The Advising System

Bard College Copyright and Fair Use Policy
Bard College is a liberal arts institution fully committed to the intellectual and creative endeavors of its faculty, staff, and students. As part of this commitment, Bard College recognizes the importance of balancing the use of copyrighted works for educational purposes with the need to protect such works in accordance with the applicable provisions of the law. This Copyright and Fair Use Policy (the “Policy”) is intended to provide instruction regarding the use of copyrighted works at Bard College.

The copyright law of the United States is contained in Title 17 of the United States Code and serves the purpose of promoting “the Progress of Science and useful Arts, by securing for limited Times to Authors and Investors the exclusive Right to their respective Writings and Discoveries,” a mandate imposed on Congress by the United States Constitution. The Copyright Act of 1976, confers upon authors of copyrighted works the exclusive rights to do and authorize any of the following:

1. To reproduce the copyrighted work;
2. To prepare derivative works based on the copyrighted work;
3. To distribute copies of the copyrighted work to the public by sale or other transfer of ownership;
4. To perform the copyrighted work publicly; and
5. To display copyrighted work publicly.

Copyright protection is conferred as soon as an “original work of authorship is fixed in a tangible medium of expression.” This means copyright protections apply as soon as the work can be shown to others, through visual (written) or audio means. However, many copyright owners also choose to register their works with the United States Copyright Office, which confers a number of protections, as well as the ability to sue for copyright infringement.

1. Applicability of this Policy

This policy applies to all full-time and part-time faculty, visiting faculty, staff, students, student employees, graduate students, as well as any individual using college resources and facilities (the “Bard College Community”). All members of the Bard College Community must comply with applicable copyright laws and obtain proper permissions from copyright owners as required.

2. Overview of Copyright Protection

Copyright protection is conferred automatically to expressive or creative works. Works subject to copyright protection include literary works, musical works (including accompanying words), dramatic works (including accompanying music), pictorial/graphic/sculptural works, choreography, motion pictures and other audio-visual works, sound recordings, architectural works, computer programs, and compilations and derivative works.
However, the following are examples of things not protected by copyright:

1. Ideas, procedures, principles, methods, systems, discoveries, and devices;
2. Titles, names, short phrases, slogans;
3. Works that are “unfixed,” that is, not fixed in a tangible form of expression (for example, improvisational speeches or performances that have not been written or recorded);
4. Information that is common property with no original authorship (calendars, height and weight charts, rulers).

See Works Not Protected by Copyright, https://www.copyright.gov/circs/circ33.pdf (last accessed August 7, 2024).

3. Fair Use

Use of a copyrighted work by anyone other than the owner generally requires the explicit permission of that copyright owner. This should be in the form of a license agreement, or some other form of written agreement. However, permission is not required if the use falls within the Fair Use Doctrine, which provides a defense to copyright infringement.

Whether use of a copyrighted work constitutes “fair use” is determined by the specific facts of such use. There are four factors that must be considered when analyzing whether the use of a work is permissible under the Fair Use Doctrine. No single factor is determinative, but rather, the factors must be considered together:

1. The purpose and character of the use. For example, whether the use is commercial (weighing against a finding of fair use) or educational (weighing in favor of a finding of fair use).
2. The nature of the copyrighted work being used. For example, whether the work being used is of a highly creative nature (weighing against a finding of fair use).
3. The amount or substantiality of the portion of the work being used. For example, whether the entire copyrighted work being used (weighing against a finding of fair use) or just a small excerpt (weighing in favor of a finding of fair use).
4. The effect of the use on the market for, or value of, the work. For example, whether the use of the work being examined as part of the fair use analysis would have an impact on the sales of that work (weighing against a finding of fair use).

These factors must be balanced and weighed together when making an assessment of whether a use would fall under the Fair Use Doctrine. It is important to note that, while using copyrighted works for an educational purpose generally weighs in favor of a fair use finding, because all four factors must be considered, it is possible that a use is not permissible even in an educational setting.

All members of the Bard College Community must make a good faith effort to understand the basis of the Fair Use Doctrine and to take reasonable efforts to assess whether Fair Use applies to their anticipated use of a copyrighted work.

The Bard College Fair Use Checklist, attached as Appendix A, should be completed as a guide by members of the Bard College Community when making such a fair use analysis.

4. Display/Performance of Films, Television Shows and Music in the Classroom and on Social Media

1. Films and Television Shows

Under the Fair Use Doctrine, a legally purchased full-length movie may generally be shown in an in-person classroom setting for educational purposes. However, full-length movies
cannot be shown in the classroom if the copy being shown has been “ripped” from a source such as a DVD, even if the source was legally purchased. “Ripping” even legally purchased digital copies of films is a violation of the Digital Millenium Copyright Act (“DMCA”).

Copyrighted movies or television shows may not be shown outside of the classroom or for non-educational purposes without having obtained permission from the copyright owner. Please be advised that the terms of many streaming services, such as Netflix and Hulu, generally prohibit the showing of content in the classroom, subject to very limited exceptions.

Student clubs and groups that wish to show a film or television program must obtain permission from the copyright owner.

2. Music

Music is also protected by copyright law, and services such as Apple Music and Spotify should not be used to promote events. Any member of the Bard College Community that wishes to play or perform music at any college sponsored event must obtain permission from the copyright owner.  

There may be songs available to you for use under the College’s agreement with ASCAP. Please contact Frank Corliss, Director, Bard College Conservatory of Music, at [email protected] for more information.

3. Social Media

Copyrighted music or any other content protected by copyright should not be included in any social media postings. Permission from the copyright owner should be obtained prior to using copyrighted content in any such posting.

Individuals permitted to post to Bard College owned and affiliated social media accounts should also not share or repost any postings that contain potentially copyrighted content.

5. The TEACH Act and Online Learning

The 2002 Technology, Education and Copyright Harmonization Act (the “TEACH Act”) addresses the use of copyrighted material in the virtual classroom setting.

In an online classroom setting, the TEACH Act permits:

1. The performance of nondramatic literary works or nondramatic musical works in their entirety (i.e., reading of books and poetry).
2. The showing of limited and reasonable portions of other works (i.e., clips of a movie).

However, under the TEACH Act, faculty teaching an online course are prohibited from performing or showing an entire dramatic literary or musical work (play, opera, musical, television show, movie, etc.).

Moreover, any content used in the online classroom setting must:

1. Be legally obtained;
2. Be limited in access to the instructor and students enrolled in the course;
3. Be displayed under the supervision of the course instructor as a regular aspect of instruction;
4. Be accompanied by a notice that the materials are under copyright protection and may not be distributed; and
5. Reasonable controls must be used to prevent dissemination and retention (i.e., streaming rather than allowing the download of a video).

      6. Copyright Exceptions for Persons with Disabilities

Section 121 of the Copyright Act (the Chafee Amendment) permits certain authorized entities (nonprofit organizations or governmental agencies that have a primary mission of providing specialized services relating to training, education, or adaptive reading or information access needs of blind or other persons with disabilities) to reproduce and distribute published literary or musical works in accessible formats for use exclusively by print-disabled persons. While there have been questions about whether colleges qualify as authorized entities, educational institutions argue they qualify due to their obligations under the Americans with Disabilities Act (ADA).

The Chafee Amendment does not apply to other types of accommodations (such as those to accommodate deaf persons) and thus, for all other instances of reproducing and distributing copyrighted materials for accessibility purposes (including the addition of captioning), the principles of “fair use” must be considered.

7. Obtaining Copyright Permission

All members of the Bard College Community are responsible for obtaining copyright permission when necessary. Circumstances that may require copyright permission include, but are not limited to the following: use of materials or digital media in an in-person classroom setting, online (remote) learning, for posting on any Bard College or course website, research, for use in on-campus club activities, or for any Bard College-affiliated social media account. If you need assistance locating the proper individual(s) or entities to contact for such permissions, please contact the Dean of Libraries. It is recommended that permission be sought as soon as the determination to use a copyrighted work is made, as such permission may take time to obtain.

8. Enforcement of this Policy

Members of the Bard College Community who do not comply with this Policy or the applicable copyright laws or fail to act in good faith when making Fair Use determinations are liable for their own actions. Failure to comply with this Policy may result in disciplinary action.

9. Interpreting and Implementing Authority

The Office of the Dean of Libraries and the Office of the Dean of the College will be jointly responsible for the interpretation and implementation of this Policy.

Appendix A
FAIR USE CHECKLIST

Name:
Project/Class:
Date:
Prepared by:

INTRODUCTION TO THE CHECKLIST
The Fair Use Checklist and variations on it have been widely used for many years to help educators, librarians, lawyers, and many other users of copyrighted works determine whether their activities are within the limits of fair use under U.S. copyright law (Section 107 of the U.S. Copyright Act). The four factors form the structure of this checklist.  Congress and courts have offered some insight into the specific meaning of the factors, and those interpretations are reflected in the details of this form.
BENEFITS OF USING THE CHECKLIST
A proper use of this checklist should serve two purposes.  First, it should help you to focus on factual circumstances that are important in your evaluation of fair use.  The meaning and scope of fair use depends on the particular facts of a given situation, and changing one or more facts may alter the analysis.  Second, the checklist can provide an important mechanism to document your decision-making process.  Maintaining a record of your fair use analysis can be critical for establishing good faith; consider adding to the checklist the current date and notes about your project.  Keep completed checklists on file for future reference.
THE CHECKLIST AS A ROAD MAP
As you use the checklist and apply it to your situations, you are likely to check more than one box in each column and even check boxes across columns.  Some checked boxes will favor fair use and others may oppose fair use.  A key issue is whether you are acting reasonably in checking any given box, with the ultimate question being whether the cumulative weight of the factors favors or turns you away from fair use.  This is not an exercise in simply checking and counting boxes.  Instead, you need to consider the relative persuasive strength of the circumstances and if the overall conditions lean most convincingly for or against fair use.  Because you are most familiar with your project, you are probably best positioned to evaluate the facts and make the decision.
CAVEAT
This checklist is provided as a tool to assist you when undertaking a fair use analysis.  The four factors listed in the Copyright Statute are only guidelines for making a determination as to whether a use is fair.  Each factor should be given careful consideration in analyzing any specific use.  There is no magic formula; an arithmetic approach to the application of the four factors should not be used.  Depending on the specific facts of a case, it is possible that even if three of the factors would tend to favor a fair use finding, the fourth factor may be the most important one in that particular case, leading to a conclusion that the use may not be considered fair.
PURPOSE

Favoring Fair Use	Opposing Fair Use
The use is for the purpose of teaching in a non-profit educational institution (including multiple classroom copies). Criticism, comment, news reporting, or parody or transforms the presentation or use. The use is necessary to achieve an intended educational purpose. Access restricted to students enrolled in course.	The use is for commercial purposes. The use is non-transformative, verbatim/exact copy without criticism, comment, news reporting, or parody or transformation of presentation or use. The use is not necessary to achieve an intended educational purpose. Distribution is not limited or controlled.

NATURE

Favoring Fair Use	Opposing Fair Use
The work is published. The work is non-fictional or factual in nature and the author’s voice does not dominate the work. The work is a “non-consumable” (published book or similar). Essential for learning objectives.	The work is unpublished. The work is non-fictional in nature, and the author’s voice dominates the work. The work is a consumable work (workbook or test). The work is a highly creative work (art, music, novels, films, plays).

AMOUNT

Favoring Fair Use	Opposing Fair Use
A small amount of the work is used (e.g., a single article, a chapter, or other excerpt less than 10% of the work taking into consideration the nature of the total work). Portion used is not central to entire work as a whole. Amount is appropriate to education purpose.	Large portion or entire work. Portion used is central or the “heart” of the work. Includes more than necessary for education purposes.

EFFECT ON THE MARKET

Favoring Fair Use	Opposing Fair Use
User owns lawfully purchased or acquired copy of original work. One or few copies made/distributed. No significant effect on the market or potential market for copyrighted work. No similar product marketed by the copyright holder. Lack of licensing mechanism.	Could replace sale of copyrighted work. Numerous copies made. Significantly impairs market or potential market for copyrighted work or derivative. Reasonably available and affordable licensing/permission mechanism available. It was made accessible via the Web or other public forum. Repeated or long-term use.

The Checklist and the preceding introduction are licensed by a Creative Commons Attribution License with attribution to the original creators of the checklist Kenneth D. Crews (formerly of Columbia University) and Dwayne K. Buttler (University of Louisville). Creative Commons License.

Appendix B
Copyright Notification and Potential Penalties for Infringement

The Higher Education Opportunity Act (HEOA) requires Bard College to make an annual disclosure informing students that the illegal distribution of copyrighted materials may lead to civil and/or criminal penalties.

Bard College strictly prohibits the unauthorized distribution of copyrighted material. This includes illegal downloading and peer-to-peer file sharing. The Bard College Student Handbook and the Bard College Computing Policies prohibit students from using Bard College computing resources to act in violation of applicable copyright laws. Violations include:

• Using peer-to-peer applications that violate copyright laws; and
• Making unauthorized copies of copyrighted files or software or violating any software licensing agreements or copyright laws.

Any violation of these policies may result in disciplinary action and/or the loss of the ability to use Bard College computing and technology resources. Violations may also result in employee disciplinary action and potentially the discharge of employment. Additionally, individuals who violate these policies may face criminal and civil liabilities, from Bard College, individuals or entities whose rights are infringed and/or harmed, and/or law enforcement officials or agencies.

Civil Penalties for Violation of Federal Copyright Laws

Copyright infringement occurs when a work protected by copyright is used in violation of the owner’s exclusive rights under Section 106 of the Copyright Act (Title 17 of the United States Code). These include the unauthorized distribution and copying of a copyrighted work or downloading or uploading substantial parts of a copyrighted work without permission.

Copyright infringement may result in civil and criminal penalties. These include actual damages or statutory damages in an amount not less than $750 and not more than $30,000 per work infringed. If infringement is found to be “willful”, the award may be up to $150,000 per work infringed. An infringer may also be ordered to pay costs and attorneys’ fees at a court’s discretion. See Title 17, United States Code Sections 504 and 505 for further details.

Criminal penalties can be imposed in an amount of up to $250,000 per offense, and imprisonment of up to five years.
 

During the two Matriculation Days that precede the start of fall term, first-year and transfer students meet with preliminary faculty advisers for group advising sessions, program information sessions, and for individual advising appointments. The faculty who serve as preliminary advisers also represent their programs during course registration on the second Matriculation Day. 

First-year and transfer students are assigned preliminary faculty advisers on the basis of expressed academic interests and intended program of study. The registrar, with input from program chairs, makes the initial advising assignments. 

Students can, at any point during their study at Bard, change advisers. They do this by completing a Change of Adviser form, available in the Registrar’s Office. This form requires the signature of the new faculty adviser. If you need assistance choosing a new adviser, contact faculty in your program or your dean in the Center for Student Life and Advising at x7454. 

For a list of Moderation and graduation requirements for each program and concentration, see the Guide to Academic Programs and Concentrations.

For additional advice on selecting a major and how to connect your program of study to a future career, contact the Career Development Office.

Students are advised to read the the "Learning at Bard" section of the Student Handbook, which includes discussion of Plagiarism and Academic Dishonesty, Academic Requirements and Regulations. 

Further Reading and Resources:

Find the Senior Project guide and additional information about Senior year here. Thinking about life after Bard? Check out Bard Works. 

Senior Project
All students at Bard are required to complete a Senior Project. The Senior Project is an original, individual, focused project growing out of the student's cumulative academic experiences. One course each semester of the student's final year is devoted to completing the Senior Project. In order to begin Senior Project, a student must have completed 96 credits, and must be moderated in the program. The Senior Project must be completed in two consecutive semesters.

Preparation
Preparation for the Senior Project begins in the junior year. Students consult with advisers, and pursue course work, tutorials, and seminars directed toward selecting a topic, choosing a form of the project, and becoming competent in the analytical and research methods required by the topic and form. Students in some programs design a Major Conference during their junior year, which may take the form of a seminar, tutorial, studio work, or field of laboratory work. By the end of the junior year, students should finalize the selection of the Senior Project adviser and two other faculty members who will serve on the Senior Project review board.  

Senior Project Completion
At the end of the senior year, four copies of the project must be submitted to the Office of the Dean of the College by 5 pm on the due date. The student is then responsible for distributing three of the copies to the board members. The fourth copy of the Project is filed in the Library's archives. Arts division students who are doing an installation or performance should submit a 1-page Senior Project abstract on the due date.  

Permission to submit a Project later than the due date must be secured from the Faculty Executive Committee not later than one week prior to the due date, and must include the written support of the adviser and an explanation of the reasons for the request. Late submission of the Project without permission will result in a lowering of the grade.

Students receiving the grade of F and desiring to graduate from Bard will have to undertake an entirely new project. The due date for the submission of the new project will be no later than two years after the original due date of the first Project.

Moderation is the process by which all students must transition from the Lower College to the Upper College and establish their major in a program. Moderation is a crucial point in the individual student's career at Bard in which, with the help of a board of three faculty members, the student assesses his or her record and plans a future course of study.

Time of Moderation
The Moderation ordinarily takes place in the second semester of the sophomore year. Transfer students entering with the equivalent of two full years of credit should, if possible, moderate during the first semester of residence, but in no case later than the second. In order to postpone Moderation one semester, a student must obtain the written approval of his or her adviser. Postponing Moderation a second semester requires approval of the Faculty Executive Committee. For double majors, the second Moderation may occur in the second semester of the sophomore year or in either semester of the junior year. Students must be moderated before they can start a Senior Project.

Procedure
All students must prepare two short papers for Moderation, the first assessing their curriculum, performance, and experience in the first two years, and the second identifying their goals and proposed study plan for the final two years. All students also submit a sample of work they have done in the program: for example, a long paper written for a course qualifies as a sample.

Students consult with their adviser to determine the process for scheduling the Moderation board and to find out about any special papers or other material that needs to be submitted along with the two short papers. Students must prepare four copies of the required papers and materials to be submitted to the Office of the Registrar and the three board members by the Moderation deadline.

Moderation Board Decisions
Promotion admits the student to the Upper College. The board's report shall include an evaluation of the student's work and of performance during the Moderation, recommendations for the student's future program, and the anticipated date of graduation.

Deferral of promotion detains the student for a further semester in the Lower College in that, in the board's opinion, he or she has not yet clearly demonstrated grounds for promotion, but may be able to do so by the end of next semester. Deferred students attempt to re-moderate the following semester with, as far as possible, the same board in the same program. Only promotion or refusal is possible.

In rare instances, the board may decide not to moderate the student into the program. In such cases, the board will work closely with the student and the Dean of Studies Office to help the student find an alternative course of study that will enable them to enter the Upper College in a timely fashion.