TABLE OF CONTENTS
- COPYRIGHT LAW BASICS
- What Works are Protected by Copyright?
- What Works are Not Protected by Copyright?
- What Rights are Granted by Copyright Law?
- How is Copyright Protection Obtained?
- What is Copyright Infringement?
- How Do I Comply With the Copyright Law?
- FAIR USE
- What is Fair Use?
- The Four Factors
- How Do I Apply the Fair Use Factors?
- CLASSROOM GUIDELINES
- Classroom Guidelines: General Guidelines
- Classroom Guidelines: Copying of Printed Text Materials
- Classroom Guidelines: Copying of Music
- Classroom Guidelines: Copying and Use of Videotapes and DVDs
- Classroom Guidelines: Creation and Use of Multimedia Projects
- CONFU GUIDELINES
- CONFU Fair Use Guidelines for Educational Multimedia
- Applicability of These Guidelines
- Preparation of Educational Multimedia Projects Using Portions of Copyrighted Works
- By Students
- By Educators for Curriculum-Based Instruction
- Permitted Uses of Educational Multimedia Programs Created Under These Guidelines
- Student Use
- Educator Use for Curriculum-Based Instruction
- Educator Use for Peer Conferences
- Educator Use for Professional Portfolio
- Limitations–Time, Portion, Copying and Distribution
- Time Limitations
- Portion Limitations
- Copying and Distribution Limitations
- Examples of When Permission is Required
- Using Multimedia Projects for Non-Educational or Commercial Purposes
- Duplication of Multimedia Projects Beyond Limitations Listed in These Guidelines
- Distribution of Multimedia Projects Beyond Limitations Listed in These Guidelines
- Important Reminders
- Caution in Downloading Material from the Internet
- Attribution and Acknowledgement
- Notice of Use Restrictions
- Future Uses Beyond Fair Use
- Integrity of Copyrighted Works: Alterations
- Reproduction or Decompilation of Copyrighted Computer Programs
- Licenses and Contracts
- CONFU Proposal for Educational Fair Use Guidelines for Digital Images
- Background: Rights in Visual Images
- Applicability of These Guidelines
- Image Digitization and Use By Educational Institutions
- Digitizing by Institutions: Newly Acquired Analog Visual Images
- Creating Thumbnail Images
- Access, Display, and Distribution on an Institution’s Secure Electronic Network
- Time Limitations for Use of Images Digitized by Institutions from Newly Acquired Analog Visual Images
- Use By Educators, Scholars, And Students
- Educator Use of Images Digitized Under These Guidelines
- Use of Images for Peer Conferences
- Use of Images for Publications
- Student Use of Images Digitized Under These Guidelines
- Image Digitization by Educators, Scholars, and Students for Spontaneous Use
- Important Reminders and Fair Use Limitations Under These Guidelines
- Creation of Digital Image Collections
- Reasonable Inquiry
- Attribution and Acknowledgment
- Licenses and Contracts
- Portions from Single Sources Such as Published Compilations or Motion Pictures
- Portions of Individual Images
- Integrity of Images: Alterations
- Caution in Downloading Images from Other Electronic Sources
- Transition Period for Pre-Existing Analog Image Collections
- Digitizing by Institutions: Images in Pre-Existing Analog Image Collections
- CONFU Fair Use Guidelines for Educational Multimedia
- DISTANCE LEARNING
- The TEACH Act
- The CONFU Educational Fair Use Guidelines for Distance Learning
- Distance Learning In General
- Applicability and Eligibility
- Applicability of The Guidelines
- Works Performed for Instruction
- Relation To Instruction
- Transmission and Reception
- Transmission (Delivery)
- One Time Use
- Reproduction And Access To Copies
- Commercially Produced Multimedia
- Examples Of When Permission Is Required
- Commercial uses
- Dissemination of Recorded Courses
- Uncontrolled Access to Classes
- Use Beyond the 15-day Limitation
- LIBRARY COPYING
- Special Rules for Libraries
- Photocopying for Patrons
- Warning of Copyright
- Photocopying by Patrons
- Copyright Notice
- Interlibrary Loan
- CONTU Guidelines
- Paper and Electronic Reserves
- Classroom Guidelines for Paper Reserves
- CONFU Fair Use Guidelines for Electronic Reserve Systems
- Scope of Material
- Notices and Attributions
- Access and Use
- Storage and Reuse
Part II of this document explains the basic concepts of copyright law, including what works are protected and what uses of those works are not permitted. You should familiarize yourself with this section to understand when copyright issues may arise. Part III explains the concept of “fair use” and provides examples of the four-part analysis to determine whether a use is “fair.” You should analyze your proposed use under the four fair use factors to determine whether you may use the work without permission or a license. If you are uncertain how to apply the fair use factors, or want more explicit guidance on a specific type of use, you should consult the guidelines set forth in Parts IV, V, VI, or VII. In the 1970’s, and again in the 1990’s, various stakeholders assembled to create more specific guidelines for fair use by educational institutions. In addition to the Classroom Guidelines drafted by Congress and set forth in Section IV, the Conference on Fair Use (CONFU) proposed four sets of guidelines. The CONFU Guidelines for Fair Use of Educational Multimedia and Digital Images are set forth in Part V, the CONFU Guidelines on Distance Learning are set forth in Part VI, and the CONFU Guidelines on Electronic Regimes are set forth in Part VII. Another helpful resource are the Rules of Thumb for fair use developed by the University of Texas at Austin. While these Rules are based on the best determination of the UT General Counsel’s office and do not offer “safe harbor” protection, the Rules offer shorthand answers to common fair use questions. The UT Rules of Thumb can be found online at:
Faculty, staff and students are encouraged to consult this document before using the work of a third party.
What Works are Protected by Copyright? Copyright protects “original works of authorship” that are fixed in a tangible form of expression. Copyrightable works include the following categories:
- literary works;
- musical works, including any accompanying words;
- dramatic works, including any accompanying music;
- pantomimes and choreographic works;
- pictorial, graphic, and sculptural works;
- motion pictures and other audiovisual works;
- sound recordings; and
- architectural works.
These categories should be viewed broadly. For example, computer programs and most compilations are protected as “literary works”; maps and architectural plans are protected as “pictorial, graphic, and sculptural works.”
- Works in the public domain (generally limited to works created before 1923);
- Most works created by the U.S. federal government;
- Works that lack sufficient creativity or originality for copyright protection; and
- Facts and ideas (ideas can be extremely creative but they still aren’t copyrightable).
No permission is required to use these types of works, but your use is permissible only if the entire work falls into one or more of these categories. For example, a sound recording of a Beethoven sonata is protected by copyright even though the underlying work is in the public domain. Similarly, a compilation or specific organization of facts may be protected even though the underlying facts are not themselves protected.
- To reproduce the work in copies or phonorecords;
- To prepare derivative works based upon the work;
- To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
- To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;
- To display the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and
- · In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.
How is Copyright Protection Obtained? The way in which copyright protection is secured is frequently misunderstood. No publication or registration or other action in the Copyright Office is required to secure copyright. Copyright is secured automatically when the work is created. A work is “created” when it is fixed in a tangible form of expression, such as in a book, manuscript, sheet music, film, videotape, microfilm, cassette tapes, CDs, or LPs.
Factor #1: Purpose and Character of Use
- Is the use transformative (commentary, criticism or parody) or a mere reproduction/display/performance?
- Is the use non-profit, educational or commercial?
Factor #2: Nature of the Copyrighted Work
- Is the work published or unpublished?
- Is the work factual (e.g., a textbook) or fictional (e.g., a novel)?
Factor #3: Amount and Substantiality
- The less of a work used, the better (a few lines from a book vs. a reproduction of a painting). Note that even a small amount may be problematic if the portion used is the “heart” of the work.
Factor #4: Effect of Use on Potential Market
- Does the use deprive copyright owner of income or undermine the owner’s potential market for the work?
Examples The more factors that favor a finding of fair use, the more likely that a court would also consider the use to be fair. A few examples for illustration:
Classroom Guidelines: Copying of Printed Text Materials Single copy: A single copy of printed text material may be made by or for an educator for the purposes of teaching, preparation for teaching, or scholarly research, as long as the material is limited to:
- One chapter from a book;
- One article from a periodical or newspaper;
- One short story, short essay, or short poem (whether or not from a collective work); or
- One chart, graph, diagram, drawing, cartoon, or picture from a book, periodical, or newspaper.
Multiple copies: Multiple copies of printed text material may be made for one-time distribution to a single credit-bearing class of students if the copying meets the brevity, spontaneity and cumulative effect tests. Brevity Test: The following materials meet the test for brevity: Poetry
- A complete poem if less than 250 words and if printed on not more than two pages, or
- An excerpt of not more than 250 words from a longer poem.
- The complete work or an excerpt of an article, story or essay if the work is 2,500 words or less, or
- An excerpt from any prose work that is more than 2,500 words, not to exceed 10% of the work or 1000 words, whichever is less.
- One chart, graph, diagram, drawing, cartoon or picture per book or per periodical issue.
- An excerpt comprising not more than two of the published pages of a “special work” and containing not more than 10% of the words found in the text. (A “special work” is a work in poetry or prose or in “poetic prose” that may combine language with illustrations and falls short of 2,500 words.)
Spontaneity Test: The following circumstances meet the test for spontaneity:
- The copying is at the instance and inspiration of the individual educator, and
- 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.
Cumulative Effect Test: The following facts are required for the cumulative effect test:
- The copying of the material is for only one course.
- Not more than one short poem, article, story, essay or two excerpts may be copied from the same author, and not more than three from the same collective work or periodical volume during one class term.
- There are not more than nine instances of such multiple copying for one course during one class term.
Note: The last two limitations do not apply to current news periodicals and newspapers or current news sections of other periodicals.
Classroom Guidelines: Copying of Music Multiple Copies for Performance: Making multiple copies of music for performances is prohibited, except for the emergency purpose of replacing purchased copies that are not available for an imminent performance. The purchased replacement copies must be substituted in due course. Multiple Copies for Academic Purposes: Multiple copies of excerpts of musical works may be made for academic purposes other than performance if:
- The excerpts constitute less than 10% of the whole work, and
- The excerpts do not comprise a part of the whole that would constitute a performable unit such as a section, movement or aria.
Single Copy for Academic Purposes: A single copy of an entire performable unit (section, movement, aria, etc.) may be made for academic purposes other than performance if either:
- The work is confirmed by the copyright proprietor to be out of print, or
- The work is unavailable except in a larger work and the copy is made by or for an educator solely for the purpose of scholarly research or preparation for teaching.
Editing or Simplifying Copies: Printed copies that have been purchased may be edited or simplified, provided that the fundamental character of the work is not distorted, that the lyrics (if any) are not altered, and that no lyrics are added, if none exist. Recordings of Student Performances: A single copy of recordings of performances by students may be made for evaluation or rehearsal purposes and may be retained by St. Olaf or an individual educator. Recordings of Copyrighted Music: A single copy of a sound recording (such as a tape, disc or cassette) of copyrighted music may be made from sound recordings owned by St. Olaf or an individual educator for the purpose of constructing aural exercises or examinations and may be retained by the educational institution or individual educator.
Classroom Guidelines: Copying and Use of Videotapes and DVDs Copying generally prohibited: Copying copyright-protected audio or video material is not allowed unless written permission is obtained in advance from the copyright owner. Pre-recorded Videotapes or DVDs: In general, public performance or display of videotapes or DVDs is an exclusive right of the copyright owner. Videotapes and DVDs are licensed for “home use only,” which is not applicable to display to groups of students in a public place, such as a library or classroom. Section 110(1) of the 1976 Copyright Act creates an exception that permits the showing of copyright-protected work in a classroom setting in connection with face-to-face teaching activities of a non-profit educational institution, as long as in the case of motion pictures or audiovisual works, the copy used was lawfully obtained. While the videotape or DVD needs to be lawfully obtained, it does not need to be owned by the college. An instructor may show a personal or rental copy as long as the other requirements of Section 110(1) are met. Videotapes or DVDs on Reserve: While libraries can rent lawfully obtained videotapes or DVDs for students to check out and watch at home (as permitted under the “home use only” license on commercial videotapes), libraries may not show movies to groups within the library without a license or other exception. Videotapes and DVDs may be placed on reserve for students to view in personal viewing carrels or private rooms in very small groups, on the grounds that this is akin to “home use.” Recordings of Television Programs: Television programs may be recorded for classroom use under the following circumstances:
- The television program was broadcast for viewing by the general public. Use of pay-per-view programs is not permitted.
- An educator may show a television recording once, in the classroom, within 10 school days from the date of recording.
- A television recording may be retained for no more than 45 calendar days immediately following the date of recording. At the end of this period, the recording must be erased or destroyed.
- Television recordings may not be altered from their original content, and may not be physically or electronically combined or merged to constitute teaching anthologies or compilations.
Classroom Guidelines: Creation and Use of Multimedia Projects Educational multimedia projects may incorporate students’ or educators’ original material, such as course notes or commentary, together with various copyrighted media formats, such as motion media, text, graphics, music, photographs, and software, combined into an integrated presentation. Creation for Academic Purposes: In general, educators may incorporate portions of lawfully acquired copyrighted works when producing their own educational multimedia programs, subject to the time, portion and distribution limitations listed below: Time Limitation: Educators may use multimedia projects for only two years after the initial use. Use beyond that time period requires permission for each copyrighted portion incorporated into the project. Portion Limitation:
- Motion media: up to 10% or 3 minutes, whichever is less
- Text material: up to 10% or 1000 words, whichever is less
- Music, lyrics, music video: up to 10% but in no event more than 30 seconds of an individual work
- Illustrations and photographs: no more than 5 images by an artist or photographer, or when using images from a collective work, no more than 10% or 15 images, whichever is less
- Data sets: up to 10% or 2500 fields or cell entries, whichever is less
Note: Educators should exercise caution in downloading digital material from the internet, as much of the material on the internet is copyright protected. Distribution Limitation: Only two use copies may exist for a multimedia project. Of the two use copies, only one copy may be placed on reserve. An additional copy may be made for archival or backup purposes, such as retention by educators for later personal use in their own professional portfolios. Performance and Display: The performance and display of educator-created multimedia projects is limited to:
- Face-to-face instruction (such as a classroom setting);
- Directed self-study by students; or
- Over a secure electronic network, for distance learning, after-class review, or directed self-study, if the network has adequate technological protectionsthat limits access and prevents copying of the copyrighted material.
Note: If the technology cannot prevent copying, the multimedia project may only be made available on a network for a period of 15 days, after which time the project may be placed on reserve at a library for on-site use by students. Students should be advised that they are not permitted to make copies of the project.
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).
Photocopying FOR Patrons Libraries may also make copies (electronic or paper) at the request of library patrons only for single articles or small portions of a book or other work, as long as: (1) the copy becomes the property of the patron, (2) the library has no notice that the copy will be used for a purpose other than study, scholarship or research, and (3) the library has a display and order form that includes a warning of copyright (see below). Warning of Copyright Regulations issued by the Copyright Office require a specific Notice and Warning be used by libraries exercising their rights under Section 108. The notice must be a verbatim reproduction of the language below, in a type size as set forth below, on display in the library and on the order forms requesting reproductions.
NOTICE WARNING CONCERNING COPYRIGHT RESTRICTIONS
The copyright law of the United States (Title 17, United States Code) governs the making of photocopies or other reproductions of copyrighted material. Under certain conditions specified in the law, libraries and archives are authorized to furnish a photocopy or other reproduction. One of these specified conditions is that the photocopy or reproduction is not to be “used for any purpose other than private study, scholarship, or research.” If a user makes a request for, or later uses, a photocopy or reproduction for purposes in excess of “fair use,” that user may be liable for copyright infringement. This institution reserves the right to refuse to accept a copying order if, in its judgment, fulfillment of the order would involve violation of copyright law. Form and Manner of Use: (1) A Display Warning of Copyright shall be printed on heavy paper or other durable material in type at least 18 points in size, and shall be displayed prominently, in such manner and location as to be clearly visible, legible, and comprehensible to a casual observer within the immediate vicinity of the place where orders are accepted. (2) An Order Warning of Copyright shall be printed within a box located prominently on the order form itself, either on the front side of the form or immediately adjacent to the space calling for the name or signature of the person using the form. The notice shall be printed in type size no smaller than that used predominantly throughout the form, and in no case shall the type size be smaller than 8 points. The notice shall be printed in such manner as to be clearly legible, comprehensible, and readily apparent to a casual reader of the form.