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Stanford Copyright Reminder 2010-11

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             Using Facebook as part of a class assignment, linking materials to a course website, creating a multi-media presentation for a conference, and even listening to music with friends are just a few examples of everyday activities that have copyright implications. Since copyright is so ingrained in daily campus life, it is important for everyone in the Stanford community to have a working understanding of copyright law, especially as it intersects with the use of technology on campus. This document explains the fundamental elements of copyright law and is intended to inform and train the University community on copyright law.

            Members of the Stanford community who do not find answers to their questions in this Reminder should feel free to contact Lauren Schoenthaler at in the Office of the General Counsel for assistance.

This Reminder covers:


File-Sharing and copyright law.  Peer-to-peer (P2P) file-sharing is fantastic legal technology that allows individual users of the internet to directly exchange files with each other. Problems arise, however, when file-sharing programs are used to download and share copyrighted works without permission from the copyright owner -- like software, music, movies, TV shows, games and images. Specifically, unauthorized distribution of copyrighted material, including unauthorized P2P file-sharing, may result in civil and criminal liabilities in addition to university sanctions.  Both the person who makes a copy of a copyrighted work available for unlawful download and the person who receives or downloads an illegal copy have violated copyright laws and Stanford policies. To be clear, even with regard to lawfully purchased content (such as a movie or a song), absent permission from the copyright owner (e.g., the record label or movie studio), it is illegal to allow others to make and keep a copy of that work.  

Civil & Criminal File-Sharing Consequences.  A copyright owner or an authorized agent may lawfully scan Internet traffic and send a complaint (under the Digital Millennium Copyright Act) to Stanford as the Internet Service Provider. Alternatively, a copyright holder may file a “John Doe” lawsuit against the IP address and Stanford would have to provide the identity of the Stanford network user in response to a valid subpoena. Copyright damages are usually statutory – that is, determined not by actual damages but by statute. The minimum damages amount for unintentional infringement is $200 per copyright violation (e.g., file sharing one song or one movie) and willful violations can result in penalties of up to $150,000 per violation. 17 U.S.C. § 504. File-sharing can also result in criminal prosecutions and sentences of up to 10 years in prison. 17 U.S.C. § 506; 18 U.S.C. § 2319. Every year since 2003, copyright owners have brought claims against individual Stanford students and staff members who have engaged in unlawful file-sharing, and Stanford students have collectively paid out an estimated $150,000 to resolve their claims.  

Stanford File-Sharing Consequences.  Administrative Guide Memo 62 (, prohibits the unlawful copying or distribution of copyrighted materials. Stanford follows up and responds to every copyright complaint. Do not share your passwords. You are responsible for what happens on your system.

Stanford's Copyright Complaint Policy for Students.  Upon receipt of a first copyright complaint, the Information Security Office has an automated process to notify the student. The student has to respond to the complaint within a short timeframe provided in the notification, usually 2 days. In addition to responding to the complaint, the student must take and pass a short quiz on copyright law and file-sharing. If the student does not respond within the allotted timeframe, the student’s Internet connection will be terminated and the student may be charged a $100 fee to be reconnected to the Internet. Upon receipt of a second complaint, a student’s Internet connection may be terminated immediately. A student may be charged $500 to be reconnected to the Internet. The student’s Residence Dean (undergrad) or Department Chair (graduate student) may be notified about the incident. On a rare third complaint, a student’s Internet connection will be immediately disconnected. The matter will be referred to Judicial Affairs, and the student may be charged up to $1000 to obtain new Internet privileges. . 

Stanford's Copyright Complaint Policy for Faculty and Staff. When staff receive a first or second complaint, the matter is referred to a supervisor and to HR. Discipline up to and including termination may be imposed. If a faculty member at Stanford receives more than one complaint, the matter is referred to a Department Chair. Stanford will likely terminate Stanford supported home DSL connections on receipt of a second complaint. Upon receipt of a very rare third complaint, administratively, Stanford terminates Internet connectivity, including disabling the SUNet ID, and the matter is referred on for discipline: Faculty are referred to the Provost; and staff are referred to HR and can expect to be terminated.

Technological Deterrents. Stanford has the following technology-based deterrents to combat unlawful file-sharing:

Free & Legal Entertainment on the Internet! There are multiple options to access free and legal music, TV and movies. The MPAA has an entire page listing many legal resources to access television and movies from your computer, including a listing to all major networks (which generally post new shows a day after original airing). See

In particular, we recommend:

  • TV & Movies: Hulu, provides access to recent TV shows and movies on a model supported by limited advertising.
  • Music: Pandora Free Internet Radio, provides targeted music selections based on artist or song preferences of the individual listener.

The Higher Education Opportunities Act of 2008 (HEOA). The HEOA required the Department of Education to develop regulations imposing obligations on universities relating to the effective enforcement of unlawful file-sharing on campuses. In October 2009, the regulations were finalized. See CFR 668.14(b)(30) and 668.42(a)(10), After review of these regulations, Stanford was satisfied that it already had in place each of the required mechanisms to deter unlawful file-sharing on campus. Stanford’s full plan under the HEOA is located at,

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The Law. Copyright laws protect original works of authorship.  The Copyright Act gives the owner of a copyright the rights to:

  • make copies,
  • distribute the work,
  • display or perform the work publicly, and
  • create derivative works. 

These exclusive rights are subject to only limited exceptions. 

In academia, the five major exceptions to the copyright owner’s exclusive rights are: 

  • fair use,
  • the face-to-face teaching exception,
  • the distance-learning exception (TEACH Act),
  • the first-sale doctrine, and
  • the library and archives exception. 

These five exceptions are described below.  Note that there is no over-arching copyright exception for academic uses; academic journals and text publishers expect royalties for use of their content.

If No Exception, Seek Permission.  Unless an exception to the copyright owner’s exclusive rights applies, you must obtain permission from the copyright owner to copy, distribute, display or perform a copyrighted work in any medium for any purpose.

Scope of Copyright. Copyright interests attach to nearly all forms of captured content, including traditional works like books, photographs, architectural drawings, music, drama and sculpture.  The laws also adapt to changes in technologies, and include in their scope modern forms of works like movies, electronic media, web pages, software, multimedia works and some databases.

No Mark or Registration Necessary.
A copyright interest attaches to an original work that is “fixed in any tangible medium of expression” (i.e., a medium that is captured in an accessible form of content) at the work’s creation.  Registration is not required to obtain a copyright, though registration may be required to enforce a copyright in federal courts. Works published after 1989 also do not need to have a copyright notice (i.e., © Stanford University 2010) to enjoy copyright protection.  So if in doubt, assume copyright applies.

Penalties. The penalties for copyright infringement can be harsh.  Under the Copyright laws, a court may award up to $150,000 in civil statutory damages for each separate willful infringement; copyright infringement can also be a crime under federal law.  Under Stanford policies, violation of copyright law may result in administrative action, such as loss of networking privileges and SUNet ID, or disciplinary action up to and including termination for faculty and staff and expulsion for students. (See the Peer-to-Peer File-Sharing section above for more information on copyright penalties.)

Public Domain Works. Not all works enjoy copyright protection, and all works eventually fall into the public domain. Once a work is in the public domain it may be freely used without restriction (unless accepting access to a work was done under a license, in which case the terms of the license will control).

Domestic Works: There are some broad guidelines that works first published in the U.S. before 1923 are in the public domain. Domestic works published from 1923 through 1963 are protected for 95 years from the publication date, if the copyright owner renewed the work, or if the work remained protected by copyright under another country’s laws. Many works published from 1923 through 1963 did fall into the public domain. With a grant from the Mellon Foundation, Stanford University Libraries created the Copyright Renewal Database,, which searches renewal records of books published between 1923 through 1963 (although unfortunately the database does not capture information about the possibility of foreign copyright protection). Works published from 1963 through 1978 are protected for 95 years from publication date. Since 1978, works generally have copyright protection for the life of the author plus 70 years. For more information about when a domestic work enters into the public domain, please see the excellent chart by Peter Hirtle, (published under a Creative Commons license).

U.S. Government Works: U.S. Government works (but not local or state government works) never have copyright protection and enter the public domain upon publication.

International Works: Like domestic works, international works also fall into the public domain. By international treaty, we need to respect works that remain in copyright in foreign countries for the full extent of their copyright terms. Many countries have copyright terms that run for the life of the author plus 50 or 70 years. Unless there is specific knowledge to the contrary with respect to a particular work, it is reasonable to expect that works 150 years old and older have fallen into the public domain.

Stanford encourages the use of Public Domain materials, which are widely available on the Internet. See, e.g., Project Gutenberg,, Google Books, (in advanced search, click on Full Text Only).

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Fair Use Defined. The Fair Use Doctrine provides for limited use of copyrighted materials for educational and research purposes without permission from the owners. It is not a blanket exemption. Instead, each proposed use must be analyzed under a four-part test.

Fair Use Applied.The four-part test to determine fair use is necessarily vague and fact-dependent.  In some instances, two reasonable people could apply the four factors to the same facts and reach opposite conclusions.  If the weighing and balancing analysis below does not provide an answer, please refer to the Copyright and Fair Use Resources section below.

Fair Use Four Factor Test.

1. What is the character of the use? Educational, nonprofit and personal use is favored for fair use, while commercial use is disfavored.  However, the fact that a use is educational or nonprofit in nature does not in and of itself mean the use is necessarily fair.  More important than the educational or nonprofit nature of the use is whether the use is “transformative” in nature.  A use is transformative if it builds upon, criticizes, comments on, parodies or otherwise adds something new to the original work.  Put another way, the question is whether the new use, in the words of the Supreme Court, merely “supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character”. Campbell v. Acuff Rose Music, 510 U.S. 569 (1994) (internal citations omitted).

2. What is the nature of the work to be used? Use of a work that is factual in nature weighs toward a finding of fair use. Use of imaginative works is more likely to require permission.

3. What is the amount and substantiality of the portion to be used? Using only a small portion of a copyrighted material tips towards fair use, while using large portions indicates a need for permission. Be careful with this factor, however; a court has held that copying only 5% of a book was not fair use.

4. Will the use negatively affect the value of the copyrighted material? Where a work is available for purchase or license at a reasonable cost, copying all or a significant portion of the work (in lieu of purchasing or licensing a sufficient number of “authorized” copies) would likely be unfair. If only a small portion of a work is to be copied, and one would likely forego using the portion if permission were required, then the balance tips towards fair use.

Good Faith Fair Use Defense. Even if a copyright infringement occurs, a court may refuse to award damages if the infringer reasonably believed that the use was fair.

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Copyright law provides that the owner of lawfully obtained copyrighted content may dispose of that copy (lend, rent, sell, give-away, or throw away) without permission of the copyright owner.  Under the first-sale doctrine, a faculty member could lend out his copy of a book or a DVD to students in his class.  This exception does not apply to recorded music, and many software licenses prohibit the use of the first-sale doctrine.  Additionally, note that posting digital content on the web does not fall within the first-sale doctrine as display is one of the exclusive rights of a copyright holder.  (Providing a link to the copyright owner’s website is lawful and recommended.)

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Performance or Display of Copyrighted Materials During Face-to-Face Teaching. The Copyright Act provides an exemption to perform or display copyrighted materials during face-to-face teaching activities.  Such use does not require the author’s permission.  For example, it is permissible to show a full-length motion picture in class as part of the classroom learning.  Note, however, that this exemption does not permit copying or distributing a work -- only displaying or performing it during class time.

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Distance Learning and the TEACH Act. The Teach Act extends in a limited way the Face-to-Face Teaching exemption to mediated distance learning courses. The TEACH Act is fairly narrow, and it is rarely applicable at Stanford, as Stanford has very few mediated distance online courses. (This Act does not apply to iTunes U courses; faculty will need to rely on the fair use doctrine for such courses.) When the Act does apply, transmissions of performances of entire non-dramatic works and reasonable and limited portions of any other performance or audiovisual work may be made without obtaining permission from the copyright owner. To take advantage of the Act, the following strict requirements must be observed:

The performance or display must be:

  • A regular part of mediated instructional activity;
  • Made by, at the direction of, or under the supervision of the instructor; and
  • Directly related and of material assistance to the content of the course.

Further, the following technological restraints must be in effect:
  • The content must be accessible only to those students who are enrolled in the course;
  • The content must be accessible only for the duration of a class session;
  • To the extent technologically possible, the content must be protected from further distribution (“downstream-controlled”); and
  • To the extent technologically possible, the content must not be subject to retention by students.

All material displayed under the TEACH Act must contain the following notice:

The materials on this course website are only for the use of students enrolled in this course for purposes associated with this course and may not be retained or further disseminated.  The materials on this course website may be protected by copyright; any further use of this material may be in violation of federal copyright law.

You may digitize works for display from an analog format provided that:
  • No existing licensed digital copy is available for use at the University; and
  • Only the portion needed for transmission is digitized (i.e., only a reasonably limited portion).

Note: The TEACH Act does NOT permit:

  • Uploading material such as textbooks, coursepacks or other resources typically purchased by students to review outside of the classroom.  (The TEACH Act only applies to works that an instructor would show or play during class.  Any uploading of material for (non-classroom) study purposes must comply with the copyright laws, including fair use principles);
  • Uploading materials specifically marketed as distance education courses; and
  • Uploading material that was obtained illegally.

Georgia Harper, an attorney with the University of Texas’ library system has developed an excellent checklist to determine if “you are ready to use the TEACH Act.”; Stanford’s designated TEACH Act agent is Lauren Schoenthaler, Senior University Counsel, at or 723-9611. 

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In General. Digitally created works and analog works transformed into a digital format and placed on the Internet are protected by copyright laws.

Exercise Caution When Downloading. Be mindful of copyright/fair use principles when downloading material from the Internet.  Just because a work is posted on the Internet does not mean that the owner of the copyright in it has given you permission to make copies or distribute the work to others.  Note too that material may have been placed on the Internet without the author’s permission

Exercise Caution When Uploading. Be especially careful of copyright/fair use principles when uploading material to the Internet.  It might be perfectly acceptable under the fair use doctrine to include several graphs from various articles to be included in a paper written for class; it is probably not a fair use however, to publish those graphs to the world through a posting of the same paper on the Internet.

Protect the Copyright. Electronic distribution of a copyrighted work should state: This work is protected by copyright laws and is provided for educational instruction only.  Any infringing use may be subject to disciplinary action and/or civil or criminal liability as provided by law.

DMCA & Access Circumvention. The Digital Millennium Copyright Act of 1998 (17 U.S.C. § 1201(a)(1)) prohibits the circumvention of technological measures that control access to copyrighted works (i.e., digital rights management technologies). Until this year, that prohibition even prevented circumventing such measures to access only a small portion that would be justified under the Fair Use Doctrine (e.g., a clip of a film). In 2010, the Librarian of Congress has recognized that circumvention to access small portions for educational uses by college and university professors and students is acceptable, and will no longer be subject to the prohibition.

Link to it! It is generally acceptable to point others to material posted on the Internet by providing a link to the website.  The link itself is not a copy of the content -- it is merely a direction to content.  Because the link-provider is not making any copies, linking is generally outside the boundaries of copyright law.  The exception is that it could be contributory infringement to provide a link to a website knowingly hosting copyrighted material unlawfully.  So, link to publishing sources directly, such as journals or newspapers.

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Faculty Initiated Use of Online Collaboration Tools & Resources, such as social media sites, blogs, wikis, etc. There is no question that for certain courses the use and reliance on websites and collaboration tools will enhance the educational experience. It is preferable for such tools to be hosted by Stanford to reduce concerns regarding content ownership, the confidentiality of student information, and the security of third-party websites. Third-party tools and websites can be appropriate to use where there is no comparable Stanford tool available. Many service providers, however, require individual users to sign up for an account and agree to terms of use in exchange for use of the services. Faculty should review terms of use, and pay attention to content ownership concerns (e.g., are students required to give away or license their copyright interests in student-generated content to the service?), privacy concerns (e.g., can student control the distribution of their own student-generated content?) and use of the content for non-Stanford purposes (e.g., will the service provider keep a copy of the student-generated content for data-mining or other non-Stanford related purposes?). Faculty should notify students in syllabi when third-party tools will be used in a course, and should alert students to the terms of use. Faculty should also work with students who are not comfortable signing on to particular third-party terms of use, including, where possible, enabling a student to participate in the course without relying on the third-party tools. For more information, see,

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Faculty Initiated Capture & Broadcasting of Courses. Before recording and broadcasting a Stanford course, faculty must consider a number of issues. These include intellectual property and privacy issues, and Stanford copyright and videotaping policies. Certain classes may not be appropriate for public consumption. A few examples include classes that rely on substantial in-class use and display of third-party copyrighted content; classes involving the discussion of identifiable patients or research subjects; and classes requiring substantial class participation by students who may be made uncomfortable by the idea that their thoughts will be broadcast to the world. Students must have advance notice that a course will be recorded and broadcast; an area of the room should be set aside for students who wish to remain off-camera; faculty should make themselves available to answer student questions off-camera (e.g., during office hours). There are several groups that faculty may work with to determine if it makes sense broadcast a particular course or lecture, including Stanford’s iTunes U at, Jeremy Sabol, at the Center for Teaching and Learning (CTL), and Lauren Schoenthaler,, in the legal office.

Student Intiated Use of Recording Devices in Class. Students may not record (audio and/or video) lectures absent the express permission of the faculty leading the course, and, if applicable, guest speakers.  When permission is granted, students agree to use such recordings only for personal use and agree not to post such recordings on the Internet, or otherwise distribute them.  Students needing recordings of lectures for disability-related reasons should contact the Office of Accessible Education,

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Electronic CoursePacks and CourseWork Software. Most courses use a central website portal for access to class information and reading lists. Faculty and students may post or link to copyrighted materials on password protected course sites only in compliance with copyright principles. Prior to digitizing copyrighted materials, faculty should review Stanford University Libraries’ (SUL) electronic holdings to determine if a pre-existing license for the content already exists. SUL has secured licenses to tens of thousands of online works, and many other works are available electronically to the public through licenses, such as Creative Commons licenses. Additionally, please see the Public Domain section for references to a few of the excellent digitization projects that are making public domain content available online. Similarly, instead of creating a digital copy of a work, if possible, faculty members are encouraged to provide links to the content-owner’s website, such as to a news service. If these options are not available, digitizing content is acceptable in limited circumstances. The faculty member must consider whether the use is a fair use -- such as a single, recent news article, or a few images -- or whether permission is necessary from the copyright owner -- such as a few chapters from a textbook. A sound guideline is that if copyright clearance were necessary to place something into a coursepack, then copyright clearance is necessary to place it into a class website. The preferred online course management system at Stanford is CourseWork, which is located at CourseWork provides a web-based document bank and password-protected access system to course participants only.

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Conference on Fair Use Guidelines for in-class presentations:  “Educators may incorporate portions of lawfully acquired copyrighted works when producing their own educational multimedia programs.”

No more than 10% or 3 minutes (whichever is less) of motion-based works;
No more than 10% or 30 seconds (whichever is less) of a song or video;
No more than 10% of a text; and
Entire photographs or illustrations may be used provided that no more than 10% or 15 images
(whichever is less) comes from any one source.

For in-class presentations that will not be posted on the public Internet, these guidelines are intended to be suggestions and are not set in stone.  But, for any multi-media presentation that is to be posted onto the Internet or sold commercially, these guidelines do not apply.  Posting to the Internet even a single copyrighted image within a presentation, such as a political cartoon, may not be a fair use.

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Library Exemption for Reproduction of Copyrighted Works. Copyright laws provide certain exemptions for libraries and archives to reproduce copyrighted works.

Filing a Course Reserve.Some libraries at Stanford will not accept multiple photocopies of copyrighted materials needed for course reserves without first having permission from the copyright holder.  Other libraries on campus will accept a limited number of photocopies for course reserves.  Consult individual libraries for their policies.  The Stanford University Libraries’ policy on course reserve is located at

Allow Several Months for Course Reserve Permission. Note that filling course reserve requirements may take two to three months before the quarter begins if the library does not already have a copy of the publication and copyright permission is needed.

. For information about reserve operations in campus libraries, contact the relevant library (see

Fax for both print and media reserves: (650) 723-3992
Print Reserves: Call the Loan Desk at Green Library (650) 723-1493 or email
Media Reserves: (650) 723-9394
Joe Leggette, Media and Reserves Specialist, (650) 725-1179,

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In General. If an exception (such as fair use, the library exception, face-to-face teaching activities or distance education) is not clearly available, permission to use a copyrighted work must be obtained from the owner of the copyright holder.  A request to use copyrighted material usually can be sent to the permission department of the publisher of the work.  Assume four to six weeks for a request to be processed.  Permission requests should contain:

1.       Title, author and/or editor, and edition.
2.       Exact material to be used.
3.       Number of copies to be made.
4.       Intended use of the material, e.g., educational.
5.       Form of distribution, e.g., hard copy to classroom, posted on Internet with password protection.
6.       Whether material is to be sold (e.g., as part of a coursepack).

Journal Articles. The Stanford libraries have blanket copyright permission from many journals. Before forwarding a request for an article, check with the appropriate library to see if there is a blanket permission covering the article you would like to use.

Copyright Clearance Center (CCC). The CCC is able to give permission to use a wide number of materials for a fee. Please contact CCC at or (978) 750-8400.

Evidence of Permission. Written permission should be obtained and kept by the academic department. If oral permission only is obtained, a written record should be kept of the oral permission.

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Research Policy Handbook Section 5.2. This Copyright Reminder primarily addresses the use of third party copyrighted content. Stanford University Research Policy Handbook Section 5.2 governs the creation of copyrighted works at Stanford and by Stanford faculty, staff, students and affiliates. The general principle states:

Copyright is the ownership and control of the intellectual property in original works of authorship which are subject to copyright law.  It is the policy of the University that all rights in copyright shall remain with the creator unless the work is a work-for-hire (and copyright vests in the University under copyright law), is supported by a direct allocation of funds through the University for the pursuit of a specific project, is commissioned by the University, makes significant use of University resources or personnel, or is otherwise subject to contractual obligations.

Please review the entire policy at

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Stanford generally* does not mandate any copyright position that its community members should take when publishing articles or books.  This section is provided as information to our community.

(*The School of Education has an Open Access Initiative described below.)

Publishing Information for research not supported by NIH. The common practice in academic publishing is for the author to assign copyright in the article or book to the publisher. Once an author no longer owns the copyright, the author can no longer control what use is made of the article. Before assigning copyright in an article, Stanford authors should be sure to understand what uses can be made article after the article is published. Consider if these options may make sense:

  • Rather than granting your copyright to a journal publisher, instead grant the publisher a license; see for a model license you might employ;
  • Publishing in open access journals; and
  • Assigning copyright to journal, with a license back from the journal to the author enabling the author to:
  • (1) post on an institutional website in a PDF format
    (2)  make derivative works
    (3)  make copies for educational purposes
    (4)  allow others to make copies for educational purposes
    (5)  same rights for Stanford/originating institution

For more information and resources, see:
Scholarly Communication and Publishing Issues:
The Author’s Rights Addendum:
Create Change:

Publishing Information for research supported by NIH. In 2008 the National Institutes of Health implemented a Public Access Policy, which requires that a digital copy of all research publications supported by NIH funding be submitted to PubMed Central, an online public repository, within 12 months of the original publication.  More information about the NIH policy can be found on the NIH’s website at Stanford's Lane Medical Library also offers a "nutshell" summary of requirements:

The School of Education Open Access Initiative.  In June 2008, the School of Education faculty passed an Open Access Initiative in which faculty members from the school are asked to add an addendum to publishing contracts enabling the author to attach a Creative Commons Attribution-Noncommercial License to all publications so that they can be placed in a Stanford repository.  Faculty members may seek a waiver of this policy from the Dean’s office.  For more information, see

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Stanford's Copyright Ownership Policy. The University's copyright policy establishes that all rights in copyright, regardless of their form of expression, remain with the creator, except in specified cases where law or University policy require otherwise.  For more information, please refer to the policy at

Stanford's Fair Use Resources. Further guidelines and useful material are located at

Guidelines for Classroom Copying. These guidelines were prepared by the Authors League of America and the Association of American Publishers.

Guidelines for Educational Materials. These guidelines were prepared by the Consortium of College and University Multimedia Centers.

Further Assistance. Please contact Lauren Schoenthaler in the Office of the General Counsel at

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Last modified: November 16, 2010

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