Fair Use and Copyright for Teachers

Introduction

The Congress shall have the Power... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries...

The United States Constitution
Article I, Section 8, Clauses 1 and 8

In 1787, writers of the U.S. Constitution recognized the need for growth in knowledge and science for a healthy and prosperous nation. By giving authors and inventors the right of control over their works in that document, they laid fertile ground for creative pursuits. Yet, knowing too many restrictions would stifle growth and learning, they also limited the degree of control individuals would have for such properties. (Fishman, 1997, p. 2/2). This balance between public and private interests has been a vital part of a strong, enduring nation, maintaining equilibrium between public access and private exploration of ideas through the generations.

Since the enactment of the first U.S. copyright law in 1790, several revisions have broadened the scope of the law. The 1976 Copyright Act expanded protection to include new forms resulting from advances in technology.

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EXAMPLES OF WORKS PROTECTED
BY
COPYRIGHT

advertisements
blank information form
catalogs/directories
collages/montages
compilations of information
diaries/ journals/letters
digitized images
fiction
instructions--fixed form
interviews
jokes--fixed form
leaflets/pamphlets
lectures/speeches
letters/e-mail
lithographs/serigraphs
music scores/song lyrics
newsletters
newspapers/magazines
nonfiction
paintings
photographs
plays/screenplays
poetry
prints
reference books
sculpture
song lyrics
speeches
technical writing
textbooks
Web graphics/pages

Copyright and Fair Use Defined

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. Other than someone to whom the author/creator has extended all or part of these rights, no one else may use, copy, or alter the work. 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.

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.

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 works
pictorial, 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 (Talab, 1986, p. 6).

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.

Through the fair use provision, teachers have access to works far beyond classrooms or textbooks and thereby may expand and enrich learning opportunities for student learning.

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Fair Use and Teachers

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:

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

None of these factors alone constitutes fair use. Even though materials may be copied for educational purposes, the other standards must be met. Unfortunately, these are not exactly crisp and clear guidelines. Nevertheless, ignorance of the law is no excuse. Teachers should consider the following:

In one case, a teacher was held liable for copying 11 out of 24 pages in an instructional book when it was used in subsequent semesters without permission from the copyright holder (Washington State University, 1997).

Penalties for copyright violation or infringement are harsh. Judgments can run up to $100,000 for each act of deliberate or willful infringement (University of Texas).

Many school districts and institutions have policies relating to reproduction of copyright materials. Disregard for established policies that reflect copyright law could mean that a teacher charged with copyright violation would receive no legal support from the employer-district.

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Challenges for Educators

Emerging technologies bring new challenges for today's teachers. The Internet and availability of computers and digitizing equipment provide ready access to great reservoirs of information and knowledge. Newer technologies also allow teachers to transfer, copy, and digitize learning materials faster and easier than ever. Digital images may travel great distances quickly, leaving no trail. Text and images can be copied instantly, then easily saved in computer files (Carter, 1996, p. 4).

It is no wonder that in this environment teachers often do not understand just how much leeway they have in using other people's work. The law may seem confusing, ambiguous, and unclear. At the same time, the massive amount of information and images greatly diminishes the likelihood of exposure if works are copied illegally. The issue of copyright law enforcement, meanwhile, receives little public attention. While education institutions have begun to protect themselves from liability, some teachers, either from a false sense of security or lack of awareness, engage in illegal use or retention of materials. (Chase).

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Fair Use and Professional Responsibility: Beyond the legal aspects of the copyright law lies an important issue -- Ethics. Educators, without regard to or knowledge of copyright restrictions, sometimes duplicate materials illegally or load software without license. Such copying, seemingly convenient and unnoticeable, is, in fact, stealing--taking someone's property without permission, thus depriving the author of income or control to which he/she is entitled.

Teachers have a moral obligation to practice integrity and trustworthiness. Just as they expect students to refrain from cheating on tests and from taking others' belongings at school, teachers should honor the law when it comes to fair use and copyright. Thus, teachers not only should protect themselves from legal liability but should also model honesty and truthfulness by knowing when and what may be copied for educational use.

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(Rutkowski, 1996)

Questions and Restrictions for Fair Use

Before using or copying materials for educational purposes, a teacher should consider three questions:

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 above 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. Still, there are certain restrictions.

Brevity: Numerical limits apply stipulating what extent or percentage of the whole work may be copied. (See chart below.)
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 (Fishman, 1997, p. 11/13-14).

Note: Mere attribution or citation does not diminish liability in cases of copyright infringement. In addition, ownership of a book, image, software program, or other work does not automatically confer copyright ownership. The right to copy, display, or otherwise use must be specifically granted.

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Fair Use Chart for Teachers

Work or Materials to be used for Educational Purposes	Fair Use Restrictions for Face-to-Face Teaching	Illegal Use without Explicit Permission from Creator/Author
Chapter in a book	Single copy for teacher for research, teaching, or class preparation. Multiple copies (one per student per class) okay if material is (a) adequately brief, (b) spontaneously copied, (c) in compliance with cumulative effect test. Copyright notice and attribution required.	Multiple copies used again and again without permission. Multiple copies to create anthology. Multiple copies to avoid purchase of textbook or consumable materials.
Newspaper/magazine article	Same as above. Multiple copies of complete work of less than 2,500 words and excerpts up to 1,000 words or 10% of work, whichever is less. For works of 2,500-4,999 words, 500 words may be copied.	Same as above
Prose, short story, short essay, Web article		Same as above
Poem	Same as for first item. Multiple copies allowed of complete poem up to 250 words -- no more than two printed pages. Multiple copies of up to 250 words from longer poems.	Same as above
Artwork or graphic image - chart, diagram, graph, drawing, cartoon, picture from periodical, newspaper, or book, Web page image	Same as for first item. No more than 5 images of an artist/photographer in one program or printing and not more than 10% or 15% of images from published collective work, whichever is less.	Same as first item Incorporation or alteration into another form or as embellishment, decoration for artistic purposes for other than temporary purposes.
Motion media - film and videotape productions	Single copy of up to 3 minutes or 10% of the whole, whichever is less. Spontaneity required.	Multiple copies prohibited. Incorporation or alteration into another form as embellishment for artistic purposes for other than temporary purposes prohibited.
Music -sheet music, songs, lyrics, operas, musical scores, compact disk, disk, or cassette taped recordings	Single copy of up to 10% of a musical composition in print, sound, or multimedia form.	Same as immediately above
Broadcast programs	Single copy of off-air simultaneous broadcast may be used for a period not to exceed the first 45 consecutive calendar days after recording date. Use by only individual teachers. Copyright notice required.	Same as immediately above. May not be done at direction of superior. May not be altered.

This chart was adapted from Washington State University Guidelines.

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Conclusions: Today's teachers face tremendous challenges in expanding learning opportunities for their students while complying with copyright and fair use laws. However, the World Wide Web offers help which offers a wealth of information on the issue. (Click the Web Guide to the left for select resource links.)

Using Internet resources, teachers can find ways to show their resourcefulness as learning managers and to practice honesty as models for tomorrow's citizens.

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References

Carter, Mary E. (1996). Electronic highway robbery: An artist's guide to copyrights in the digital era. Berkeley: Peachpit Press.

Chase, Mark E. (No date). Educator's attitudes and related copyright issues in education: A review of selected research. Available: http://www.nlc-bnc.ca/ifla/documents/infopol/copyright/cham.txt. [1997, November 10].

Fishman, Stephen. (1997). The copyright handbook: How to protect & use written works. (4th ed.). Berkeley: Nolo Press.

Princeton University Information Access Group. (No date). General information about fair use. Available: Princeton University http://infoshare1.princeton.edu:80/reserves/libcitcopyright.html#genfair. [7 November, 1998].

Rutkowski, Kathy. (1996). The Ethics of Networking. Teachers/Students On The Range:Teaching Ethics and Promoting Law and Order in the Wild Wild Web. Available: Chaos Creations. [6 November, 1998--former Web page--no longer available; contact author by e-mail at kmr@chaos.com.]

Talab, R. S. (1986). Commonsense copyright. Jefferson, N.C.: McFarland & Company, Inc.

University of Texas System. (No date). Crash course in copyright. Available: University of Texas: http://www.utsystem.edu/ogc/IntellectualProperty/cprtindx.htm. [7 November, 1998].

Washington State University. (1997, October 22). Guidelines for educational use of copyrighted materials. Available: Washington State University http://publications.urel.wsu.edu:80/copyright/CopyrightGuide/copyrightguide.html. [7 November, 1998].

Original research submitted 11/17/97 for
EDUC 220i--Developing Educational Materials for the World Wide Web
The George Washington University
Educational Technology Leadership Program
Kathy Rutkowski, Instructor