Proposal for UCF Art History Web Site

INTRODUCTION

As a student of the University of Central Florida who has taken the required Art History courses, it is my belief that an Art History Web Site should be created for the University. This site would be designed to replace the current slide display of the art works covered in class. Although there are many Art History Web Sites posted by other universities that contain images, their restricted access prohibits UCF students from being able to take advantage of them. Also, it is possible to search the web for the images in question, but the specific images contained in the lectures are sometimes impossible to find. It is important for the student to be able to access the specific image and concentrate on the information contained in the course rather than finding the images.

The question of copyright infringement is perceived to be the main stumbling block for the creation of such a site. When dealing with such images, two copyrights issues must be dealt with. These are the copyright of the work itself and the publication in which the work appears. The site developer following the “10% rule”- the concept that not more than 15 images or 10% of a particular publication has been reproduced- satisfies the both of these issues^1.

To follow are the sections of current and pending US Copyright law that I believe support the viability of the creation of an Art History Web site with the following restrictions:

1. The site is accessible only to UCF students currently enrolled in the corresponding Art History course.

2. The images are displayed at a resolution of 72 dots per inch and with a “watermark” that would be printed on the images. Images reproduced at this resolution and with “watermarks” do not have any commercial value.

3. The images remain on the web site for a maximum period of 15 days after the initial posting of the site.

The proposed plan to construct the site in question would follow the following schedule:

1. All the slides now owned by the Art History Department would be scanned into digital format. These archive files are for the use of the professor only.

2. The professor would chose from the archive files the slides that he has covered in his/her most recent lecture.

3. These slides will be posted on the proposed site and removed 15 days later.

This plan has several advantages. The professor retains flexibility in his/her lectures and the site will conform to the multimedia guidelines outlined in the Fair Use Guidelines for Education Multimedia, which is endorsed by the US Copyright Office^2.

The specific issues addressed in this document are fair use issues, definition of “classroom”, applicability of the term “multimedia project” and definition of “legal copy.” Included in the appendix are recommendations from web masters of other university art history web sites.

The documents that I have found to support my proposal are:

1. Chapter 1 of title 17 of the United States Copyright Code^3..

2. Technology, Education and Copyright Harmonization Act of 2001^3..

3. Proposed Amendments to the Technology, Education and Copyright Harmonization Act of 2001^4.

4. Fair Use Guidelines for Education Multimedia^5.

5. Statement of the Register of Copyrights before the Web-Based Commission5. United States Senate, July 20, 2000.

6. Circular 21 “Reproduction of Copyrighted Works by Educators and Librarians “Fair Use” issues ⁶

I believe that UCF can claim “fair use” by satisfying two of the conditions. The site is to be used soley for educational purposes and the low resolution and watermarks’ presence on the images negate any commercial value of any ensuring reproductions.

Under Copyright Law of the United States of America and related laws contained in Title 17 of the United States Code, section 107, Fair use is defined as:

107. Limitations on exclusive rights: Fair use
Chapter 1 of title 17 of the United States Copyright Code
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-

(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.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors⁷.

This definition is repeated in “Fair use Guidelines for Education Multimedia” in the 1.1 Preamble. In the “US Copyright Office, Register’s Statement , July 20, 2000, section IV”, it is stated :

As written, section 110(2) has only limited application to courses offered over a digital network. Because it exempts only acts of performance or display, it would not authorize the acts of reproduction or distribution involved in this type of digital transmission. In addition, students who choose to take a distance course without special circumstances that prevent their attendance in classrooms may not qualify as eligible recipients.

Fair use is the broadest and most general limitation on the exclusive rights of copyright owners, and can exempt distance education uses not covered by the specific instructional exemptions⁸.

In Circular 21 “Reproduction of Copyrighted Works by Educators and Librarians⁹”, section 107 of the current copy right law is reiterated in Section C.1 on Fair Use and paragraph C.2.A and further states:

“Notwithstanding the provisions of section 106, the fair use of a copyrightedwork, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news report-ing, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copy-right.9”

“. However, the Committee notes that the Ad Hoc group did include representatives of higher education, that the stated “purpose of the . . . guidelines is to state the minimumand not the maximum standards of educational fair use” and that the agreement acknowledges “there may be instances in which copying which does not fall within the guidelines . . . may nonetheless be permitted under the criteria of fair use.¹⁰”

And in 3.C:

House bill

The House bill amended section 107 in two respects: in the general statement of the fair use doctrine it added a specific reference to multiple copies for classroom use, andit amplified the statement of the first of the criteria to be used in judging fair use (the purpose and character of the use) by referring to the commercial nature of nonprofit educational purposes of the use.¹¹

“Statement of the Register of Copyrights before the Web-Based Commission” section VI entitled “Should the law be changed?” states:

“...There is virtual unanimity that the doctrine of fair use is fully applicable to uses of copyrighted works in the digital environment, including in distance education¹²...”

In Section VI (A) “Analysis and Recommendations”

“...The exemptions in sections 110(1) and (2) embody a policy determination that performances or displays of copyrighted works in the course of systematic instruction should be permitted without the need to obtain a license or rely on fair use¹³...”

Definition of “Classroom”

I believe that the following excerpts include an Art History Web site to be covered under classroom use.

In Chapter 1 of title 17 of the United States Copyright Code, section 110 section 2, it is stated:

Notwithstanding the provisions of section 106, the following are not infringements of copyright:

... (A) the performance or display is a regular part of the systematic instructional activities of a governmental body or a nonprofit educational institution; and

(B) the performance or display is directly related and of material assistance to the teaching content of the transmission;¹⁴ ....

In Technology, Education and Copyright Harmonization Act of 2001, the following amendments to section 110 (2) have been proposed:

SEC. C. EXEMPTION OF CERTAIN PERFORMANCES AND DISPLAYS FOR EDUCATIONAL USES

Section 110(2) of title 17, United States code is amended—

(3) by striking subparagraph (C) [which reads]

...performance of a nondramatic literary or musical work or of a or of a dramatic or musical work of religious nature, or a display of a work, in the course of services at a place or worship or other religious assembly; and inserting the following

(C) the transmission is made solely for, and, to the extent technologically feasible, the reception of transmission is limited to—

(i) students officially enrolled in the course for which the transmission is made...

(4) by adding the following:

...(E) the transmitting body or institution--

(i) institutes policies regarding copyright, provides informational materials to faculty, students and relevant staff members that accurately describe, and promote compliance with, the laws of the United States relating to copyright, and provides notice to students that materials used in connection with the course may be subject to copyright protection; and

(ii) in the case of digital transmissions, applies technological measures that reasonably prevent unauthorized access to and dissemination of the work, and does not intentionally interfere with technological measures used by the copyright owner to protect the work¹⁵.

The “Fair Use Guidelines for Education Multimedia”’, which has been endorsed by the US Copyright Office , describes the “Permitted uses of education multimedia projects created under these guidelines in Paragraph 3.2.3:

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 material¹⁷

In the “Statement of the Register of Copyrights before the Web-Based Education Commission, United States Senate, July 20, 200015”, Section I:

“. An individual course may contain both classroom and distance education components....”

“...Educational institutions offering distance education draw on library resources in several ways, including to provide support for online courses and to provide access to supplemental materials in digital form¹⁸.”

Definition of a “Legal Copy”

I believe that the posting of images on the above mentioned web site would not infringe copyright law due to the passages listed below.

“Fair Use Guidelines for Education Multimedia, section 1.1” states:

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 uses¹⁹

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 material²⁰.

Under the “10% rule” of the same document.

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 2²¹.

The “Statement of the Register of Copyrights before the Web-Based Education Commission, United States Senate, July 20, 2000, Section 1II “Technologies Involved in Digital Distance Education” states:

“...For example, students could be allowed to view the work or print a single copy, but not to save it to disk or distribute it to others electronically. Streaming formats, which do not facilitate the making of copies, and the use of low resolution digital copies, also offer some degree of protection against redistribution.

Technologies for embedding information in digital works to identify and track usage are also in development and use, with the practice of digital watermarking the most effective. Using commercially available software or services, these identifiers can be used as a search object to find unauthorized copies of some types of works on the World Wide Web²².

Section IV of the same document states:

Different copyright rights are implicated by different educational activities, depending in part on the technologies used. When a performance or display of a work is accomplished by means of a digital network transmission, temporary RAM copies are made in the computers through which the material passes, by virtue of the technological process. As a result, not only the rights of public performance or display are implicated, but also the rights of reproduction and/or distribution. This does not mean that the use is necessarily an infringement. Permission to use the work could be granted by the copyright owner, either through an express license or implied from the circumstances. If not, the use may fall within one of the various exemptions in the Copyright Act²³

Section VI “Should the Current Law Be Changed”, subsection B “Analysis and Recommendations” states:

The exemptions in sections 110(1) and (2) embody a policy determination that performances or displays of copyrighted works in the course of systematic instruction should be permitted without the need to obtain a license or rely on fair use.²⁴

Circular 21 “Reproduction of Copyrighted Works by Educators and Librarians Section B, paragraph 2” states:

“Reproduction” under clause (1) of section 106 is to be distinguished from “display” under clause (5). For a work to be “reproduced,” its fixation in tangible form must be “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” Thus, the showing of images on a screen or tube would not be a violation of clause (1), although it might come within the scope of clause (5)²⁵.

Limitations on exclusive rights: Reproduction by libraries and archives

I believe that the right to create such a website is protected by Chapter 1 of title 17 of the United States Copyright Code, section 108 (a), which states:

(a) Except as otherwise provided in this title and notwithstanding the provisions of section 106, it is not an infringement of copyright for a library or archives, or any of its employees acting within the scope of their employment, to reproduce no more than one copy or phonorecord of a work, except as provided in subsections (b) and (c), or to distribute such copy or phonorecord, under the conditions specified by this section, if-

(1) the reproduction or distribution is made without any purpose of direct or indirect commercial advantage;

(2) the collections of the library or archives are (i) open to the public, or (ii) available not only to researchers affiliated with the library or archives or with the institution of which it is a part, but also to other persons doing research in a specialized field; and

(3) the reproduction or distribution of the work includes a notice of copyright that appears on the copy or phonorecord that is reproduced under the provisions of this section, or includes a legend stating that the work may be protected by copy-right if no such notice can be found on the copy or phonorecord that is reproduced under the provisions of this section²⁶

The application of this section is reiterated in Circular 21 “Reproduction of Copyrighted Works by Educators and Librarians section D.1 “Reproduction by Libraries and Archives²⁷

Classification of the proposed Art History Web Site as a multimedia project.

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...

2.2 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...

3.2 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:

3.2.3 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....²⁹

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.

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 (C, 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 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 multimedia fair use guidelines and are restricted from further use³⁰.

This proposed Art History web site would not only assist the present and future students of UCF in the study of this overwhelmingly intensive class, it would also help bring the level of technology of the Art Department up to modern-day standards.

REFERENCES

2. Fair Use Guidelines for Educational Multimedia
http://www.adec.edu/admin/papers/fair10-17.html

3. Copyright Law of the United States of America and related laws contained in Title 17 of the United States Code
http://www.loc.gov/copyright/title17

4. Technology, Education and Copyright Harmonization Act of 2001
http://www.loc.gov/copyright/legislation/

4a. Technology, Education and Copyright Harmonization Act of 2001: As reported to the US Senate6/6/01
http://www.loc.gov/copyright/legislation/

5. Fair Use Guidelines for Educational Multimedia
http://www.adec.edu/admin/papers/fair10-17.html

6. Statement of the Register of Copyrights before the Web-Based Commission, United States Senate, July 20, 2000.
http://lcweb.loc.gov/copyright/docs/regstat72000.html

7. Copyright Law of the United States of America and related laws contained in Title 17 of the United States Code sec 107
http://www.loc.gov/copyright/title17/92chap1.html#107

8. Fair Use Guidelines for Educational Multimedia, section 4.2.4
http://www.adec.edu/admin/papers/fair10-17.html

9. Circular 21, “Reproduction of Copyrighted Works by Educators and Librarians” US Copyright Office
http://www.loc.gov/copyright/circs/circ21.pdf

10. ibid

11. ibid

12. Statement of the Register of Copyrights before the Web-Based Commission, United States Senate, July 20, 2000.
http://lcweb.loc.gov/copyright/docs/regstat72000.html

13. ibid

14. Copyright Law of the United States of America and related laws contained in Title 17 of the United States Code sec 107
http://www.loc.gov/copyright/title17/92chap1.html#107

15. Technology, Education and Copyright Harmonization Act of 2001
http://thomas.loc.gov/cgi-bin/query/C?c107:./temp/~c107N9HLbV

16. Fair Use Guidelines for Educational Multimedia
http://www.adec.edu/admin/papers/fair10-17.html

17. Statement of the Register of Copyrights before the Web-Based Commission, United States Senate, July 20, 2000.
http://lcweb.loc.gov/copyright/docs/regstat72000.html

18. ibid

19. Fair Use Guidelines for Educational Multimedia
http://www.adec.edu/admin/papers/fair10-17.html

20. ibid

21. ibid

22. Statement of the Register of Copyrights before the Web-Based Commission, United States Senate, July 20, 2000.
http://lcweb.loc.gov/copyright/docs/regstat72000.html

23. ibid

24. ibid

25. Circular 21, “Reproduction of Copyrighted Works by Educators and Librarians” US Copyright Office
http://www.loc.gov/copyright/circs/circ21.pdf

26. Copyright Law of the United States of America and related laws contained in Title 17 of the United States Code sec 107
http://www.loc.gov/copyright/title17/92chap1.html#107

27. Circular 21, “Reproduction of Copyrighted Works by Educators and Librarians” US Copyright Office
http://www.loc.gov/copyright/circs/circ21.pdf

28. Fair Use Guidelines for Educational Multimedia
http://www.adec.edu/admin/papers/fair10-17.html

29. ibid

30. ibid