becomes the student's property

3) the material includes a copyright notice on the first page of the photocopied material;

4) no charge is made for the copy beyond the actual cost of reproduction.

In addition to these considerations, the amount of material distributed should not exceed certain brevity standards:

1) for prose - a work may be copied in its entirety if it is less than 2500 words in length. If the work is longer, the excerpts copied should not exceed 1000 works, or 10% of the work, whichever is less;

2) for poetry - 250 words is the suggested limit

3) for illustrations - one is the rule of thumb; SUNY Cortland allows 10% of the work, either pages or images, whichever is larger;

There are also considerations of spontaneity and cumulative effect:

1) the copying is at the instance and inspiration of the individual faculty member;

2) the decision to use the material for maximum teaching effectiveness does not allow sufficient time to request permission prior to use;

3) the copying of the material is for only one course;

4) the copying is not done repeatedly from the same materials;

5) there are not more than nine separate instances of such multiple copying for one course during on class term.

These minimum standards are not terribly realistic in the college setting, but they do offer a framework of what is considered fair use in the educational setting. SUNY Cortland takes a liberal interpretation of fair use: copying should not exceed 10% of the document.

Photocopying should not be done as a substitute for purchasing the material, particularly for multiple copy classroom use. Photocopying practices should not have a significant detrimental impact on the market for the original copyrighted work. For example, copying should not be used to create or replace or substitute for anthologies, compilations or collected works. Copying should not be substituted for purchasing "consumable works" such as workbooks, postcards or answer key workbooks.

Copying of Music for Classroom Use

Representatives of music educators; and music publishers developed a set of specific Guidelines for Educational Uses of Music similar to the Classroom Guidelines developed for books and periodicals. These Music Guidelines are intended to state the minimum standards of educational fair use of music and are part of the legislative history of the Copyright Act.

The Music Guidelines are not intended to limit the types of copying permitted under fair use standards and they recognize that there may be instances of copying which do not fall within their stated parameters, but nonetheless may by determined to be fair use.

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

b. For academic purposes other than performance:

-- 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 entity, such as a section, movement, or aria, but in no case more than 10% of the whole work. The number of copies should be one per student.

-- A single copy of a work determined to be out-of-print or unavailable except in a larger work may be made for scholarly research or in preparation for teaching.

c. Printed copies which 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.

d. A single copy of recordings of performance by students may be made for evaluation or rehearsal purposes and may be retained by the educational institution or individual instructor.

e. A single phonorecord of a sound recording of copyrighted music may be made from sound recordings owned by an educational institution or individual instructor for the purpose of constructing aural exercises or examinations.

Library Copying

In addition to exercising fair use rights as listed in Section 107 of the Copyright Act, non-profit libraries and archives are authorized to reproduce copyrighted works without permission under the circumstances indicated in Section 108 of the law.

Single copies of works or portions of works may be reproduced and distributed by a library employee if:

-- there is no direct or indirect commercial, advantage;

-- the library or archive is open to the public or available to researchers working in a specific field;

-- the copy contains a notice of copyright.

Library rights under Section 108 are for isolated and unrelated reproduction or distribution, e.g., a single copy of the same work may be distributed on separate occasions. Libraries may not engage in or knowingly be a party to the systematic reproduction or distribution of single or multiple copies of copyrighted material. Libraries may, however, participate in interlibrary loan arrangements under certain conditions, see under Library Copying - Interlibrary Loan in Section 5.c. in this handbook.

Library Reserve Use

Photocopying for library reserve use is not mentioned specifically in the Copyright Act. In an attempt to offer guidance to faculty and libraries, the American Library Association issued a recommendation to libraries regarding photocopying for reserve room operations. This model policy has been adapted for use by SUNY Cortland's Library and is reproduced below.

At the request of a faculty member a library may photocopy and place on reserve excerpts from copyrighted material in its collection in accordance with guidelines similar to the Classroom Guidelines for face-to-face teaching discussed earlier in this handbook. SUNY Cortland interprets these guidelines to apply to the library reserve shelf to the extent that it functions as an extension of classroom readings or reflects an individual student's right to photocopy for his/her personal scholastic use under the doctrine of fair use. In general, the library may photocopy materials for reserve room use for the convenience of students both in preparing class assignments and in pursuing informal education activities which higher education requires, such as advanced independent study and research.

If the faculty request asks for only one copy to be placed on reserve, the library may photocopy an entire article, or an entire chapter from a book, or an entire poem. Requests for multiple copies on reserve should meet the following guidelines:

a) the amount of material should be reasonable in relation to the total amount of material assigned for one term of a course while taking into account the nature of the course, its subject matter and level;

b) the number of copies should be reasonable in light of the number of students enrolled, the difficulty and timing of assignments, and the number of other courses which may assign the same material;

c) the material should contain a notice of copyright;

d) the effect of photocopying the material should not be detrimental to the market for the work. (In general, the library should own at least one copy of the work and should not copy an entire work or journal issue.)

For example, a faculty member may place on reserve as a supplement to the course textbook a reasonable number of copies or articles from academic periodicals or chapters from books.

A reasonable number of copies will in most instances be less than six, but factors such as the length or difficulty of the assignment, the number of enrolled students and the length of time allowed for completion of the assignment may permit more in unusual circumstances.

In addition the faculty member may also request that multiple copies of photocopied copyrighted material be placed on the reserve shelf if there is insufficient time to obtain permission from the copyright owner. For example, a professor may place on reserve several photocopies of an entire article from a recent copy of TIME magazine or the NEW YORK TIMES in lieu of distributing a copy to each member of the class.

Please keep in mind: if there is any doubt as to whether a particular instance of photocopying can be considered fair use in the reserve room context, the copyright owner's permission should be sought. (See appendix A for an example of a permission letter.)

Copying for Other Library Uses

Libraries may make a single facsimile of unpublished works existing in their own collection for purposes of preservation and security. Libraries may also duplicate in facsimile form a published copyrighted work for the purposes of replacement of lost, stolen, damaged of deteriorating copies. Before making the copy, the library must make a reasonable effort to obtain an unused replacement at a fair price.

The publisher or copyright holder should be contacted, an authorized reproducing service could be used, or out-of-print dealers could be queried to determine the availability of a replacement copy. The definition of a fair price could be considered as a price close to the price of the original item, unless the item is rare. For rare items, the market price would be considered a fair price.

A library may make a single copy of an article or other contribution to a collection or periodical issue for an individual if the following conditions are met:

-- the copy becomes the property of the individual user;

-- the library must have no notice that the copy will be used for any purpose other than private study, scholarship or research;

-- the library must prominently display copyright warning signs on photocopying equipment.

Interlibrary Loan

The Copyright Act specifically authorizes the provisions of photocopies in lieu of interlibrary loans for single photocopies of articles from periodicals or collections, or of small parts of other copyrighted works, without copyrighted liability. This right is limited, however, by complicated language in the law reflecting a carefully drawn congressional compromise. One half of the compromise is a provision stating that the right does not extend to the "systematic" reproduction and distribution of copies. The other half is a proviso making it clear that an activity will not be considered "systematic" as long as the library or archives receiving the reproductions does not do so in such "aggregate quantities as to substitute for a subscription to or purchase of [the] work."

Prior to the enactment of the Copyright Act, library and publisher organizations developed a set of guidelines to assist in interpreting the quoted language of the interlibrary loan proviso.

These guidelines were negotiated with the assistance of the National Commission on New Technological Uses of Copyrighted Works (CONTU), and were incorporated into the Congressional conference committee report on the Copyright Act. The CONTU guidelines give the following interpretation:

-- with respect to a periodical title (not a given issue of a periodical), the language of the proviso means filling a request of a library or archives within any calendar year for six or more copies of articles published in the periodical within five years prior to the date of the request (periodical articles that are more than five years old were generally considered to be so infrequently requested that they are not covered by the guidelines). This is often referred to as the Suggestion of Five;

-- with respect to all other material, the language of the proviso means filling requests of a single requesting entity within any calendar year for six or more copies of any given copyrighted work.

The law recognizes that photocopies may be provided in lieu of interlibrary loans. In the typical case, the provision of the photocopy serves exactly the same purpose as a loan of the work itself, and simply reduces the risk of loss or damage in transit and reduces the transaction cost.

Photocopying and Duplication Which Require Permission

a. Repetitive Copying: the classroom or reserve use of photocopied materials in multiple courses or successive years will normally require advance permission from the copyright owner;

b. Copying for Profit: Faculty should not charge students more than the actual cost of photocopying the materials;

c. Consumable Work: The duplication of works that are consumed in the classroom, such as standardized tests, exercises, and workbooks, normally requires permission from the copyright owner;

d. Creation of Anthologies as Basic Text Material for a Course:

Creation of a collective work or anthology by photocopying a number of copyrighted articles and excerpts to be purchased and used together as the basic text for a course will in most instances require the permission of the copyright holders. Such photocopying is more likely to be considered as a substitute for purchase of a book and thus less likely to be deemed fair use.

IX. Computers and Software

In recent years the College has acquired hundreds of standalone microcomputers. These devices are intended largely for use by a single individual at a time, though they are extremely adaptable and operate in a variety of environments and perform a number of different functions. With the dispersal of microcomputers throughout the College, the use of, and demand for, computer software has increased dramatically. The nature and cost of this electronic technology, and the ease with which it can be reproduced, raises crucial issues about the educational uses of computer software and the rights and responsibilities of educators and administrators to honor and enforce copyright protection of it.

Since the applications for using microcomputers are so diverse, and since the applications are chiefly for single users at a time, responsibility for honoring the copyrights of software manufacturers is in the hands of many individual users and not easily managed by the College. Furthermore, the legal distinction of the "owner", "purchaser", and "operator" of software acquired by the College becomes uncertain under conditions of serial use with software borrowed from the College for authorized applications.

The College maintains interest in establishing and protecting its rights as lawful owner of any and all software purchased or otherwise acquired for use on its equipment in the ordinary conduct of its mission. At the same time the College also supports and protects the legal rights of software manufacturers, licensors, and distributors, insofar as the rights and privileges of the College are not abridged.

In exploring the policy issues surrounding copyright and computer software, it is important to understand several sections of the Copyright Act in some detail.

Copyright Protection of Computer Software

The Copyright Act gives significant protection to the creators of computer software. The copyright owner of software has the same exclusive rights as the copyright owner of any other creative and original work in some other format: reproduction adaptation, distribution, public performance, and public display (see Section VII of this Handbook for a discussion of these exclusive rights).

Audiovisual Materials

Videotapes--Off-Air Taping Guidelines

The following guidelines reflect a negotiated consensus as to the application of "fair use" to the recording, retention and use of television broadcast programs for educational purposes. They specify periods of retention and use of off-air recordings in classrooms and similar places devoted to instruction and for home-bound instruction. The purpose of establishing these guidelines is to provide standards for both owners and users of copyrighted television programs.

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

b. A broadcast program may be recorded off-air simultaneously with broadcast transmission (including simultaneous cable retransmission) and retained by a non-profit educational institution for a period not to exceed the first forty-five (45) consecutive calendar days after date of recording. Upon conclusion of this retention period, all off-air recordings must be erased or destroyed immediately. "Broadcast programs" are television programs transmitted by television stations for reception by the general public without charge.

c. Off-air recordings may be used once by individual teachers in the course of relevant teaching activities, and repeated once only when instructional reinforcement is necessary, in classrooms and similar places devoted to instruction within a single building, cluster or campus, as well as in the homes of students receiving formalized home instruction, during the first ten (10) consecutive school days in the forty-five (45) day calendar day retention period. "School days" are school session days -- not counting weekends, holidays, vacations, examination periods, or other scheduled interruptions -- within the forty-five (45) calendar day retention period.

d. Off-air recordings may be made only at the request of and used by individual teachers, and may not be regularly recorded in anticipation of requests. No broadcast program may be recorded off-air more than once at the request of the same teacher, regardless of the number of times the program may be broadcast.

e. A limited number of copies may be reproduced from each off-air recording to meet the legitimate needs of teachers under these guidelines. Each such additional copy shall be subject to all provisions governing the original recording.

f. After the first ten (10) consecutive school days, off-air recordings may be used up to the forty-five (45) calendar day retention period only for teacher evaluation purposes, i.e., to determine whether or not to include the broadcast program in the teaching curriculum, and may not be used in the recording institution for student exhibition or any other non-evaluation purpose without authorization.

g. Off-air recordings need not be used in their entirety, but the recorded programs may not be altered from their original content. Off-air recordings may not be physically or electronically combined or merged to constitute teaching anthologies or compilations.

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

i. Educational institutions are expected to establish appropriate control procedures to maintain the integrity of these guidelines. See Appendix F for SUNY Cortland Off-Air Recording Policy.

X. Digital Images, Distance Learning and Multimedia

Digital imagery, distance learning and multimedia technologies have pushed the limits of copyright and fair use. In 1994 the Conference on Fair Use (CONFU) was formed to present guidelines on fair use in these areas. Below are those guidelines, revised December 1997.

1. EDUCATIONAL FAIR USE GUIDELINES FOR DIGITAL IMAGES:

Fair use is a legal principle that provides certain limitations on the exclusive rights of copyright holders. The purpose of these guidelines is to provide guidance on the application of fair use principles by educational institutions, educators, scholars and students who wish to digitize copyrighted visual images under fair use rather than by seeking authorization from the copyright owners for non-commercial educational purposes. These guidelines apply to fair use only in the context of copyright.

There is no simple test to determine what is fair use. Section 107 of the Copyright Act sets forth the four fair use factors which should be assessed in each instance, based on the particular facts of a given case, to determine whether a use is a "fair use": 1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes, 2) the nature of the copyrighted work, 3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and 4) the effect of the use upon the potential market for or value of the copyrighted work. While only the courts can authoritatively determine whether a particular use is fair use, these guidelines represent the endorsers' consensus of conditions under which fair use should generally apply and examples of when permission is required. Uses that exceed these guidelines may or may not be fair use. The endorsers also agree that the more one exceeds these guidelines, the greater the risk that fair use does not apply.

The limitations and conditions set forth in these guidelines do not apply to works in the public domain--such as U.S. government works or works on which copyright has expired for which there are no copyright restrictions--or to works for which the individual or institution has obtained permission for the particular use. Also, license agreements may govern the uses of some works and users should refer to the applicable license terms for guidance.

Those who developed these guidelines met for an extended period of time and the result represents their collective understanding in this complex area. Because digital technology is in a dynamic phase, there may come a time when it is necessary to review the guidelines. Nothing in these guidelines should be construed to apply to the fair use privilege in any context outside of educational and scholarly uses of digital images. These guidelines do not cover non-educational or commercial digitization or use at any time, even by non-profit educational institutions. These guidelines are not intended to cover the fair use of copyrighted works in other educational contexts such as educational multimedia projects, distance education, or electronic reserves, which may be addressed in other fair use guidelines.

This Preamble is an integral part of these guidelines and should be included whenever the guidelines are reprinted or adopted by organizations and educational institutions. Users are encouraged to reproduce and distribute these guidelines freely without permission; no copyright protection of these guidelines is claimed by any person or entity.

1.2 Background: Rights in Visual Images.

As photographic and electronic technology has advanced, the making of high-quality reproductions of visual images has become easier, cheaper, and more widely accessible. However, the fact that images may be easily available does not automatically mean they can be reproduced and reused without permission. Confusion regarding intellectual property rights in visual images arises from the many ways that images are created and the many sources that may be related to any particular image. Clearing permission, when necessary, requires identifying the holder of the applicable rights. Determining all the holders of the rights connected with an image requires an understanding of the source of the image, the content portrayed, and the creation of the image, both for original visual images and for reproductions of images.

Visual images can be original works or reproductions of other works; in some cases, original works may incorporate reproductions of other works as well. Often, a digital image is several generations removed from the visual image it reproduces. For example, a digital image of a painting may have been scanned from a slide, which was copied from a published book that contained a printed reproduction of the work of art; this reproduction may have been made from a color transparency photographed directly from the original painting. There may be intellectual property rights in the original painting, and each additional stage of reproduction in this chain may involve another layer of rights.

A digital image can be an original visual image, a reproduction, a published reproduction, or a copy of a published reproduction. An original visual image is a work of art or an original work of authorship (or a part of a work), fixed in digital or analog form and expressed in a visual medium. Examples include graphic, sculptural, and architectural works, as well as stills from motion pictures or other audiovisual works. A reproduction is a copy of an original visual image in digital or analog form. The most common forms of reproductions are photographic, including prints, 35mm slides, and color transparencies. The original visual image shown in a reproduction is often referred to as the "underlying work." Digital images can be reproductions of either original visual images or of other reproductions. A published reproduction is a reproduction of an original visual image appearing in a work distributed in copies and made available to the public by sale or other transfer of ownership, or by rental, lease, or lending. Examples include a plate in an exhibition catalog that reproduces a work of art, and a digital image appearing in a CD-ROM or online. A copy of a published reproduction is a subsequent copy made of a published reproduction of an original visual image, for example, a 35mm slide which is a copy of an image in a book.

The rights in images in each of these layers may be held by different rightsholders; obtaining rights to one does not automatically grant rights to use another, and therefore all must be considered when analyzing the rights connected with an image. Rights to use images will vary depending not only on the identities of the layers of rightsholders, but also on other factors such as the terms of any bequest or applicable license.

1.3 Applicability of These Guidelines.

These guidelines apply to the creation of digital images and their use for educational purposes. The guidelines cover (1) pre-existing analog image collections, and (2) newly acquired analog visual images. These guidelines do not apply to images acquired in digital form, or to images in the public domain, or to works for which the user has obtained the relevant and necessary rights for the particular use.

Only lawfully acquired copyrighted analog images (including original visual images, reproductions, published reproductions, and copies of published reproductions) may be digitized pursuant to these guidelines. These guidelines apply only to educational institutions, educators, scholars, students, and image collection curators engaging in instructional, research, or scholarly activities at educational institutions for educational purposes.

1.4 Definitions.

Educational institutions are defined as nonprofit organizations whose primary purpose is supporting the nonprofit instructional, research, and scholarly activities of educators, scholars, and students. Examples of educational institutions include K-12 schools, colleges, and universities; libraries, museums, and hospitals. Other nonprofit institutions also are considered educational institutions under this definition when they engage in nonprofit instructional, research, or scholarly activities for educational purposes. Educational purposes are defined as non-commercial instruction or curriculum-based teaching by educators to students at nonprofit educational institutions, and research and scholarly activities are defined as planned non-commercial study or investigation directed toward making a contribution to a field of knowledge and non-commercial presentation of research findings at peer conferences, workshops, or seminars.

Educators are faculty, teachers, instructors, curators, librarians, archivists, or professional staff who engage in instructional, research, or scholarly activities for educational purposes as their assigned responsibilities at educational institutions; independent scholars also are considered educators under this definition when they offer courses at educational institutions. Students are participants in instructional, research, or scholarly activities for educational purposes at educational institutions.

A digital image is a visual work stored in binary code (bits and bytes). Examples include bitmapped images (encoded as a series of bits and bytes each representing a particular pixel or part of the image) and vector graphics (encoded as equations and/or algorithms representing lines and curves). An analog image collection is an assemblage of analog visual images systematically maintained by an educational institution for educational purposes in the form of slides, photographs, or other stand-alone visual media. A pre-existing analog image collection is one in existence as of [December 31, 1996]. A newly acquired analog visual image is one added to an institution's collection after [December 31, 1996].

A visual online catalog is a database consisting of thumbnail images of an institution's lawfully acquired image collection, together with any descriptive text including, for example, provenance and rights information that is searchable by a number of fields, such as the source. A thumbnail image, as used in a visual online catalog or image browsing display to enable visual identification of records in an educational institution's image collection, is a small scale, typically low resolution, digital reproduction which has no intrinsic commercial or reproductive value.

2. IMAGE DIGITIZATION AND USE BY EDUCATIONAL INSTITUTIONS:

This Section covers digitization by educational institutions of newly acquired analog visual images and Section 6 covers digitization of pre-existing analog image collections. Refer to the applicable section depending on whether you are digitizing newly acquired or pre-existing analog visual works.

2.1 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.

2.2 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.

2.3 Access, Display, and Distribution on an Institution's Secure Electronic Network.

Subject to the time limitations in Section 2.4, 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.

2.3.1 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.

2.3.2 Course compilations of digital images: An educational institution may display an educator's compilation of digital images (see also, Section 3.1.2) 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.

2.3.3 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.

2.4 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 which are digitized from newly acquired analog visual images under these guidelines, as long as the retention and use comply with the following conditions:

2.4.1 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 (see Section 1.1).

2.4.2 Where the rightsholder of an image is unknown, a digitized image may be used for up to three (3) years from first use, provided that a reasonable inquiry (see Section 5.2) 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 (see Section 1.1).

3. USE BY EDUCATORS, SCHOLARS, AND STUDENTS:

Subject to the time limitations in Section 2.4, images digitized under these guidelines may be used by educators, scholars, and students as follows:

3.1 Educator Use of Images Digitized Under These Guidelines.

3.1.1 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.

3.1.2 An educator may compile digital images for display on the institution's secure electronic network (see also, Section 2.3.2) 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.

3.2 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.

3.3 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 (see Section 1.1).

3.4 Student Use of Images Digitized Under These Guidelines.

Students may:

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

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

- 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 (see Section 1.1).

4. 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.

5. IMPORTANT REMINDERS AND FAIR USE LIMITATIONS UNDER THESE

GUIDELINES:

5.1 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 (see Section 5.2). Rightsholders and others who are contacted are encouraged to respond promptly to inquiries.

5.2 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 re-presenting image creators in the appropriate medium.

5.3 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.

5.4 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.

5.5 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.

5.6 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.

5.7 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.

5.8 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.

6. TRANSITION PERIOD FOR PRE-EXISTING ANALOG IMAGE COLLECTIONS:

6.1 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 (see Section 5.2) 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.

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

6.2.1 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.

6.2.2 Digitization from preexisting analog image collections is subject to limitations on portions from single sources such as published compilations or motion pictures (see Section 5.5). Section 6 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.

6.2.3 If, after a reasonable inquiry (see Section 5.2), 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 (see Section 1.1). 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 (see Section 1.1).

PERFORMANCE AND DISPLAY OF AUDIOVISUAL AND OTHER COPYRIGHTED WORKS

1. INTRODUCTION

1.1 Preamble

Fair use is a legal principle that provides certain limitations on the exclusive rights of copyright holders. The purpose of these guidelines is to provide guidance on the application of fair use principles by educational institutions, educators, scholars and students who wish to use copyrighted works for distance education under fair use rather than by seeking authorization from the copyright owners for non-commercial purposes. The guidelines apply to fair use only in the context of copyright.

There is no simple test to determine what is fair use. Section 107 of the Copyright Act sets forth the four fair use factors which should be considered in each instance, based on the particular facts of a given case, to determine whether a use is a "fair use": (1) the purpose and character of the use, including whether use is of a commercial nature or is for nonprofit educational purposes, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and (4) the effect of the use upon the potential market for or value of the copyrighted work.

While only the courts can authoritatively determine whether a particular use is a fair use, these guidelines represent the endorsers' consensus of conditions under which fair use should generally apply and examples of when permission is required. Uses that exceed these guidelines may or may not be fair use. The endorsers also agree that the more one exceeds these guidelines, the greater the risk that fair use does not apply.

The limitations and conditions set forth in these guidelines do not apply to works in the public domain -- such as U.S. government works or works on which the copyright has expired for which there are no copyright restrictions -- or to works for which the individual or institution has obtained permission for the particular use. Also, license agreements may govern the uses of some works and users should refer to the applicable license terms for guidance.

The participants who developed these guidelines met for an extended period of time and the result represents their collective understanding in this complex area. Because digital technology is in a dynamic phase, there may come a time when it is necessary to revise these guidelines. Nothing in these guidelines should be construed to apply to the fair use privilege in any context outside of educational and scholarly uses of distance education. The guidelines do not cover non-educational or commercial digitization or use at any time, even by nonprofit educational institutions. The guidelines are not intended to cover the fair use of copyrighted works in other educational contexts such as educational multimedia projects, digital images, or electronic reserves which may be addressed in other fair use guidelines.

This Preamble is an integral part of these guidelines and should be included whenever the guidelines are reprinted or adopted by organizations and educational institutions. Users are encouraged to reproduce and distribute these guidelines freely without permission; no copyright

protection of these guidelines is claimed by any person or entity.

1.2 Background

Section 106 of the Copyright Act defines the right to perform or display a work as an exclusive right of the copyright holder. The Act also provides, however, some exceptions under which it is not necessary to ask the copyright holder's permission to perform or display a work. One is the fair use exception contained in Section 107, which is summarized in the preamble. Another set of exceptions, contained in Sections 110(1)-(2), permit instructors and students to perform or display copyrighted materials without permission from the copyright holder under certain carefully defined conditions.

Section 110(1) permits teachers and students in a nonprofit educational institution to perform or display any copyrighted work in the course of face-to-face teaching activities. In face-to-face instruction, such teachers and students may act out a play, read aloud a poem, display a cartoon or a slide, or play a videotape so long as the copy of the videotape was lawfully obtained. In essence, Section 110(1) permits performance and display of any kind of copyrighted work, and even a complete work, as a part of face-to-face instruction.

Section 110(2) permits performance of a non-dramatic literary or musical work or display of any work as a part of a transmission in some distance learning contexts, under the specific conditions set out in that Section. Section 110(2) does not permit performance of dramatic or audiovisual works as a part of a transmission. The statute further requires that the transmission be directly related and of material assistance to the teaching content of the transmission and that the transmission be received in a classroom or other place normally devoted to instruction or by persons whose disabilities or special circumstances prevent attendance at a classroom or other place normally devoted to instruction.

The purpose of these guidelines is to provide guidance for the performance and display of copyrighted works in some of the distance learning environments that have developed since the enactment of Section 110 and that may not meet the specific conditions of Section 110(2). They permit instructors who meet the conditions of these guidelines to perform and display copyrighted works as if they were engaged in face-to-face instruction. They may, for example, perform an audiovisual work, even a complete one, in a one-time transmission to students so long as they meet the other conditions of these guidelines. They may not, however, allow such transmissions to result in copies for students unless they have permission to do so, any more than face-to-face instructors may make copies of audiovisual works for their students without permission.

The developers of these guidelines agree that these guidelines reflect the principles of fair use in combination with the specific provisions of Sections 110(1)-(2). In most respects, they expand the provisions of Section 110(2). In some cases, students and teachers in distance learning situations may want to perform and display only small portions of copyrighted works that may be permissible under the fair use doctrine even in the absence of these guidelines. Given the specific limitations set out in Section 110(2), however, the participants believe that there may be a higher burden of demonstrating that fair use under Section 107 permits performance or display of more than a small portion of a copyrighted work under circumstances not specifically authorized by Section 110(2).

1.3 Distance Learning in General

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 video disk, satellite-based and computer networks.

2. APPLICABILITY AND ELIGIBILITY

2.1 Applicability of the Guidelines

These guidelines apply to the performance of lawfully acquired copyrighted works not included under 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 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. Although the participants believe fair use of copyrighted works applies in some aspects of such instruction, they did not develop fair use guidelines to cover these situations because the area is so unsettled. The technology is rapidly developing, educational institutions are just beginning to experiment with these courses, and publishers and other creators of copyrighted works are in the early stages of developing materials and experimenting with marketing strategies for computer network delivery of distance learning materials. Thus, consideration of whether fair use guidelines are needed for asynchronous computer network delivery of distance learning courses perhaps should be revisited in three to five years.

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.

2.2 Eligibility

2.2.1 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.

2.2.2 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.

3. WORKS PERFORMED FOR INSTRUCTION

3.1 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.

4. TRANSMISSION AND RECEPTION

4.1 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.

4.2 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.

5. LIMITATIONS

5.1 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.

5.2 Reproduction And Access To Copies

5.2.1 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 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.

5.2.2 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 Section 112(b).

6. MULTIMEDIA

6.1 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.

7. EXAMPLES OF WHEN PERMISSION IS REQUIRED

7.1 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.

7.2. 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.

7.3 Uncontrolled Access To Classes: An institution (agency) wants to offer a course or program that contains the performance of copyrighted works to non-employees.

7.4 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 Section 110(2). (It also could delete the portion of the recorded class session that contains the performance).

1. INTRODUCTION

1.1 Preamble

Fair use is a legal principle that provides certain limitations on the exclusive rights of copyright holders. The purpose of these guidelines is to provide guidance on the application of fair use principles by educators, scholars and students who develop multimedia projects using portions of copyrighted works under fair use rather than by seeking authorization for non-commercial educational uses. These guidelines apply only to fair use in the context of copyright and to no other rights.

There is no simple test to determine what is fair use. Section 107 of the Copyright Act sets forth the four fair use factors which should be considered in each instance, based on particular facts of a given case, to determine whether a use is a "fair use": (1) the purpose and character of use, including whether such use is of a commercial nature or is for nonprofit educational purposes, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and (4) the effect of the use upon the potential market for or value of the copyrighted work.

While only the courts can authoritatively determine whether a particular use is fair use, these guidelines represent the endorsers' consensus of conditions under which fair use should generally apply and examples of when permission is required. Uses that exceed these guidelines may or may not be fair use. The endorsers also agree that the more one exceeds these guidelines, the greater the risk that fair use does not apply.

The limitations and conditions set forth in these guidelines do not apply to works in the public domain -- such as U.S. Government works or works on which copyright has expired for which there are no copyright restrictions -- or to works for which the individual or institution has obtained permission for the particular use. Also, license agreements may govern the uses of some works and users should refer to the applicable license terms for guidance.

The participants who developed these guidelines met for an extended period of time and the result represents their collective understanding in this complex area. Because digital technology is in a dynamic phase, there may come a time when it is necessary to review the guidelines. Nothing in these guidelines shall be construed to apply to the fair use privilege in any context outside of educational and scholarly uses of educational multimedia projects. These guidelines do not cover non-educational or commercial digitization or use at any time, even by non-profit educational institutions. These guidelines are not intended to cover fair use of copyrighted works in other educational contexts such as digital images or archives, distance education, or electronic reserves, which may be addressed in other fair use guidelines.

This Preamble is an integral part of these guidelines and should be included whenever the guidelines are reprinted or adopted by organizations and educational institutions. Users are encouraged to reproduce and distribute these guidelines freely without permission; no copyright protection of these guidelines is claimed by any person or entity.

1.2 Background

These guidelines clarify the application of fair use of copyrighted works as teaching methods are adapted to new learning environments. Educators have traditionally brought copyrighted books, videos, slides, sound recordings and other media into the classroom, along with accompanying projection and playback equipment. Multimedia creators integrated these individual instructional resources with their own original works in a meaningful way, providing compact educational tools that allow great flexibility in teaching and learning. Material is stored so that it may be retrieved in a nonlinear fashion, depending on the needs or interests of learners. Educators can use multimedia projects to respond spontaneously to students' questions by referring quickly to relevant portions. In addition, students can use multimedia projects to pursue independent study according to their needs or at a pace appropriate to their capabilities. Educators and students want guidance about the application of fair use principles when creating their own multimedia projects to meet specific instructional objectives.

1.3 Applicability of These Guidelines (Certain basic terms are identified in bold and defined in this section.)

These guidelines apply to the use, without permission, of portions of lawfully acquired copyrighted works in educational multimedia projects which are created by educators or students as part of a systematic learning activity by nonprofit educational institutions. Educational multimedia projects created under these guidelines incorporate students' or educators' original material, such as course notes or commentary, together with various copyrighted media formats including but not limited to, motion media, music, text material, graphics, illustrations, photographs and digital software which are combined into an integrated presentation. Educational institutions are defined as nonprofit organizations whose primary focus is supporting research and instructional activities of educators and students for noncommercial purposes.

For the purposes of these guidelines, educators include faculty, teachers, instructors and others who engage in scholarly, research and instructional activities for educational institutions. The copyrighted works used under these guidelines are lawfully acquired if obtained by the institution or individual through lawful means such as purchase, gift or license agreement but not pirated copies. Educational multimedia projects which incorporate portions of copyrighted works under these guidelines may be used only for educational purposes in systematic learning activities including use in connection with non-commercial curriculum-based learning and teaching activities by educators to students enrolled in courses at nonprofit educational institutions or otherwise permitted under Section 3. While these guidelines refer to the creation and use of educational multimedia projects, readers are advised that in some instances other fair use guidelines such as those for off-air taping may be relevant.

2. PREPARATION OF EDUCATIONAL MULTIMEDIA PROJECTS USING PORTIONS OF COPYRIGHTED WORKS

These uses are subject to the Portion Limitations listed in Section 4. They should include proper attribution and citation as defined in Sections 6.2.

2.1 By Students:

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

2.2 By Educators for Curriculum-Based Instruction:

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

3. PERMITTED USES OF EDUCATIONAL MULTIMEDIA PROJECTS CREATED

UNDER THESE GUIDELINES

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

3.1 Student Use:

Students may perform and display their own educational multimedia projects created under Section 2 of these guidelines for educational uses in the course for which they were created and may use them in their own portfolios as examples of their academic work for later personal uses such as job and graduate school interviews.

3.2 Educator Use for Curriculum-Based Instruction:

Educators may perform and display their own educational multimedia projects created under Section 2 for curriculum-based instruction to students in the following situations:

3.2.1 for face-to-face instruction,

3.2.2 assigned to students for directed self-study,

3.2.3 for remote instruction to students enrolled in curriculum-based courses and located at remote sites, provided over the educational institution's secure electronic network in real-time, or for after-class review or directed self-study, provided there are technological limitations on access to the network and educational multimedia project (such as a password or PIN) and provided further that the technology prevents the making of copies of copyrighted material.

If the educational institution's network or technology used to access the educational multimedia project created under Section 2 of these guidelines cannot prevent duplication of copyrighted material, students or educators may use the multimedia educational projects over an otherwise secure network for a period of only 15 days after its initial real-time remote use in the course of instruction or 15 days after its assignment for directed self-study. After that period, one of the two use copies of the educational multimedia project may be placed on reserve in a learning resource center, library or similar facility for on-site use by students enrolled in the course. Students shall be advised that they are not permitted to make their own copies of the educational multimedia project.

3.3 Educator Use for Peer Conferences:

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

3.4 Educator Use for Professional Portfolio

Educators may retain educational multimedia projects created under Section 2 of these guidelines in their personal portfolios for later personal uses such as tenure review or job interviews.

4. LIMITATIONS - TIME, PORTION, COPYING AND DISTRIBUTION

The preparation of educational multimedia projects incorporating copyrighted works under Section 2, and the use of such projects under Section 3, are subject to the limitations noted below.

4.1 Time Limitations

Educators may use their educational multimedia projects created for educational purposes under Section 2 of these guidelines for teaching courses, for a period of up to two years after the first instructional use with a class. Use beyond that time period, even for educational purposes, requires permission for each copyrighted portion incorporated in the production. Students may use their educational multimedia projects as noted in Section 3.1.

4.2 Portion Limitations

Portion limitations mean the amount of a copyrighted work that can reasonably be used in educational multimedia projects under these guidelines regardless of the original medium from which the copyrighted works are taken. In the aggregate means the total amount of copyrighted material from a single copyrighted work that is permitted to be used in an educational multimedia project without permission under these guidelines. These limitations apply cumulatively to each educator's or student's multimedia project(s) for the same academic semester, cycle or term. All students should be instructed about the reasons for copyright protection and the need to follow these guidelines. It is understood, however, that students in kindergarten through grade six may not be able to adhere rigidly to the portion limitations in this section in their independent development of educational multimedia projects. In any event, each such project retained under Sections 3.1 and 4.3 should comply with the portion limitations in this section.

4.2.1 Motion Media

Up to 10% or 3 minutes, whichever is less, in the aggregate of a copyrighted motion media work may be reproduced or otherwise incorporated as part of an educational multimedia project created under Section 2 of these guidelines.

4.2.2 Text Material

Up to 10% or 1000 words, whichever is less, in the aggregate of a copyrighted work consisting of text material may be reproduced or otherwise incorporated as part of an educational multimedia project created under Section 2 of these guidelines. An entire poem of less than 250 words may be used, but no more than three poems by one poet, or five poems by different poets from any anthology may be used. For poems of greater length, 250 words may be used but no more than three excerpts by a poet, or five excerpts by different poets from a single anthology may be used.

4.2.3 Music, Lyrics, and Music Video

Up to 10%, but in no event more than 30 seconds, of the music and lyrics from an individual musical work (or in the aggregate of extracts from an individual work), whether the musical work is embodied in copies, or audio or audiovisual works, may be reproduced or otherwise incorporated as a part of a multimedia project created under Section 2. Any alterations to a musical work shall not change the basic melody or the fundamental character of the work.

4.2.4 Illustrations and Photographs

The reproduction or incorporation of photographs and illustrations is more difficult to define with regard to fair use because fair use usually precludes the use of an entire work. Under these guidelines a photograph or illustration may be used in its entirety but no more than 5 images by an artist or photographer may be reproduced or otherwise incorporated as part of an educational multimedia project created under Section 2. When using photographs and illustrations from a published collective work, not more than 10% or 15 images, whichever is less, may be reproduced or otherwise incorporated as part of an educational multimedia project created under Section 2.

4.2.5 Numerical Data Sets

Up to 10% or 2500 fields or cell entries, whichever is less, from a copyrighted database or data table may be reproduced or otherwise incorporated as part of an educational multimedia project created under Section 2 of these guidelines. A field entry is defined as a specific item of information, such as a name or Social Security number, in a record of a database file. A cell entry is defined as the intersection where a row and a column meet on a spreadsheet.

4.3 Copying and Distribution Limitations

Only a limited number of copies, including the original, may be made of an educator's educational multimedia project. For all of the uses permitted by Section 3, there may be no more that two use copies only one of which may be placed on reserve as described in Section 3.2.3. An additional copy may be made for preservation purposes but may only be used or copied to replace a use copy that has been lost, stolen, or damaged. In the case of a jointly created educational multimedia project, each principal creator may retain one copy but only for the purposes described in Sections 3.3 and 3.4 for educators and in Section 3.1 for students.

5. EXAMPLES OF WHEN PERMISSION IS REQUIRED

5.1 Using Multimedia Projects for Non-Educational or Commercial Purposes

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

5.2 Duplication of Multimedia Projects Beyond Limitations Listed in These Guidelines

Even for educational uses, educators and students must seek individual permissions for all copyrighted works incorporated in their personally created educational multimedia projects before replicating or distributing beyond the limitations listed in Section 4.3.

5.3 Distribution of Multimedia Projects Beyond Limitations Listed in These Guidelines

Educators and students may not use their personally created educational multimedia projects over electronic networks, except for uses as described in Section 3.2.3, without obtaining permissions for all copyrighted works incorporated in the program.

6. IMPORTANT REMINDERS

6.1 Caution in Downloading Material from the Internet

Educators and students are advised to exercise caution in using digital material downloaded from the Internet in producing their own educational multimedia projects, because there is a mix of works protected by copyright and works in the public domain on the network. Access to works on the Internet does not automatically mean that these can be reproduced and reused without permission or royalty payment and, furthermore, some copyrighted works may have been posted to the Internet without authorization of the copyright holder.

6.2 Attribution and Acknowledgment

Educators and students are reminded to credit the sources and display the copyright notice and copyright ownership information if this is shown in the original source, for all works incorporated as part of educational multimedia projects prepared by educators and students, including those prepared under fair use. Crediting the source must adequately identify the source of the work, giving a full bibliographic description where available (including author, title, publisher, and place and date of publication). The copyright ownership information includes the copyright notice (year of first publication and name of the copyright holder).

The credit and copyright notice information may be combined and shown in a separate section of the educational multimedia project (e.g., credit section) except for images incorporated into the project for the uses described in Section 3.2.3. In such cases, the copyright notice and the name of the creator of the image must be incorporated into the image when, and to the extent, such information is 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.

6.3 Notice of Use Restrictions

Educators and students are advised that they must include on the opening screen of their multimedia project and any accompanying print material a notice that certain materials are included under the fair use exemption of the U.S. Copyright Law and have been prepared according to the educational multimedia fair use guidelines and are restricted from further use.

6.4 Future Uses Beyond Fair Use

Educators and students are advised to note that if there is a possibility that their own educational multimedia project incorporating copyrighted works under fair use could later result in broader 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.

6.5 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.

6.6 Reproduction or Decompilation of Copyrighted Computer Programs

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

6.7 Licenses and Contracts

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

Appendix A: Writing for Permission and Sample Letter

How to Obtain Permission

When a use of photocopied material requires that you request permission, you should communicate complete and accurate information to the copyright owner. The American Association of Publishers suggests that the following information be included in a permission request letter in order to expedite the process:

1. Title, author and/or editor, and edition of materials to be duplicated.

2. Exact material to be used, giving amount, page numbers, chapters and, if possible, a photocopy of the material.

3. Number of copies to be made.

4. Use to be made of duplicated materials.

5. Form of distribution (classroom, newsletter, etc).

6. Whether or not the material is to be sold.

7. Type of reprint (ditto, photography, offset, typeset).

The request should be sent, together with a self-addressed return envelope, to the permissions department of the publisher in question. If the address of the publisher does not appear at the front of the material, it may be readily obtained in a publication entitled Books in Print, published by R.R.Bowker and available at Memorial Library.

The process of granting permission requires time for the publisher to check the status of the copyright and to evaluate the nature of the request. It is advisable, therefore, to allow enough lead time to obtain permission before the materials are needed. In some instances, the publisher may assess a fee for the permission. It is not appropriate to pass this fee on to the students who receive copies of the photocopied material. A sample letter follows this page.