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Smith College Copyright Policies

I. Introduction

The purpose of copyright, as articulated in the United States Constitution, is to “promote the Progress of Science and useful Arts.“ As creators of copyrighted works, we appreciate the incentive that copyright holds for the dissemination and preservation of our creative efforts in order to advance and expand general knowledge. As users of copyrighted works, we honor both the opportunities for and limitations to using the intellectual property of others. We also act as significant role models for our students for the responsible use of copyrighted work in teaching, learning, research and scholarship. We strive to strike an appropriate balance between the rights of intellectual property owners to govern the dissemination and use of their works and our need to use information quickly and efficiently in our teaching, learning and scholarship.

II. Education and Research

Smith College will take appropriate measures to ensure that its students, faculty and staff are aware of copyright laws, regulations and agreements and can act responsibly as they use information that is owned by others in the course of teaching, learning, research or administration of the College. All members of the Smith College community are required to comply with copyright laws. Federal copyright laws provide valuable protection to the authors of original works, and Smith College expects all members of the Smith community to respect those rights. Copyright laws also permit users of copyrighted works to make fair use of copyrighted materials under some limited circumstances. Smith College is committed to support the utilization and defense of exceptions afforded by copyright law and in particular fair use. The Smith College community is expected to have knowledge of, and make reasonable application of, the four factors of fair use (see below).

III. Copyright Protections & Fair Use Principles

To help members of the Smith community understand and comply with copyright laws, this document summarizes basic principles of copyright law including the application of fair use. Copyright law is inherently complex. Fair use of a copyrighted work depends upon a specific determination based upon the circumstances of the use. New information technologies, e.g., digital information and networked environments, have introduced a wholly new, and in many ways transformed, working environment for the application of copyright. These principles are intended to provide an initial context for complying with the law.

Principle 1: The copyright holder has important and exclusive rights. Copyright law protects original works such as writings, music, visual arts, and films by giving the copyright holder a set of exclusive rights in that work. These rights include the right to copy, distribute, adapt, perform, display, and create derivative or collected works. In general, any use of copyrighted materials requires permission from, and potentially payment of royalties to, the copyright holder unless the use falls within an exception or exemption in the law, such as the fair use exemption.

Principle 2: Responsible decision making means that Smith College community members must make demonstrable good faith efforts to understand the fundamentals of copyright law and the reasonable application of fair use. When Smith College community members plan to use a copyrighted work in their teaching or research, they must examine the specifics of their use within the context of the law in order to determine whether they should seek permission for the use or depend instead upon the fair use exemption.

Principle 3: An appropriate exercise of fair use depends on a case-by-case application and balancing of four factors as set forth in a statute enacted by Congress. A proper determination of fair use — in daily practice and in the courts — requires applying these four factors to the specific circumstances of the use:

  • Purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  • Nature of the copyrighted work
  • Amount and substantiality of the portion used in relation to the copyrighted work as a whole
  • Effect of the use upon the potential market for or value of the copyrighted work.

These factors must be evaluated to determine whether most of them weigh in favor of or against fair use.

Principle 4: In a nonprofit educational setting, the transformative  nature of using materials for a pedagogical purpose, while ensuring that no more of the material is used than what is necessary to make the pedagogical point, generally favors a finding  of fair use. Beyond that, a careful consideration of all of the four factors will inform a balanced fair use. If you are unsure of your use, the library's Scholarly Communication librarian can help you work through a copyright analysis. 

Principle 5: Reasonable people — including judges and legislators — can and will differ in their understanding of fair use. Copyright law rarely offers a definitive meaning of fair use for any specific application. Thus, the real meaning of fair use depends on a reasoned and responsible fair use rationale. One person’s judgment and situation may not match the next, and the differences may be based on variations in facts and circumstances.

Principle 6: By acting responsibly and by making considered and intentional decisions, you can limit your potential liability; document your reasoning for fair use. Because of the flexible and interpretive nature of fair use, Congress provided significant protection for educators. Not only does the fair use exception apply particularly to educational purposes, but additional laws may limit the monetary liability that educators may potentially face. That said, educators must hold a reasonable and good-faith belief that their activities are fair use. By documenting your fair use analysis of your specific use, you will be better able to demonstrate your activities were conducted  in good faith.

Principle 7: Shortcuts or “guidelines,” such as a “10% use rule,” are not part of copyright law, and do not reflect  the entire breadth and scope of fair use protection. Fair use must be determined according to the circumstances of each situation.

IV. Obtaining Copyright Permission

Class handouts, photocopies for library reserves, online posting (e.g. Moodle)

Each faculty member is responsible for obtaining or arranging to obtain copyright permissions for classroom handouts, photocopies for library reserve use or online posting of materials (e.g., on Moodle). Please submit requests for permissions at least six weeks before the material is needed as the process can be slow, especially when dealing directly with a publisher. If permission is denied, or cannot be obtained in time, alternate material must be found.

In general, each academic department is responsible for the costs associated with securing copyright permissions.

Department administrative assistants will process requests on the Copyright Clearance Center (CCC), a centralized service for requesting permissions and paying royalties. CCC sets limits of 25% of a book and two articles per periodical issue. For further information about CCC services, consult the CCC website.

For items not listed with the CCC, contact the publisher or copyright holder directly. Many publishers now grant permissions via phone, fax, e-mail, website, etc. For assistance identifying and locating publishers, search using Google or contact the library at libraryhelp@smith.edu.

Course Packs

If you wish to use a course pack, please contact the Grecourt Book Shop, bookorders@smith.edu, 413-585-4140.

V. Frequently Asked Questions

Copyright & Fair Use

Q. Can you provide more detail about the four factors that determine fair use?

A. Fair use (Section 107 of the Copyright Act of 1976) balances the rights of copyright holders with the needs of scholars to promote teaching, research and the free exchange of ideas. Fair use defines particular circumstances in which it is permissible to use copyrighted material, free from permissions and royalties. The four factors considered in weighing fair use are:

  • Purpose and character of the use: Use in non-profit, educational teaching and research, or for criticism, commentary or news reporting, makes a finding of fair use more likely; commercial use makes a finding of fair use less likely. However, not all educational uses are fair uses.
  • Nature of the copyrighted work: Using works that are factual (e.g., historical data, scientific information, etc.) tends to weigh in favor of a finding of fair use; creative or unpublished works tend to indicate the need for copyright permission.
  • Amount and substantiality of the portion used: Use of small portions of a work usually favors a finding of fair use as long as the portion does not constitute “the heart of the work“. The more material used the greater the balance away from fair use.
  • Effect of the use upon the potential market for the work: Use that substitutes for the transformative use is more frequently used as a test in recent fair use law. First raised in a Supreme Court decision in 1994 (Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994.) It says a new work is transformative if it uses the source work in completely new or unexpected ways. Importantly, a work may be transformative even when all four of the statutory factors would traditionally weigh against fair use. Thus, before making a four-factor analysis, make a transformative use analysis: Is your use transformative? Are you using only the amount necessary to make your point?

Q. Where can I find guidelines to help determine fair use practices?

A. Many professional groups and disciplines have begun to establish best practice documents which are useful in making fair use decisions..Consult the Center for Media and Social Impact for links to the many best practice documents now available for various disciplines.

Q. May I put electronic copies of course readings on my home page or Moodle site without copyright permission?

A. Yes, in accordance with these guidelines:

  • Use materials in the public domain freely.
  • Use material freely if you own the copyright (e.g., exams, syllabi, notes).
  • Use the Publication Finder to find full text articles to link to.
  • Whenever possible, link to documents available through Library subscriptions rather than downloading them onto your own site.
  • If you mount copyrighted materials under fair use (i.e., without securing permission) keep them up only one semester AND restrict your website to class members only.

Remember: more stringent guidelines may apply to images, graphics, video, sound, etc.

Q. I want to put several articles and book chapters that I wrote up on my website. Can I do this?

A. Maybe, the work may be openly licensed. You could do a fair use analysis and you can always ask the copyright holder for permission. For journal articles tools like the Jisc Open Policy Finder can help you determine which version you can put on your personal website.

Q. May I link to other websites from my home page or from Moodle?

A. Generally, this is permitted. Include an acknowledgement to the author or creator.

Q. What about other kinds of materials for my home page or Moodle (e.g., video, audio, images)?

A. Consult the Center for Media and Social Impact site for links to best practice documents for using images and other media for teaching and research. The VRA’s Statement on the Fair Use of Images for Teaching, Research and Study is especially useful where images are concerned.

Q. How do I copyright my own materials?

A. Copyright protection is automatic for materials “fixed in a tangible medium“ (i.e., written, recorded, etc.). If you wish to register your copyright, go to the U.S. Copyright Office website. This is not required but may help if you wish to file a complaint about copyright violation. You can also attach a “some rights reserved” license that will help people know how they can use your work without seeking your permission first. See the Share Your Work page from the Creative Commons website to learn more.

Special Situations

Q. Is it okay to photocopy a book that is out of print?

A. Not necessarily, many out of print books may still be protected by copyright. Check the copyright status of the book and work through your copyright analysis for the material you want to use.

Q. If an item is not available on the out of print market, is there any way to make a copy?

A. Yes, the Libraries may make up to three copies if a thorough search shows that a copy cannot be obtained at a reasonable price. This also pertains to works in obsolete formats (e.g., 8 track tapes, beta videocassettes). As well, fair use might allow that same copying after a consideration of the four factors of fair use.

Q. May I show a video labeled “Home Use Only“ to my class?

A. Yes, this is considered permissible in face-to-face teaching for instruction (but not entertainment).

Q. May I show a video labeled “Home Use Only“ in a campus auditorium?

A. Yes, as long as the performance is not open to the public and is for instructional purposes.

Q. May I show videos owned by the Libraries for a film series?

A. Yes, if the library purchased public performance rights for each video.

Q. Some of our older films and videos are deteriorating badly and are now out of print. Can we make copies?

A. It depends, Section 108 of copyright law has many allowances for making copies of protected works for library users, for interlibrary loan, preservation and replacement. As well, fair use might allow that same copying after a consideration of the four factors of fair use.

Q. May I make slides, photographs or digital copies of images (plates, drawings, maps, charts, etc.) from a book?

A. Whenever possible, these must be purchased (or licensed) rather than photographed or scanned. If unavailable commercially or in a timely manner, one copy of an image may be made for classroom use - see Smith College Imaging Center’s Copyright Guidelines for more information.

Q. Because Smith is a nonprofit educational institution, aren’t performances of music, dance and drama allowable under fair use?

A. This is a complex area of the law. In general, performances in the classroom are permitted; any kind of public performance requires permission and/or payment of royalties. Smith contracts with major services such as ASCAP, to handle payment of performance royalties. Consult with the Music, Theatre and Dance departments for more information.

Q. Do fair use provisions also apply to software?

A. The law is unsettled, software is almost always licensed and while the license stipulates use, it is not settled if state licenses and contracts override federal copyright law. For more information see Code of Best Practices in Fair Use for Software Preservation | CMSI.

Q. I often make a back-up copy of software. Is this okay?

A. Generally, yes, as long as you retain the copy as a true back-up and only use it when the original fails.

Q. Is it all right to load single-user license software on several computers?

A. No, you need to buy multiple copies or be licensed for multiple users.

Q. May I borrow software to download on my home/office computer?

A. No, unless the software license specifically permits this. (You could download it for use and immediately delete it afterward.)

VII. Resources on the Web

Links

Guidelines

Format Website
Print Consult the chart for class use and library reserves [chart forthcoming]
Multimedia Fair Use Guidelines for Multimedia (ERIC)
Music U.S. Copyright Law: A Guide for Music Educators (National Association for Music Education)
Images General Guidelines for Using Images (Smith College Libraries)
Fair Use Fair Use Library (Center for Media & Social Impact)

VI. Smith College Copyright Contacts

For Questions About ... Contact...
Questions about copyright law, fair use, reserves, or the Copyright Clearance Center Jessica Ryan, Scholarly Communications Librarian, jryan@smith.edu 
Questions about course packs Grecourt Bookshop, x4140, bookorders@smith.edu