Fair Use Guidelines for Educational Multimedia
Requests for media transfer and duplication, in-classroom use of materials and requests to place materials on reserve will be honored in accordance with the COPYRIGHT LAW OF 1976 and the provisions of fair use as well as the Digital Millennium Copyright Act and the T.E.A.C.H Act.
It is the responsibility of the professor or individual to acquire copyright release as well as maintain appropriate records verifying copyright release. The manager of Instructional Technology and Media Services may at times assist individuals in locating addresses of copyright holders.
NOTE: Purchased ownership of an item in most instances does not convey copyright release to the purchaser.
Media Duplication and Transfer
Instructional Technology and Media Services (ITMS) will duplicate and transfer media for patrons within the provisions of the copyright law. ITMS reserves the right to refuse to accept a request for duplication if it appears that copyright law would be violated.
Copyrighted material will not be accepted for duplication or transfer unless the provisions of "fair use" apply or the patron has written permission to duplicate the material. A copy of the written copyright release statement signed by the copyright holder must be presented at ITMS before the request for duplication will be honored.
Materials placed on reserve must conform to the provisions of the copyright law. All materials placed on reserve must be lawfully acquired. Individuals placing personal materials on reserve assume responsibility for supplying items that have been lawfully acquired and meet copyright and fair use restrictions.
Guidelines for Off-Air Recording of Broadcast Programming for Educational Purposes
In March of 1979, Congressman Robert Kastenmeier, Chairman of the House Subcommittee on Courts, Civil Liberties and the Administration of Justice, appointed a Negotiating Committee consisting of representatives of education organizations, copyright proprietors, and creative guilds and unions.
The following guidelines reflect the Negotiating Committee's 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 such off-air recording in classrooms and similar places devoted to instruction and for homebound instruction. The purpose of establishing these guidelines is to provide standards for both owners and users of copyright television programs.
The guidelines were developed to apply only to off-air recording by nonprofit educational institutions.
- A broadcast program may be recorded off-air simultaneously with broadcast transmission (including simultaneous cable retransmission) and retained by a nonprofit educational institution for a period not to exceed the first forty-five (45) consecutive calendar days after date of recording. Upon conclusion of such retention period, all off-air recordings must be erased or destroyed immediately. "Broadcast programs" are television programs transmitted by television stations for reception by the general public without charge.
- 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) 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.
- 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.
- 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.
- After the first ten (10) consecutive school days, off-air recordings may be used up to the end of the forty-five (45) calendar day retention period only for teacher evaluation purposes, i.e., to determine whether or not to include the broadcast program in the teaching curriculum, and may not be used in the recording institution for student exhibition or any other non-evaluation purpose without authorization.
- 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.
- All copies of off-air recordings must include the copyright notice on the broadcast program as recorded.
- Educational institutions are expected to establish appropriate control procedures to maintain the integrity of these guidelines.
Congressional Record Oct. 14, 1981 Vol. 127 No. 145
Fair Use Guidelines for Educational Multimedia
Table of Contents
- Preparation of Educational Multimedia Projects under These Guidelines
- Permitted Educational Uses for Multimedia Projects under These Guidelines
- Examples of When Permission is Required
- Important Reminders
- Public Domain and Creative Commons
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 noncommercial 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":
- the purpose and character of use, including whether such use is of a commercial nature or is for nonprofit educational purposes
- the nature of the copyrighted work
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole
- 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 participants' consensus of conditions under which fair use should generally apply and examples of when permission is required. Uses that exceed these guidelines may or may not be fair use. The participants also agree that the more one exceeds these guidelines, the greater the risk that fair use does not apply.
The limitations and conditions set forth in these guidelines do not apply to works in the public domain -- such as US 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.
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 used throughout these guidelines are identified in bold and defined in this section.)
These guidelines apply to the use, without permission, of portions of lawfully acquired copyrighted works in educational multimedia projects which are created by educators or students as part of a systematic learning activity by nonprofit educational institutions. Educational multimedia projects created under these guidelines incorporate students' or educators' original material, such as course notes or commentary, together with various copyrighted media formats including but not limited to, motion media, music, text material, graphics, illustrations, photographs and digital software which are combined into an integrated presentation. Educational institutions are defined as nonprofit organizations whose primary focus is supporting research and instructional activities of educators and students for noncommercial purposes.
For the purposes of 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 noncommercial 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 Copyright Act of 1976 and Fair Use Doctrine and the Digital Millennium Copyright Act. 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 as they are applied to fair use.
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.
The Conference on Fair Use (CONFU) held in 1997 attempted to establish guidelines to help clarify fair use of copyrighted materials and works in an educational environment. These guidelines, also known as the Safe Harbor Copyright Guidelines for Educators published in November of 1998 as part of the final report from the Conference on Fair Use (www.uspto.gov/sites/default/files/documents/confurep_0.pdf) by Bruce A. Lehman are not to be considered as law under educational exclusion to fair use. These basic guidelines should be used in conjunction with the four-factor test of fair use under the U.S. Copyright Act of 1976.
Under the CONFU guidelines, educators and students need not get copyright permissions if they make a good fair effort to adhere to the suggested limits as follows:
- 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 a multimedia project.
- Text Material: Up to 10% or 1,000 words, whichever is less, in the aggregate of a copyrighted work consisting of text material may be reproduced or otherwise incorporated as part of a multimedia project created under Section 2 of these guidelines. An entire poem of less than 250 words may be used, but no more than three poems by one poet, or five poems by different poets from any anthology may be used. For poems of greater length, 250 words may be used but no more than three excerpts by a poet, or five excerpts by different poets from a single anthology may be used.
- 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.
- 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. 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.
- Numerical Data Sets: Up to 10% or 2,500 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.
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 than 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 Digital Materials and Downloading from the Internet
Educators and students are advised to exercise caution in using digital materials especially materials 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 ((c), 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.