Uses and Applications
Fair Use guidelines for Educational Multimedia
TABLE OF CONTENTS
- Introduction
- Preparation of Educational Multimedia Projects Under These Guidelines
- Permitted Educational Uses for Multimedia Projects Under These Guidelines
- Limitations
- Examples of When Permission is Required
- Important Reminders
1.1 Preamble
Fair use is a legal principle that defines the 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.
(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 nor 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 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.
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.
*These Guidelines shall not be read to supersede other preexisting education fair use guidelines that deal with the Copyright Act of 1976.
**See Section 106 of the Copyright Act.
***The Copyright Act of 1976, as amended, is codified at 17 U.S.C. Sec.101 et seq. guidelines and clearly indicate the variety of interest groups involved, both from the standpoint of the users of copyrighted material and also from the standpoint of the copyright owners.
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
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 the 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 programs
for their own teaching tools in support of curriculum-based instructional
activities at educational institutions.
3. PERMITTED USES
OF EDUCATIONAL MULTIMEDIA PROGRAMS 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 Distance Education:
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 multimedia project.
3.3 Educator Use for Peer Conferences:
Educators may perform or display their own 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 limits 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 a 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 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.
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 a 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
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 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.
6.1 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 the 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 program 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 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.
