Copyright and Fair Usefor Educators

LaCUE Regional Conference

Nan B. Adams, PhDSoutheastern Louisiana University

What is Copyright?

A copyright is a property right attached to an original work of art or literature. It grants the author or creator exclusive rights to reproduce, distribute, adapt, perform, or display the protected work.

What does Copyright do?

Wrongful use of the material gives the copyright owner the right to seek and recover compensation in a court of law.  A copyright gives the author or owner the right of control over all forms of reproduction, including photocopies, slides, recordings on cassettes and videotapes, compact disks, and other digital formats.

How Copyright is Assigned

Individuals once had to apply for copyright protection.  However, works created since 1978 assume protection from the moment the work takes tangible form--whether or not a copyright notice is attached and whether or not the individual has filed an application with the U.S. Copyright Office.  For works created and published before 1978, copyright lasts 75 years from the time of publication or copyright renewal.  

Copyright laws do not extend to facts

and ideas

While the protection does cover the particular, distinctive words a writer uses to present ideas or facts, control over the underlying concepts or truths cannot be owned. Thus, a biography about a U.S. President qualifies for copyright, but the events and facts of his life do not.

What works Qualify?

To qualify for copyright protection, the work must be (a) original, (b) creative to a minimal degree, and (c) in a fixed or tangible form of expression.

Copyright law covers seven broad categories

literary works - both fiction and nonfiction, including books, periodicals, manuscripts, computer programs, manuals, phonorecords, film, audiotapes, and computer disks

musical works -- and accompanying words -- songs, operas, and musical plays

dramatic works -- including music - plays and dramatic readings

pantomimed and choreographed workspictorial, graphics, and sculptural works -- final and applied

arts, photographs, prints and art reproductions, maps, globes, charts, technical drawings, diagrams, and models

motion pictures and audiovisual works - slide/tape, multimedia presentations, filmstrips, films, and videos

sound recordings and records - tapes, cassettes, and computer disks

A copyrighted work may be used or copied under certain conditions:

public domain -- work belonging to the public as a whole--government documents and works, works with an expired copyright or no existing protection, and works published over 75 years ago;

permission -- prior approval for the proposed use by the copyright owner;

legal exception -- use constitutes an exemption to copyright protection--parody, for example; or

fair use -- use for educational purposes according to certain restrictions. 

Fair Use and Teachers

Fair Use

Fair use explicitly allows use of copyrighted materials for educational purposes such as criticism, comment, news reporting, teaching, scholarship, and research. Rather than listing exact limits of fair use, copyright law provides four standards for determination of the fair use exemption:

Standard 1

Purpose of use: Copying and using selected parts of copyrighted works for specific educational purposes qualifies as fair use, especially if the copies are made spontaneously, are used temporarily, and are not part of an anthology.

Standard 2

Nature of the work: For copying paragraphs from a copyrighted source, fair use easily applies. For copying a chapter, fair use may be questionable.

Standard 3

Proportion/extent of the material used: Duplicating excerpts that are short in relation to the entire copyrighted work or segments that do not reflect the "essence" of the work is usually considered fair use.

Standard 4

The effect on marketability: If there will be no reduction in sales because of copying or distribution, the fair use exemption is likely to apply. This is the most important of the four tests for fair use

All 4 Standards must apply

None of these factors alone constitutes fair use. Even though materials may be copied for educational purposes, the other standards must be met.

Questions and Restrictions for Fair Use

Will the expression by the author/creator be used?

Will the particular way words are sequenced or a concept is expressed be used? If the answer is without a doubt "no," then the work may be used.

Keep in mind, however, that duplicating or photocopying someone else's work is the same as using the author's expression.

If the answer to this question is "yes" or "maybe," the next question must be considered.

Is the expression/rendering protected by copyright? 

If the answer is "no," then the work may be used.

For example, a work might be old enough to be part of the public domain or perhaps unprotected for another reason.  If the answer is "yes" or "maybe," the third question must be considered.

Will the use go beyond the fair use?

If the application falls within one of the exceptions listed for fair use, then the material or work may be used.

However, certain limitations still apply.

If the answer to these all the previous questions is "yes," then permission from the author is needed.

If the answer to any of these questions is "no," the fair use provision might apply.

Other Restrictionson Fair Use for Educators

Brevity

Numerical limits apply stipulating what extent or percentage of the whole work may be copied.

Spontaneity

The idea to use the materials may not be preconceived or preplanned. Administrators are prohibited from instigating fair use exemption for specific copyright material for classroom purposes. The times between the decision to use the material and the occasion to use it in the classroom must be so close together that a timely request for permission from the author could not be made.

Cumulative Effect

The copying must not have a negative cumulative effect on the market of the copyrighted work. The copying must be for (a) only one course in the school where copies are made, (b) not more than one short poem, article, story, essay or two parts from longer works copied from the same author; nor more than three from the same anthology or collection or periodical volume during the one class term.

Copyright Notice

Along with attribution, this must be included on all copies.

No Photocopy Profit

Students may not be charged more than the actual cost of making the copies

Video Copied From TV

These rules apply to the 3 commercial networks and public broadcasting. Cable, satellite and distance learning operate by different rules set up by the copyright owners.

A good source on rights to copy cable shows is the magazine, Cable in the Classroom.

There are 9 basic guidelines that you need to consider when videotaping:

1. Taped shows can not be kept for more than 45 after the recording date.

2. Videotaped shows can only be shown within the first 10 days of that 45 day period.

3. Off-air recordings can only be made through a teacher request, not by someone in anticipation of a need.

4. The taped shows can only be shown 2 times within any single class, with the second time being only for reinforcement.

5. After the 10 days the tapes can only be reviewed by the teacher for possible purchase and inclusion into the curriculum.

6. If several teachers ask for the same program, duplicate copies can be made to fill the requests. These copies are subject to the same restrictions listed above.

7. The tapes are not to be altered in any way, though you don't have to show a tape in its entirety.

8. All copies must include the copyright notice as recorded on the broadcast program.

9. These guidelines apply only to nonprofit education institutions, which are expected to establish control procedures to make sure these guidelines are met.

Classroom use of a copyrighted video is permissible only when all of the following conditions are met:

The performance must be by instructors or by pupils. The performance is in connection with face-to-face teaching

activities. The entire audience is involved in the teaching activity. The entire audience is in the same room or same general area. The teaching activities are conducted by a non-profit education

institution. The performance takes place in a classroom or similar place

devoted to instruction. The person responsible for the performance has no reason to

believe that the videotape was unlawfully made.

Fair Use Chart for Teachers

Handout

Much of this information was gathered from the website:

A Teacher's Guide to Fair Use and Copyright

Modeling Honesty and Resourcefulnessby Cathy Newsome

http://home.earthlink.net/~cnew/research.htm

So, What is all of this about Downloading and

Sharing Music Files?

Can I really get sued?

Y E S

How Napster & Kazaa Work:

Kazaa and Napster use peer-to-peer technology. This means that individual users connect to each other directly, without need for a central point of management.

To participate in the “share” users often have to contribute songs to be shared. Those who are sharing files usually don’t own the copyright to the songs they share…

They are illegally reproducing copies of songs.

The twist is that these songs are available on the web for anyone to download, so those folks who are sharing files illegally are easy to identify…

Which makes them easy targets for legal action.

While some argue to moral right of copyright owners to sue, Copyright law insures their ability to seek legal remedy for illegal reproduction of their copyrighted work.

Do YOU know if your children are sharing music files on your home computer OR your school computer?

YOU are the person who will be held legally liable if they are caught.

Be Aware

The claim that “I didn’t know….” is NOT a legal defense.

Copyright is Serious Business