Copyright and Fair Use
Jim Van Horn
The founding fathers understood the importance of intellectual property and provided for it in the Constitution.
“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.” (Article 1, Section 8 of the United States Constitution).
They understood that in order to encourage artistic and scientific pursuits, the creators had to be able to derive financial gain from their creations. Copyright is one form of intellectual property .
In short, copyright is “the right to copy”. Copyright protects more than just the creation of a facsimile, however. Copyright provides protection for:
“…original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” (1976 Copyright Law 17 U.S.C. § 102).
In order to have copyright protection the work must first be original. One cannot copyright a piece of work just because no one else has copyright ownership – the work must be original.
Copyright protection no longer requires formal application and registration. Once it is “fixed in any tangible medium” the author has ownership and copyright protection. The legislators allowed for future technological advances by indicating that the medium could be “now known or later developed.”
The copyright law gives the original author the right to reproduce the work, prepare derivatives of the work, distribute copies for sale, perform the work if it is musical or dramatic in nature, and to display a visual work publicly. By granting these exclusive rights to the author, the law disallows these activities to anyone else.
The copyright law attempts to balance the benefits of creators and consumers. The creator has the right to benefit financial or otherwise from his work. This benefit is what fuels the fires or creativity. But the author’s benefit must be weighed against the general publics benefit – access to creative works. How then can teachers use original works?
First the teacher and their students can purchase copies of the work. The school could also purchase a license to make copies of the work. This license can be obtained directly from the copyright holder or through a copyright clearinghouse. Copyright clearinghouses act as brokers between content creators and content consumers. Consumers pay a flat rate and are allowed access to copyrighted materials from multiple content creators who have signed up with the clearinghouse. The teacher can obtain permission to make copies of the work directly from the copyright owner. In some cases no permission is necessary.
No permission is required for materials that are not eligible for copyright protection. These include raw facts or ideas and even works consisting entirely of information that is itself not copyrightable.
Work that is in the “Public Domain” is free to be used by anyone without restrictions. The author may choose to place their work in the public domain in order to allow for maximum exposure. Copyrighted material falls into public domain when the term of the copyright expires. Under the current copyright law a copyright expires 70 years after the death of the last surviving author of the work. If the work is created by an employee of a company, “the duration of copyright will be 95 years from publication or 120 years from creation, whichever is shorter.” (U.S. Copyright Office)
An alternative taken by some creators is to register their works with Creative Commons (creativecommons.org). Creative Commons offers a middle ground between copyright (full restrictions) and public domain (no restrictions). Authors can modify the terms for use. The different CC license conditions are:
Attribution Only requirement is to give credit, attribution.
Share Alike You use it only to the degree that you allow others to use your work
Non-Commercial Limited to non-commercial use
No Derivative Only verbatim copies of your work, not derivativ
Works
There are additional exceptions that are important for educational uses of copyrighted materials.
Fair Use Doctrine (Section 107)
Library Exemption (Section 108)
Classroom Exemption (Section 110)
Distance Learning (TEACH Act 2002)
The Fair Use Doctrine is delineated in Section 107 of the 1976 Copyright Act.
fair use of a copyrighted work, including … use … for purposes such as criticism, comment, news reporting, teaching …, scholarship, or research.”
(Section 107 1976 Copyright Act)
Some of the factors used by the courts to determine fair use are the purpose and character of the use, the nature of the copyrighted work, the amount of the portion used, and the effect of the use upon the market value of the work. Nonprofit educational purposes are looked upon more favorably than commercial purposes. The court has also recognized the spontaneity of use in some educational settings where time does not allow for obtaining permission before use.
If the copyrighted work was created for educational purposes in the first place, claims of fair use are less likely to be allowed. In any case, the fair use doctrine cannot be used to avoid purchasing the materials. Copying educational materials that would be considered “consumables” would not be covered under the fair use doctrine.
The amount of the work that is copied is not set forth in the law but guidelines have been adopted by several educational organizations. If more that 10% of a work is copied claims of fair use will probably be denied.
Courts also consider the commercial effect of the use upon the value of the work. If sales of the work are lost due to the teacher copying all or part of the work then fair use may not be granted.
When a teacher plans to continue to use copies of works from semester to semester the teacher must seek and obtain permission. The spontaneous use of the material can only be valid for the first semester that the material is used in a course.
Fair use does not remove the requirement to attribute the work to its original author or the need to display the appropriate copyright notice.
The Technology, Education, and Copyright Harmonization (TEACH) Act is an extension of the classroom exemption as it applies to distance learning. The intention was to give distance educations the same protection as classroom education. In order for the use of copyrighted materials in distance education to qualify for the TEACH Act exemptions, the following criteria must be met:
- The institution must be an accredited, non-profit educational institution.
The use must be part of mediated instructional activities.
The use must be limited to a specific number of students enrolled in a specific class.
The use must either be for ‘live’ or asynchronous class sessions.
The use must not include the transmission of textbook materials, materials “typically purchased or acquired by students,” or works developed specifically for online uses.
Only “reasonable and limited portions,” such as might be performed or displayed during a typical live classroom session, may be used.
The institution must have developed and publicized its copyright policies, specifically informing students that course content may be covered by copyright, and include a notice of copyright on the online materials.
The institution must implement some technological measures to ensure compliance with these policies. (U.S. Copyright Office)
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