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Smith College Copyright Policies

I. Introduction

The purpose of copyright, as articulated in the in the United States Constitution, is to “promote the Progress of Science and useful Arts.“ As Smith College realizes its mission to educate its students, and to conduct research in the arts and sciences or engage in the performing and creative arts, the Smith College community has a special responsibility towards the use of copyrighted works. 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 are acutely aware of the importance of striking an appropriate balance, as US law does, 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. Policy on the Use of Copyrighted Works for 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 full support of the fair use of copyrighted works by the Smith College community under the provisions of applicable laws. The Smith College community are expected to have knowledge of, and make reasonable application of, the four factors of fair use (see below). Failure to comply with copyright laws and to act in good faith in the fair use of copyrighted material will result in a Smith College community member assuming liability for his or her actions and may result in disciplinary action.

III. Copyright Protections and 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 the fair use balancing test. References (links) to appropriate sections of the Practical Assistance (see below) are also made to explain concepts included in these principles.

Copyright law is inherently complex. A 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 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:

Four Factors Used to Determine Fair Use

  • Purpose or character of the use
  • Nature of the copyrighted work being used
  • Amount and substantiality of the work being used
  • Effect of the use on the market for or value of the original

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

Principle 4: Nonprofit educational purposes are generally favored in the application of the four factors of fair use, but an educational use does not by itself make the use a “fair use.“ One must always consider and weigh all four factors of fair use together. The educational purpose of Smith College will usually weight the first of the four factors, the purpose or character of the use, in favor of fair use. However, an educational use does not mean that the use is, by that factor alone, a fair use. All four factors must be weighed in making a decision.

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 application of the four factors. 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 a 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. In any event, however, educators must hold a reasonable and good-faith belief that their activities are fair use in light of the four factors. By documenting your application of the four factors of fair use to your specific use, you will be better able to demonstrate your activities were done in good faith.

Principle 7: Guidelines, while sometimes helpful, do not determine the entire breadth and scope of fair use protection. In an attempt to clarify the meaning of fair use for common situations, various private parties have negotiated guidelines, but those externally developed guidelines are sometimes inappropriate for the realistic application of fair use to higher education. Such guidelines may be consulted by courts in making fair use determinations, but the guidelines are not binding either as limiting permissible activity or as providing safe harbors. Fair use must be determined according to the circumstances of each situation.

IV. Practical Assistance: Frequently Asked Questions

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:

  1. The 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.
  2. The 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.
  3. The 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.
  4. The effect of the use upon the potential market for the work. Use that substitutes for the purchase of a book, reprint or subscription weighs against a finding of fair use.

Clearly these factors are subject to varying interpretations and applications. For further guidance, see a Fair Use Analysis Checklist from Columbia University.

Q. Isn’t any use in an educational setting considered fair use?

A. Unfortunately, not. Purpose and character of the use (i.e., educational) is only one of four factors determining fair use. Educational use does favor fair use but other factors may weigh against fair use (e.g., nature of the work, amount copied, effect on the market).

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. See the University of Minnesota’s Using Existing Works page for information on understanding the rules of fair use. 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. Yes, but only under fair use or if you retained the appropriate copyright privileges. Otherwise, check with the publisher or rights holder.

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.

Out of print works

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

A. No, many out of print books are still protected by copyright. Check with the Libraries about buying a copy through the out of print market or borrowing a copy through interlibrary loan.

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.

Video & Film

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. May I copy a rental video or a preview copy to use later?

A. No!

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.

Visual Images

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. Can these copies be added to a slide collection for future use?

A. No, not without securing permission.

Performance (music, dance, drama)

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.

Software

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 unclear 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 pc?

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

V. How to Obtain 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, costs of securing copyright permission are charged to Smith’s copyright compliance fund, managed by the Purchasing Office. Department administrative assistants have the account numbers.

Whenever possible, use the Copyright Clearance Center (CCC), a centralized service for requesting permissions and paying royalties. Department administrative assistants will process requests on the CCC website. CCC sets limits of 25% of a book and two articles per periodical issue. For further information about CCC services, contact Susan Fliss, or 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 Neilson Library service desk, x2910, or the branch libraries

Course packs

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

VI. Smith College Copyright Contacts

For Questions About ... Contact...
Questions about copyright law, fair use, reserves, or the Copyright Clearance Center Susan Fliss, x2902, Dean of Libraries
Questions about course packs Grecourt Bookshop, x4140, bookorders@smith.edu

VII. Copyright Resources on the Web

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)