copyright

Copyright and EducationCopyright and Education

Lorraine LeSageLorraine LeSage

Summer 2009Summer 2009

Delicate BalanceDelicate Balance

Educational Use

Advancement of

civilization.

First Amendment

rights.

Copyright holder’s right to earn a

living and maintain

their rights of

ownership.

Copyright LawCopyright Law

Latest complete LawLatest complete Law Title 17 Public LawTitle 17 Public Law

Amendments to the Copyright Amendments to the Copyright LawLaw

Digital Millennium Copyright ActDigital Millennium Copyright Act (DMCA) (DMCA) TEACH TEACH (Technology, And Copyright Harmonization Act)(Technology, And Copyright Harmonization Act)

Copyright Holder’s Six RightsCopyright Holder’s Six Rights

1.1. ReproductionReproduction

2.2. AdaptationAdaptation

3.3. DistributionDistribution

4.4. Public PerformancePublic Performance

5.5. Public DisplayPublic Display

6.6. Digital Transmission of sound Digital Transmission of sound recordings.recordings.


ReproductionReproduction

The right to reproduce the work. The right to reproduce the work.

Copies that are not exact still apply, Copies that are not exact still apply, example: A hand drawn illustration example: A hand drawn illustration of SpongeBob Square Pants.of SpongeBob Square Pants.


AdaptationAdaptation

Changing the original work in some way. Changing the original work in some way.

JK Rowlings earns a great deal of money JK Rowlings earns a great deal of money whenwhen

her books are adapted into screenplays her books are adapted into screenplays andand

turned into movies.turned into movies.


DistributionDistribution

Only the copyright holder has the right Only the copyright holder has the right to copy and then distribute their work. to copy and then distribute their work.

The right of first sale allows the The right of first sale allows the consumer to do what they wish with the consumer to do what they wish with the one copy that they purchased. Without one copy that they purchased. Without this provision a library couldn’t loan a this provision a library couldn’t loan a book.book.


Public PerformancePublic Performance

Only the copyright holder has the Only the copyright holder has the right to publicly perform their work. right to publicly perform their work.

A public performance includes; film, A public performance includes; film, music, dance, theater, etc… music, dance, theater, etc… (Simpson, 2005) (Simpson, 2005)

What constitutes a public What constitutes a public performance?performance?

““The law defines a public performance The law defines a public performance as: to perform or display it at a place as: to perform or display it at a place open to the public or at any place open to the public or at any place where a substantial number of where a substantial number of persons outside a normal circle of a persons outside a normal circle of a family and its social acquaintances is family and its social acquaintances is gathered.” (Simpson, 2005, p19)gathered.” (Simpson, 2005, p19)


Public DisplayPublic Display

Display of artwork in any place outside of Display of artwork in any place outside of thethe

home. home.

Could apply to pictures, photography, sculpture, Could apply to pictures, photography, sculpture, oror

even literature if it were to be displayed on theeven literature if it were to be displayed on the

Internet.Internet.


Digital Transmission of sound recordings. Digital Transmission of sound recordings.

Latest copyright holder’s right came to be Latest copyright holder’s right came to be asas

a result of the Digital Millennium Copyright a result of the Digital Millennium Copyright

Act.Act.Internet radio stations must now pay Internet radio stations must now pay

expensive royalties to record companies. expensive royalties to record companies.

Duration of CopyrightDuration of Copyright

Length of life of copyright holder plus 70 Length of life of copyright holder plus 70 years. (extended to 70 from 50 in 1998)years. (extended to 70 from 50 in 1998)

Works published before 1923 are in the Works published before 1923 are in the public domain. public domain.

Works published between 1923-1978 have Works published between 1923-1978 have varying periods of copyright. The time of varying periods of copyright. The time of creation depends on length of copyright creation depends on length of copyright protection.protection. Flow Chart to help determine when copyright eFlow Chart to help determine when copyright e

xpiresxpires

Copyright Copyright After January 1, 1978 the work was After January 1, 1978 the work was

automatically protected by copyright the automatically protected by copyright the moment it was created and physically moment it was created and physically recorded, written, painted, etc… recorded, written, painted, etc…

After 1989 works no longer needed the After 1989 works no longer needed the copyright symbol,copyright symbol,©,©, and the author no and the author no longer needed to register the work with longer needed to register the work with the US copyright office in order to be the US copyright office in order to be eligible for protection.eligible for protection.

Public DomainPublic Domain

What is the Public Domain?What is the Public Domain?work not protected by copyright.work not protected by copyright.

How does a work enter the public How does a work enter the public domain?domain? Work may not have been eligible for Work may not have been eligible for

copyright protection.copyright protection. Creative CommonsCreative Commons

Authors may elect to dedicate their work to the Authors may elect to dedicate their work to the public domain, Creative Commons is the method public domain, Creative Commons is the method used to do this. (used to do this. (www.creativecommons.orgwww.creativecommons.org))

What Can’t be Protected by What Can’t be Protected by CopyrightCopyright

Factual Information Factual Information ex. Phone book ex. Phone book datadata

IdeasIdeas Creative works made by non-Creative works made by non-

humans, humans, ex. Art work created by a ex. Art work created by a monkey or an elephant.monkey or an elephant.

Works created by US Federal Works created by US Federal government employees during the government employees during the course of their duties. course of their duties.

Creative CommonsCreative Commons

Created in Created in response to Digital response to Digital Millennium Millennium Copyright Act Copyright Act (DMCA)(DMCA)

Creative Commons Creative Commons VideoVideoCreativecommons.orgCreativecommons.org

Fair UseFair Use

What is it?What is it?

Fair use is not a right. It is a Fair use is not a right. It is a defense used in court when an defense used in court when an

individual has been charged individual has been charged with infringing copyright laws. with infringing copyright laws.

(Simpson, 2005)(Simpson, 2005)

Fair UseFair Use

Will that make you sleep better at Will that make you sleep better at night?night?

Fair UseFair Use

Without fair use human knowledge Without fair use human knowledge would not advance. It is necessary to would not advance. It is necessary to balance the copyright holder’s rights balance the copyright holder’s rights with the rights of humankind to use with the rights of humankind to use and build upon the discoveries of and build upon the discoveries of

others.others.

Fair UseFair Use

Accepting that fair use is necessary Accepting that fair use is necessary for the benefit of the world. Let’s for the benefit of the world. Let’s

take a look at the fair use guidelines take a look at the fair use guidelines so we are protecting both the so we are protecting both the

copyright holders rights as well as copyright holders rights as well as protecting ourselves. protecting ourselves.

Fair UseFair UseThe fair use guidelines as they appear in sectionThe fair use guidelines as they appear in section107 of the federal law are listed below.107 of the federal law are listed below.

““Section 107 contains a list of the various purposes for Section 107 contains a list of the various purposes for which the reproduction of a particular work may be which the reproduction of a particular work may be considered fair, such as criticism, comment, news considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in 107 also sets out four factors to be considered in determining whether or not a particular use is fair: determining whether or not a particular use is fair:

The purpose and character of the use, including whether such The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational use is of commercial nature or is for nonprofit educational purposes purposes

The nature of the copyrighted work The nature of the copyrighted work The amount and substantiality of the portion used in relation The amount and substantiality of the portion used in relation

to the copyrighted work as a whole to the copyrighted work as a whole The effect of the use upon the potential market for, or value The effect of the use upon the potential market for, or value

of, the copyrighted work” (17 USC, of, the copyrighted work” (17 USC, http://www.copyright.gov/fls/fl102.htmlhttp://www.copyright.gov/fls/fl102.html) )

What do I have do Teacher’s need What do I have do Teacher’s need to know?to know?

The four tests for fair use are difficult for laypeople The four tests for fair use are difficult for laypeople to understand. In order to help teachers betterto understand. In order to help teachers better

understand which uses constituted fair useunderstand which uses constituted fair usecongress came up with the fair use guidelines. Onecongress came up with the fair use guidelines. One

can use either the guidelines or the fourcan use either the guidelines or the fourtests as a defense of fair use. tests as a defense of fair use.

Fair use guidelines are easier to learn andFair use guidelines are easier to learn andadminister than applying the fair use test.administer than applying the fair use test.

(Simpson, 2005) (Simpson, 2005)

Print GuidelinesPrint Guidelines

Teachers may copy, for the purpose of research, Teachers may copy, for the purpose of research, teaching, or preparation for teaching:teaching, or preparation for teaching:

A single chapter from a book.A single chapter from a book. A single copy of an article.A single copy of an article. A single copy of a short story, short essay, or A single copy of a short story, short essay, or

short poem.short poem. A single copy of a chart, graph, diagram, A single copy of a chart, graph, diagram,

drawing, cartoon, or picture from a book, drawing, cartoon, or picture from a book, periodical, or newspaper. (Simpson, 2005, periodical, or newspaper. (Simpson, 2005, p54)p54)

Print Fair Use GuidelinesPrint Fair Use Guidelines

When are multiple copies permitted? When are multiple copies permitted? Multiple copies are permitted if three Multiple copies are permitted if three tests are met.tests are met.

1.1. Brevity- length of a work used.Brevity- length of a work used.

2.2. SpontaneitySpontaneity

3.3. Cumulative EffectCumulative Effect


BrevityBrevity

Poem up to 250 words in length.Poem up to 250 words in length. Prose: Article less than 2,500 words may be Prose: Article less than 2,500 words may be

copied in its entirety. Play or novel not more copied in its entirety. Play or novel not more than 1,000 words or 10% less.than 1,000 words or 10% less.

Picture book: only two pages provided this isn’t Picture book: only two pages provided this isn’t more than 10%.more than 10%.

Illustration: One chart, graph, drawing, cartoon, Illustration: One chart, graph, drawing, cartoon, diagram or picture.diagram or picture.

Hall Davidson Chart on Copyright and Fair Use Guidelines Hall Davidson Chart on Copyright and Fair Use Guidelines


SpontaneitySpontaneity

Must be teacher’s idea to use the work.Must be teacher’s idea to use the work. Planned use must be too close to use to Planned use must be too close to use to

get permission from copyright holder, less get permission from copyright holder, less than 2 weeks.than 2 weeks.


Cumulative EffectCumulative Effect

Law was created to ensure that fair use isn’t Law was created to ensure that fair use isn’t a substitute for purchasing materials. a substitute for purchasing materials.

Item may be copied for only one course.Item may be copied for only one course. Students may not be charged for copies Students may not be charged for copies

beyond the actual cost of photocopying.beyond the actual cost of photocopying. Consumables may not be copied. Consumables may not be copied.

Audio Visual Materials and Fair Audio Visual Materials and Fair UseUse

What is considered AV Materials? What is considered AV Materials?

VideoVideo FilmstripsFilmstrips Sound Recordings Sound Recordings Graphics and all other non print formats Graphics and all other non print formats

that are not multimedia. (Simpson, that are not multimedia. (Simpson, 2005)2005)


Rules included in section 110(1) of 17 Rules included in section 110(1) of 17 USC, current copyright law.USC, current copyright law.

This is law and not externally This is law and not externally developed guidelines as in the case of developed guidelines as in the case of print media.print media.

Can be broken down into five yes or no Can be broken down into five yes or no questions to help determine questions to help determine appropriateness of a fair use claim.appropriateness of a fair use claim.


1.1. Is it a nonprofit performance?Is it a nonprofit performance?

2.2. Does it take place in a classroom or similar Does it take place in a classroom or similar location?location?

3.3. Are only instructors and students present for the Are only instructors and students present for the viewing?viewing?

4.4. Is the copy being shown a legally acquired copy?Is the copy being shown a legally acquired copy?

5.5. Does the video fit as an integral part of an Does the video fit as an integral part of an immediate unit of study in a face to face immediate unit of study in a face to face academic setting? (Simpson, 2005)academic setting? (Simpson, 2005)

Ask these five questions to determine the likelihood of the fair use defense holding up in court. Can you answer

yes to all five questions?


If you couldn’t answer yes to all five questions youIf you couldn’t answer yes to all five questions youwould most likely not qualify for a fair use would most likely not qualify for a fair use defense.defense.

In a case such as this the copyright holder mustIn a case such as this the copyright holder mustgrant permission, or you must obtain performance grant permission, or you must obtain performance rights? Such rights can be obtained with the rights? Such rights can be obtained with the purchase of an umbrella license. Several vendors purchase of an umbrella license. Several vendors sell an umbrella license allowing publicsell an umbrella license allowing publicperformances of movies from certain producers.performances of movies from certain producers.

Music materials and Fair Use (print Music materials and Fair Use (print and recorded)and recorded)

There are no legal guidelines established for There are no legal guidelines established for educational uses of music however, in 1976 educational uses of music however, in 1976 several music groups got together to several music groups got together to establish the Guidelines for Educational Uses establish the Guidelines for Educational Uses of Music. This group consisted of educators of Music. This group consisted of educators and copyright holders. Following these and copyright holders. Following these guidelines are a “sensible fair practice.” guidelines are a “sensible fair practice.” (Simpson, 2005)(Simpson, 2005)


Print Materials Acceptable UsePrint Materials Acceptable Use Purchased copies haven’t arrived in time, Purchased copies haven’t arrived in time,

making emergency copies is permissible.making emergency copies is permissible. Classroom purposes, non performance, Classroom purposes, non performance,

portion of a work may be copied, not to portion of a work may be copied, not to exceed 10%.exceed 10%.

Schools owning sufficient copies of a piece Schools owning sufficient copies of a piece may edit or simplify the work provided it may edit or simplify the work provided it doesn’t change the character of the work.doesn’t change the character of the work.

(Simpson, 2005)(Simpson, 2005)


Recorded Music Acceptable UseRecorded Music Acceptable Use Single copy of a student performance Single copy of a student performance

may be made, but only for evaluation may be made, but only for evaluation or rehearsal.or rehearsal.

A single copy of a sound recording of A single copy of a sound recording of copyrighted music, which a legal copyrighted music, which a legal copy is owned, for the purpose of copy is owned, for the purpose of constructing aural examinations or constructing aural examinations or exercises. (Simpson, 2005)exercises. (Simpson, 2005)

Multimedia and Fair UseMultimedia and Fair UseMultimedia is a technology that emerged after the Multimedia is a technology that emerged after the latest revisions to the copyright latest revisions to the copyright law, however in 1996 a group of media producers, law, however in 1996 a group of media producers, publishers, and consumers established a set of publishers, and consumers established a set of guidelines on the use of multimedia in education. guidelines on the use of multimedia in education. CONFU (Conference on Fair Use)CONFU (Conference on Fair Use)

Examples of multimedia presentations include Examples of multimedia presentations include PowerPoint and Hyper studio.PowerPoint and Hyper studio.

Fair use guidelines for educational multimediaFair use guidelines for educational multimedia

CONFU GuidelinesCONFU Guidelines

Motion media- up to 10% or 3 minutes, Motion media- up to 10% or 3 minutes, whichever is less, of an individual whichever is less, of an individual program.program.

Text-Up to 10% or 1000 words of a Text-Up to 10% or 1000 words of a novel, story, play, or long poem. Poem novel, story, play, or long poem. Poem shorter than 250 words may be used shorter than 250 words may be used completely.completely.

Music, lyrics, and music videos- 10% or Music, lyrics, and music videos- 10% or 30 seconds. (CONFU Guidelines, 1996) 30 seconds. (CONFU Guidelines, 1996)

CONFU GuidelinesCONFU Guidelines Illustrations, cartoons, and photos- no more than 5 Illustrations, cartoons, and photos- no more than 5

images from a single artist. No more than 15 images images from a single artist. No more than 15 images or 10% of a single collection.or 10% of a single collection.

10% of numerical data sets or 2,500 fields.10% of numerical data sets or 2,500 fields.

Citing copyright protected work is required.Citing copyright protected work is required.

Teachers may only keep work with copyrighted Teachers may only keep work with copyrighted material a period of two years after its first use.material a period of two years after its first use.

Students may keep the work indefinitely.Students may keep the work indefinitely.

The opening screen of the multimedia presentation The opening screen of the multimedia presentation must contain a notice that the work contains must contain a notice that the work contains copyrighted material and is being used under the fair copyrighted material and is being used under the fair use exemption of the U.S. Copyright Law. (Simpson, use exemption of the U.S. Copyright Law. (Simpson, 2005)2005)

TEACH ACTTEACH ACT

The TEACH Act (Technology, The TEACH Act (Technology, Education and Copyright Education and Copyright harmonization Act) makes provisions harmonization Act) makes provisions for using copyrighted materials in for using copyrighted materials in distance learning situations.distance learning situations.

ALA information on TEACH ActALA information on TEACH Act

Copyright and Computer SoftwareCopyright and Computer Software

IssuesIssues Tempting and easy to make illegal copies.Tempting and easy to make illegal copies. Teachers/administrators rationalize their actions as Teachers/administrators rationalize their actions as

necessary.necessary. Software Publishers Association (SPA) estimates that for Software Publishers Association (SPA) estimates that for

every one legal copy purchased there are another 3-7 every one legal copy purchased there are another 3-7 illegal copies in distribution. (Marshall, 1993)illegal copies in distribution. (Marshall, 1993)

RisksRisks Piracy is punishable as a felony.Piracy is punishable as a felony. If one makes more than 10 illegal copies of software within If one makes more than 10 illegal copies of software within

180 day period, crime is punishable up to 2 years in jail and 180 day period, crime is punishable up to 2 years in jail and 25,000.25,000.

Make more than 50 copies and that fine goes up to 250,000 Make more than 50 copies and that fine goes up to 250,000 and up to 5 years jail time.and up to 5 years jail time.

Library ExemptionsLibrary Exemptions

If a page is damaged, a good copy of If a page is damaged, a good copy of the page can be made and inserted the page can be made and inserted into the book.into the book.

If a book is out of print, and a new If a book is out of print, and a new copy cannot be obtained at a copy cannot be obtained at a reasonable price, library may make reasonable price, library may make copies to repair or replace damaged copies to repair or replace damaged book. (Simpson, 2005)book. (Simpson, 2005)

ReferencesReferencesUnited States Copyright law. U.S. Copyright Office. (2008). Retrieved June 30, 2009

from http://www.copyright.gov/title17/

The Digital Millennium Copyright Act of 1998. U.S. Copyright Office Summary. (1998). Retrieved June 31, 2009 from http://www.copyright.gov/legislation/dmca.pdf

Lessick, S. (2003). University of California. Retrieved July 1, 2009, from http://www.universityofcalifornia.edu/copyright/teach.html

Simpson, C. (2005). Copyright for Schools. Worthington, OH: Linworth.

Bromberg & Sunstein LLP. (n.d.) Flowchart for Determining when U.S. Copyrights in Fixed Works Expire. Retrieved July 1, 2009, fromhttp://www.bromsun.com/practices/copyright-portfoliodevelopment/flowchart.htm

Creative Commons. http://creativecommons.org/about/

ReferencesReferencesThe Creative Commons Tech Team. Retrieved July 3, 2009, from

http://creativecommons.org/videos/a-shared-culture/

United States Copyright law. U.S. Copyright Office. (2008). Retrieved July 3, 2009,from http://www.copyright.gov/fls/fl102.html

Hall, D. (n.d.) Copyright and Fair Use Guidelines for Teachers. Retrieved July 3, 2009, from http://www.halldavidson.net/chartshort.html

Educational Multimedia Fair Use Guidelines Development committee. (2001). Retrieved June 30, 2009, from http://www.utsystem.edu/OGC/Intellectualproperty/ccmcguid.htm

ALA American Library Association. (n.d.) Distance Education and the Teach Act. Retrieved July 3, 2009, from http://www.ala.org/Template.cfm?Section=Distance_Education_and_the_TEACH_Act&Template=/ContentManagement/ContentDisplay.cfm&ContentID=25939#introduction

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