Appendix H--Proposal for Educational Fair Use: Guidelines for Digital Images1

TABLE OF CONTENTS:

1. Introduction.

2. Image Digitization and Use by Educational Institutions.

3. Use by Educators, Scholars, and Students.

4. Image Digitization by Educators, Scholars, and Students for Spontaneous Use.

5. Important Reminders and Fair Use Limitations Under These Guidelines.

6. Transition Period for Pre-Existing Analog Image Collections.

Appendix A: Organizations Endorsing These Guidelines.

Appendix B: Organizations Participating in Development of These Guidelines.

1. INTRODUCTION:

1.1  Preamble.

Fair use is a legal principle that provides certain limitations on the exclusive rights 2 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 3 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.

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 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 fair use of copyrighted works in other educational contexts such as educational multimedia projects,4distance 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 repro-

duction 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 audio-visual 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. Ex- amples of educational institutions include K-12 schools, colleges, and universities; libraries, museums, hospitals, and other nonprofit institutions also are considered educational institutions under this definition when they engage in nonprofit instructional, research, or scholarly activities for educa- tional 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, 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 institutionís collection after [December 31, 1996].

A visual online catalog is a database consisting of thumbnail images of an institutionís 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 source. A thumbnail image, as used in a visual online catalog or image browsing display to enable visual identification of records in an educational institutionís 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 Institutionís 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 educatorís compilation of digital images (see also Section 3.1.2) on the institutionís 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 institutionís 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 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 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 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 non-profit educational institution.

3.1.2  An educator may compile digital images for display on the institutionís 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 institutionís 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 representing 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 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 pre-existing 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).

APPENDIX A: ORGANIZATIONS ENDORSING THESE GUIDELINES:

APPENDIX B: ORGANIZATIONS PARTICIPATING IN GUIDELINE DEVELOPMENT:

American Association of Community Colleges
American Association of Museums

American Council of Learned Societies
American Society of Media Photographers
American Society of Picture Professionals
Art Libraries Society of North America
Association of American Publishers
Association of American Universities
Association of Art Museum Directors
Association of College and Research Libraries
Association of Research Libraries
Coalition for Consumers' Picture Rights
College Art Association
Consortium of College and University Media Centers
Corbis Corporation
Creative Incentive Coalition
The J. Paul Getty Trust
Instructional Telecommunications Council
Library of Congress/National Digital Library Project
Medical Library Association
National Council of Teachers of Mathematics
National Endowment for the Arts
National Endowment for the Humanities
National Initiative for a Networked Cultural Heritage
National Science Teachers Association
Picture Agency Council of America
Special Libraries Association
U.S. Copyright Office
Visual Resources Association

______________________________________
Footnotes

1 These Guidelines shall not be read to supersede other preexisting educational use guidelines that deal with the 1976 Copyright Act.

2 See Section 106 of the Copyright Act.

3 The Copyright Act of 1976, as amended, is codified at 17 U.S.C. a 101 et seq.

4 In general, multimedia projects are stand-alone, interactive programs incorporating both original and pre- existing copyrighted works in various media formats, while visual image archives are databases of individual visual images from which images intended for educational uses may be selected for display.

______________________________________

Discussion draft compiled by participants in the CONFU-Digital Image working group at meetings on 2/28, 4/9, 4/17, 4/22, 5/2, 5/16, 5/29, 6/3, 6/12, 6/21, 6/26, 7/16, 8/7, 9/4, 10/9, and 10/29/96. The working draft of these guidelines is held by Cameron Kitchin of the American Association of Museums (202/ 289-1818, cameron@usa.net). The working draft of these guidelines is held by Cameron Kitchin of the American Association of Museums (tel. 202/289-1818, cameron@usa.net), and can be found at the following website: http://www.americanmuse.org/aam/

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Appendix I

1.1 PREAMBLE

Fair use is a legal principle that provides certain limitations on the exclusive rights 2 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 3 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 dy- namic 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 fair use of copyrighted works in other educational contexts such as educational multimedia projects, 4 electronic reserves or digital images 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 nondramatic 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 videodisk, 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 circumven-ting 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.⁵ 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).

APPENDIX A: ORGANIZATIONS ENDORSING THESE GUIDELINES

APPENDIX B: ORGANIZATIONS PARTICIPATING IN GUIDELINE DEVELOPMENT

American Association of Community Colleges

American Association of Law Libraries

American Council of Learned Societies

Association of American Publishers

Association of American Universities

Association of College and Research Libraries

Association of Research Libraries

Broadcast Music, Inc.

Consortium of College and University Media Centers

Creative Incentive Coalition

Houghton Mifflin

Indiana Partnership for Statewide Education

John Wiley & Sons, Inc.

Kent State University

National Association of State Universities and Land Grant Colleges

National Geographic Society

National School Board Association

Special Libraries Association

State University of New York

U.S. Copyright Office

University of Texas System

Viacom, Inc.

The Educational Fair Use Guidelines for Distance Learning with a current list of endorsers can be found at the following website: http://www-ninch.cni.org/

Questions or comments should be directed to:

Laura Gasaway

Director, University of North Carolina Law Library

tel.: 919-962-1049

fax: 919-962-1193

e-mail: laura_gasaway@unc.edu

___________________________________________
Footnotes

1 See Exec. Order No. 12864, 3 C.F.R. 634 (1993).

2 Information Infrastructure Task Force, National Telecommunications and Information Administration, National Information Infrastructure: Agenda for Action (1993).

3 Information Infrastructure Task Force, Global Information Infrastructure: Agenda for Cooperation (1995).

4 For list of participating agencies, see Information Infrastructure Task Force, Working Group on Intellectual Property Rights, Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property Rights (1995) (hereinafter SWHITE PAPERT) at App. 3.

Return to the Table of Contents

Appendix J

TABLE OF CONTENTS

1. Introduction

2. Preparation of Educational Multimedia Projects Under These Guidelines

3. Permitted Educational Uses for Multimedia Projects Under These Guidelines

4. Limitations

5. Examples of When Permission is Required

6. Important Reminders

Appendix A: Organizations Endorsing These Guidelines

Appendix B: Organizations Participating in Development of These Guidelines

1. INTRODUCTION

1.1 Preamble

Fair use is a legal principle that provides certain limitations on the exclusive rights 2 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 educa-tional 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 3 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 guide- lines 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 educa-tional and scholarly uses of educational multimedia projects4. These guidelines do not cover nonedu-cational 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 educational multimedia projects,⁴ 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 Acknowledgement

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 reason-ably 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 display-ed without such information being simultaneously displayed on the screen. In such cases, this infor-mation 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 multi-media 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 dis-semination, 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 incor-porate as part of an educational multimedia project only if the alterations support specific instruc-tional 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 infor-mation are subject to a license or contract. Fair use and these guidelines shall not preempt or super-sede licenses and contractual obligations.

APPENDIX A: (Endorsements and letters of support received as of November 25, 1996)

1. ORGANIZATIONS ENDORSING THESE GUIDELINES:

Agency for Instructional Technology (AIT)

American Association of Community Colleges (AACC)

American Society of Journalists and Authors (ASJA)

American Society of Media Photographers, Inc. (ASMP)

American Society of Composers, Authors and Publishers (ASCAP)

Association for Educational Communications and Technology (AECT)

Association for Information Media and Equipment (AIME)

Association of American Publishers (AAP)

Association of American Colleges and Universities (AAC&U)

Association of American University Presses, Inc. (AAUP)

Broadcast Music, Inc. (BMI)

Consortium of College and University Media Centers (CCUMC)

Creative Incentive Coalition (CIC)

Information Industry Association (IIA)

Instructional Telecommunications Council (ITC)

Maricopa Community Colleges/Phoenix

Motion Picture Association of America (MPAA)

Music Publishers' Association of the United States (MPA)

Recording Industry Association of America (RIAA)

Software Publishers Association (SPA)

2. COMPANIES AND INSTITUTIONS ENDORSING THESE GUIDELINES:

Houghton Mifflin

John Wiley & Sons, Inc.

McGraw-Hill

Time Warner, Inc.

3. U.S. GOVERNMENTAL AGENCIES SUPPORTING THESE GUIDELINES:

U.S. National Endowment for the Arts (NEA)

U.S. Copyright Office

U.S. Patent and Trademark Office

APPENDIX B: ORGANIZATIONS PARTICIPATING IN GUIDELINE DEVELOPMENT:

Agency for Instructional Technology (AIT)
American Association of Community Colleges (AACC)
American Association for Higher Education (AAHE)
American Library Association (ALA)
American Society of Journalists and Authors (ASJA)
American Society of Media Photographers (ASMP)
Artists Rights Foundation
Association of American Colleges and Universities (AAC&U)
Association of American Publishers (AAP)
-Harvard University Press
-Houghton Mifflin
-McGraw-Hill
-Simon and Schuster
-Worth Publishers
Association of College and Research Libraries (ACRL)
Association for Educational Communications and Technology (AECT)
Association for Information Media and Equipment (AIME)
Association of Research Libraries (ARL)
Authors Guild, Inc.
Broadcast Music, Inc. (BMI)
Consortium of College and University Media Centers (CCUMC)
Copyright Clearance Center (CCC)
Creative Incentive Coalition (CIC)
Directors Guild of America (DGA)
European American Music Distributors Corp.

Educational institutions participating in guideline discussion
-American University
-Carnegie Mellon University
-City College/City University of New York
-Kent State University
-Maricopa Community Colleges/Phoenix
-Pennsylvania State University
-University of Delaware
Information Industry Association (IIA)
Instructional Telecommunications Council (ITC)
International Association of Scientific, Technical and Medical Publishers
Motion Picture Association of America (MPAA)
Music Publishers Association (MPA)
National Association of State Universities and Land-Grant Colleges (NASULGC)
National Council of Teachers of Mathematics (NCTM)
National Educational Association (NEA)
National Music Publishers Association (NMPA)
National School Boards Association (NSBA)
National Science Teachers Association (NSTA)
National Video Resources (NVR)
Public Broadcasting System (PBS)
Recording Industry Association of America (RIAA)
Software Publishers Association (SPA)
Time Warner, Inc.
U.S. Copyright Office
U.S. National Endowment for the Arts (NEA)
Viacom, Inc.

Prepared by the Educational Multimedia Fair Use Guidelines Development Committee, July 17, 1996

INFORMATION RELATED TO THE FAIR USE GUIDELINES FOR EDUCATIONAL MULTIMEDIA

The Association of American Publishers (AAP) membership includes over 200 publishers.

The Information Industry Association (IIA) membership includes companies involved in the creation, distribution and use of information products, services and technologies.

The Software Publishers Association (SPA) membership includes 1200 software publishers.

The Creative Incentive Coalition membership includes the following organizations:

Association of American Publishers
Association of Independent Television Stations
Association of Test Publishers
Business Software Alliance
General Instrument Corporation
Information Industry Association
Information Technology Industry Council
Interactive Digital Software Association
Magazine Publishers of America
The McGraw-Hill Companies
Microsoft Corporation
Motion Picture Association of America, Inc.
National Cable Television Association
National Music Publisher's Association
Newspaper Association of America
Recording Industry Association of America
Seagram/MCA, Inc.
Software Publishers Association
Time Warner, Inc.
Turner Broadcasting System, Inc.
West Publishing Company
Viacom, Inc.

The Proposal for Fair Use Guidelines for Educational Multimedia Document with a current list of endorsers can be found on the following sites: http://www.sju.edu/~lees/FU-let-intro.html or http://www.libraries.psu.edu/avs/

Questions or comments should be directed to:

Lisa Livingston

Director, CUNY Media Center

tel: 212-650-6708

fax: 212-650-6753

e-mail: lilcc@cunyvm.cuny.edu

______________________________________
Footnotes

1 These Guidelines shall not be read to supersede other preexisting educational use guidelines that deal with the 1976 Copyright Act.

2 See Section 106 of the Copyright Act.

3 The Copyright Act of 1976, as amended, is codified at 17 U.S.C. a 101 et seq.

4 In general, multimedia projects are stand-alone, interactive programs incorporating both original and pre- existing copyrighted works in various media formats, while visual image archives are databases of individual visual images from which images intended for educational uses may be selected for display.

Return to the Table of Contents

Appendix K

These scenarios illustrate some uses of computer programs and multimedia works by nonprofit libraries, including those at nonprofit educational institutions, for administrative purposes and for on-site and off-site circulation, in light of the following provisions of the Copyright Act of 1976:

Section 107: Fair use privilege for certain unauthorized reproduction, distribution, adaptation, and public performance and display.

Section 109(b): Exemption from the software rental right for lending by nonprofit educational institu-

tions, and exemption from the software rental right for lending by nonprofit libraries for nonprofit purposes.

Section 117: Exemption for archival "back-up" copies and adaptations essential for using computer program with machine.

Please note that the Guidelines for Classroom Copying in Not-for-Profit Educational Institutions are explicitly limited to books and periodicals, and do not encompass other types of copyrighted works, including computer programs.

1. Library Administration

General Rule: Unauthorized reproduction, distribution, or adaptation of computer programs for library administration is governed by the same rules as other end-uses, and will be considered infringement unless it constitutes fair use under Section 107 or it is exempted under Section 117.

a. A nonprofit university library purchases a spread sheet program for managing accounts payable, and the MIS director adapts the program so it can be used on the library's computers.

This use qualifies for the Section 117 exemption. The owner of a lawfully acquired copy of a computer program is permitted to make an adaptation of a computer program "as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner." If the library licenses, rather than purchases, the program, then it should refer to the license agreement or contact the copyright owner before making an adaptation.

b. The administrator of a nonprofit university library licenses a spread sheet program for managing accounts payable, but the university business office uses a different program. The library administrator prepares monthly reports with the program, which are sent to the university's business office on diskette or via e-mail with a copy of the library's spread sheet program.

No fair use defense or statutory exemption is available. Because the copy sent to the university business office was not lawfully made, this does not qualify for the nonprofit library lending exemption, or the nonprofit educational lending exemption permitting transfer of possession of computer programs to "faculty, staff, and students."

c. Assume the same facts as in (b) above, except that the library administrator does not send the monthly report with a copy of the library's spread sheet program, but rather reformats the monthly report in text for transmission to the university business office.

Fair use defense or statutory exemptions are not necessary. Because the library administrator has not made an unauthorized reproduction or distribution of the spread sheet program, it has not infringed the copyright.

d. A nonprofit library purchases a single-machine license for a spreadsheet program to be used in calculating employee payroll. A library employee opens the sealed envelope containing the CD-ROM or diskette and installs the computer program on a computer without reading the license agreement. Later, he makes a copy of the program and gives it to a colleague on the library staff, who loads it on her computer.

No fair use defense exists under Section 107. The library has infringed the copyright by making an unauthorized reproduction of the computer program, and there are no other statutory exemptions available.

e. A librarian busy archiving the papers of a noted alumna decides to work at home. To keep track of his hours, he makes a copy of the spread sheet program installed on his office computer and takes it home to installs on his home computer.

No fair use defense or statutory exemption is available. Because many end-users now want to work at home as well as the office, many business application publishers now offer "single user licenses," which permit the licensee to install and use the computer program on both an office and a home computer provided the two copies are not in use simultaneously.

f. A librarian licenses and installs a spread sheet program to manage her budget. Two years later, the librarian licenses a functional upgrade for the program, installs it on her office computer, and installs the older version alone on her home computer.

No statutory exemption or fair use defense exists if a valid license for the functional upgrade prohibits transfer of the older version to another machine or another user. Software license agreements distinguish between functional upgrades of licensed software and the current version licensed by new customers. Because functional upgrades are licensed on the assumption that the customer has already licensed a previous version of the software, their prices are usually about two-thirds lower than the price of the current title for new customers. Therefore, most functional upgrade licenses restrict or prohibit the transfer of the previous version to another user or machine.

There is disagreement about whether the same result would be reached if the functional upgrade and the older version are part of the library collection.

g. Assume the same facts as in (f), except that the librarian obtains a full price license to the new version of the program, rather than the less expensive functional upgrade, for her office computer, and installs the older version alone on her home computer.

It is unnecessary to consider fair use or statutory exemptions. Because the librarian has licensed two complete and independent programs, the copyright in the programs has not been infringed.

2. Lending Copies of Computer Programs to Library Patrons

General Rule: Provided that the required warning is placed on lawfully acquired copies of computer programs, they may be lent by nonprofit libraries to patrons for nonprofit purposes under Section 109(b) of the Copyright Act. In looking at these scenarios, keep in mind that the library patron may be liable for copyright infringement even if the library is not.

a. A nonprofit library possesses one copy of a popular word processing program pursuant to a valid license, affixes to the package the required copyright warning, and makes it available at the circulation desk for patrons to borrow.

This is permissible under Section 109(b)(2), provided that the lending library is unaware or has no substantial reason to believe that the computer software is lent for a for-profit purpose.

b. Assuming the same facts as in (a). A student working on an English

literature research paper borrows the word processing program and installs it on her personal computer. Later, when the word processing program is overdue, she returns the packaged copy to the library, but keeps the copy installed on her computer to complete the research paper.

Statutory exemptions are available to the library, but not to the student. The Section 109(b)(2) lending exemptions permit "transfer of possession" and "lending" of computer programs by schools and libraries for users, but not unauthorized reproduction by patrons. The library would not face liability unless contributory infringement or vicarious liability is proved, such as demonstrating that the library encouraged patrons to copy.

c. A nonprofit library loans its copy of applications software that was purchased, not licensed. The required warning is affixed to the package.

This is permissible under 109(b)(2) provided that the borrowing library is unaware or has no sub-

stantial reason to believe that the software is to be used for for-profit purposes. Lending the applica-

tions software is impermissible if the library acquired it under a license which did not permit loans.

d. A library purchases a book with supplemental software on a disk in the book pocket. The library lends the book with the accompanying software in response to an interlibrary loan request.

This is permissible under Section 109(b)(2), provided that the book and software is lent for a nonprofit purpose, and the library affixes to the book or disk the required copyright warning.

3. Patron Use from Remote Servers

a. A library at a nonprofit educational institution obtains a single-machine license for a popular word processing program, but makes it available via a campus wide computer system that any number

of students, faculty, and staff may access simultaneously from either on or off campus. The required

copyright warning is displayed whenever an end-user signs onto the computer system.

The fair use defense and statutory exemptions are unavailable. The lending exemptions for nonprofit libraries and nonprofit educational institutions apply to lawfully made copies, but not to the unauthor-

ized reproduction and public display that occurs with network distribution. The fair use defense also should not apply to this reproduction, despite its non-commercial purpose, because the entire compu-

ter program is reproduced, the computer program may be unpublished, and the serious commercial effect caused by lost license fees and pirated copies.

b. Assume the same facts as in (a), except that the library obtains a network version of the word processing program and a site license permitting simultaneous access for faculty, staff, and students.

There is no infringement by library or faculty, staff, or students.

c. A nonprofit library has installed a computer program on its network and made it available to patrons, pursuant to a license agreement, via on-site terminals. Despite warnings to the contrary, a patron copies the computer program onto a diskette for his personal use.

There is copyright infringement by the library patron, and neither the fair use defense nor a statutory exemption is available.

d. A student at a nonprofit educational institution licenses a computer program for her personal computer, and uploads the computer program to the school library's network, where it can be accessed and copied by several hundred students, faculty and staff without permission of the copyright owner.

There is copyright infringement by the student. Her unauthorized reproduction of the computer program is not covered by Section 109(b) exemptions for nonprofit library lending for nonprofit purposes or nonprofit educational institutional lending.

September 6, 1996

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Statement on Use of Copyrighted Computer Programs (Software) in Libraries -- Scenarios drafted by:

Sarah K. Wiant Director of the Law Library Software Publishers Association Washington, D.C. 20036 voice: 202-452-1600 ext. 322 facsimile: 202-223-8756 email: mtraphagen@spa.org

Mark Traphagen Vice President and Counsel and Professor of Law Washington and Lee University Lexington, Virginia 24450 voice: 540-463-8540 facsimile: 540-463-8967 email: swiant@wlu.edu