NONLEGISLATIVE REPORT OF THE SUBCOMMITTEE ON COURTS AND INTELLECTUAL PROPERTY COMMITTEE ON THE JUDICIARY US HOUSE OF REPRESENTATIVES

This nonlegislative report was adopted by the Subcommittee on Courts and Intellectual Property, Committee on the Judiciary, U. S. House of Representatives, on September 27, 1996, and related to Fair Use Guidelines for Educational Multimedia.

Under the Copyright Act of 1976, copyright owners have the exclusive right to reproduce, prepare derivative works, distribute, perform, display, transfer ownership, rent or lend their creations. Under the same Act, the "fair use" exemption places a limit on these exclusive rights to promote free speech, learning, scholarly research and open discussion. Accordingly, under the Act, educators may use portions of copyrighted material if the purpose and character of the use is educational in nature, previously published, not a substantial part of the entire work and if the marketability of the work is not impaired by the use. These vague standards do not provide much specific guidance for educators, scholars and students, and are fairly subjective in their interpretation.

Because of the vague nature of the exemption, shortly after Congress passed the Copyright Act in 1976, a group of publishers, authors and educators gathered to agree on an interpretation of the fair use exemption which would in turn provide more specific guidelines that educators could follow and be reasonably sure that they would not be in violation of the copyright law. These guidelines were made part of the Congressional Record and became an unrelated part of a Judiciary Committee Report.

Many technological developments have occurred since 1976. The fair use exemption contained in the Copyright Act must again be interpreted by copyright owners and the educational community to allow educators to apply the Act in light of these new technologies. To that end, the Consortium of College and University Media Centers ("CCUMC") convened a diverse group of interested parties to draft guidelines which would provide guidance on the application of the fair use exemption by educators, scholars and students in creating multimedia projects that include portions of copyrighted works, for their use in noncommercial educational activities, without having to seek the permission of copyright owners. These guidelines form the body of this nonlegislative report.

These guidelines do not represent a legal document, nor are they legally binding. They do represent an agreed upon interpretation of the fair use provisions of the Copyright Act by the overwhelming majority of institutions and organizations affected by educational multimedia. A list of those organizations who have supplied written endorsements for the guidelines appears at the end of the guidelines.

While only the courts can decide whether a particular use of a copyrighted work falls within the fair use exemption, these guidelines represent the participants' consensus view of what constitutes the fair use of a portion of a work which is included in a multimedia educational project. The specific portion and time limitations will help educators, scholars and students more easily identify whether using a portion of a certain copyrighted work in their multimedia program constitutes a fair use of that work. They grant a relative degree of certainty that a use within the guidelines will not be perceived as an infringement of the Copyright Act by the endorsing copyright owners, and that permission for such use will not be required. The more one exceeds these guidelines, the greater the risk that the use of a work is not a fair use, and that permission must be sought.

Along with the Copyright Office and the U. S. Patent and Trademark Office, whose letters of endorsement for these guidelines are included in this report, the Subcommittee congratulates the CCUMC and the other drafting participants for their hard work and effort, which clearly advances the strength of the U. S. copyright system.

Sincerely,

Carlos J. Moorhead, Chairman

Patricia Schroeder, Ranking Democratic Member

1. INTRODUCTION

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, 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 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 (Certain basic terms used throughout these guidelines are identified in bold and defined in this section.)

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

For the purposes of 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 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 limitaitons 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. 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 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.

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

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

APPENDIX A: (as of MARCH 19, 1997)

1. ORGANIZATIONS THAT HAVE ENDORSED 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)**
DeKalb College/Clarkston, GA
Educational Technology Officers' Association of the State University
of New York (EdTOA/SUNY)
Educational Testing Service (ETS)
Iowa Association for Communications Technology (IACT)
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)
National Association of Regional Media Centers (NARMC)
National Association of Schools of Art and Design
National Association of Schools of Dance
National Association of Schools of Music (NASM)
National Association of Schools of Theatre
Recording Industry Association of America (RIAA)
Special Libraries Association (SLA)
Software Publishers Association (SPA)
Tennessee Board of Regents Media Consortium

2. U.S. GOVERNMENT AGENCIES SUPPORTING THESE GUIDELINES:
U.S. National Endowment for the Arts (NEA)
U.S. Copyright Office
U.S. Patent and Trademark Office

3. INDIVIDUAL COMPANIES AND INSTITUTIONS ENDORSING THESE GUIDELINES:
Houghton-Mifflin
John Wiley & Sons, Inc.
McGraw-Hill
Time Warner, Inc.

** ADDITIONAL INFORMATION ON SOME OF THE ORGANIZATIONS WHO HAVE ENDORSED THESE GUIDELINES

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

The Information Industry Association (IIA) membership includes 550 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 Sofware Association
--Magazine Publishers of America
--The McGraw-Hill Companies
--Microsoft Corporation
--Motion Picture Association of America, Inc.
--National Cable Television Association
--National Council of Teachers of Mathematics
--National Music Publisher's Association
--Newspaper Association of America
--Recoding Industry Association of America
--Seagram/MCA, Inc.
--Software Publishers Association
--Time Warner, Inc.
--Turner Broadcasting System, Inc.
--West Publishing Company
--Viacom, Inc.

APPENDIX B: ORGANIZATIONS PARTICIPATING IN GUIDELINE DEVELOPMENT: Being a
participant does not necessarily mean that the organization has or will endorse these guidelines.
Agency for Instructional Technology (AIT)
American Association of Community Colleges (AACC)
American Association of Higher Education (AAHE)
American Library Association (ALA)
American Society of Journal Authors, Inc. (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 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 institution represented
--American University
--Carnegie Mellon University
--City College/City University of New York
--Kent State University
--Maricopa Community Colleges/Phoenix
--Penn 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