Copyright and Fair Use

Written by Megan J. Forness , Rochester High School , Rochester, IL
Revised by Karen Eder

*Permission is granted to freely copy this document in electronic form, or to print for personal use. If you had not seen a notice like this on the document, you would have to assume you did not have permission to copy it. This document is still protected by you-know- what even though it has no copyright notice.

Introduction

Copying is a crime of ethics that is, unfortunately, committed in even the best schools. Teachers warn against this act tirelessly, and most students develop an understanding that it is not acceptable and that there are consequences for this action. On a somewhat larger scale, legislation has existed for over 200 years to dissuade a form of copying. The Copyright Act of 1976 is is a federal law that exists "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." Its intent is to clarify what was protected under copyright, for whom and for how long. With the advent of new media technologies, especially the Internet, issues of copyright infringement are highly controversial and more difficult to monitor. The Digital Millenium Copyright Act (S. 2037), which unanimously passed the Senate on May 14, 1998 and the Digital Era Copyright Enhancement Act (H.R. 3048), which is still awaiting approval in the House, are currently two main pieces of legislation that address the topic of copyright on the Internet. As educators enhance curriculum with computers and the Internet, it is necessary to abide by copyright laws as they apply to these technologies.

Overview of Copyright Law

Copyright protection subsists, in accordance with this title, in 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. Works of authorship include the following categories:

(1) literary works;

(2) musical works, including any accompanying words;

(3) dramatic works, including any accompanying music;

(4) pantomimes and choreographic works;

(5) pictorial, graphic, and sculptural works;

(6) motion pictures and other audiovisual works;

(7) sound recordings; and

(8) architectural works.

The above categories must remain fluid to incorporate modern technologies. A computer program may be categorized as a "literary work," for example. However, copyright does not protect any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the medium through which it is communicated.

There are sever al ways to protect one's own copyright. Although the use of a copyright notice is advisable, works published after March 1, 1989 are automatically protected under copyright. This protection exists from the moment the works are secured on paper, recorded on tape or a floppy disk, or embedded on a CD-ROM, just to name a few examples. Be advised that using a copyright notice will increase the chances of collecting damages for copyright infringement and decrease the likelihood of others using works without proper authority. It is possible to gain additional protection by paying a fee to register copyrighted works with the Copyright Office in Washington, DC.

Fair Use

There exists a provision of the Copyright Act called Fair Use which limits the copyright holder's rights in order to promote free speech and learning. Among other situations, it allows copyrighted material to be reproduced for the purposes of teaching. As educators, the Fair Use provision is especially significant. Below are four factors to be considered in the Fair Use Test:

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

2. The nature of the copyrighted work;

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4. The effect of the use upon the potential market for or value of the copyrighted work.

Fair Use allows educators to utilize certain copyrighted materials for the purposes of furthering education. The mere existence of online materials qualifies them as having copyright. These materials do not need to be registered with the Copyright Office nor do they need to exhibit the copyright symbol.

Issues

The use of educational reference CD's and Internet sites for collecting information can be major copyright land mines for students as well as educators. More and more, students and teachers are using these resources to collect information and write reports. Additionally, the use of multimedia presentations is becoming more expected as technology continues to become more widely available. Teaching students to be aware of copyrighted materials and graphics is an essential part of this process. It is important to know what is allowed and what is not when utilizing the information obtained.

Several sites claiming to be "homework help" resources actually contain resources which allow students to purchase samples of term papers on a variety of topics. Although most of these sites contain instructions to the students prohibiting them to present these works as their own, they are easily obtained and provide annotated citations. To guard against students wishing to submit these materials as their own, teachers are wise to require outlines and rough drafts in the process of these types of projects.

Plagiarism is a similar issue that may be confused with copyright. The copyright law applies mainly to the economic loss incurred due to an infringement. The copyright owner can seek as damages whatever profits were lost as a result of the infringement. By contrast, the crime in plagiarism to which teachers respond is, mainly misrepresentation of work. Plagiarism may be considered a crime against ethics whereas copyright violation has its legal ramifications.

Issues regarding audio files and the MP3 system are currently hot topics of debate. Sound recordings are protected under the Copyright Law. Audio files are very easy to acquire and copy. Because of this, it is very easy for students to obtain and distribute their favorite music without spending a dime. This becomes an issue of copyright violation because the musicians are losing money by providing free access to their work. It's sort of a "why buy the cow when the milk is free" situation.

Limitations in Multimedia Applications:

Time

Educators may use their projects for teaching courses for two years. Use beyond that time period requires obtaining permission for each copyrighted portion.

Portion

Portions are generally specified "in the aggregate," meaning the total amount that can be used from a single copyrighted work.

Motion Media

Up to 10% or 3 minutes, whichever is less, from a single copyrighted work.

Text Material

Up to 10% or 1000 words, whichever is less, from a single copyrighted work. Special limitations are placed on poems.

Music, Lyrics, and Music Video

Up to 10%, but in no event more than 30 seconds, of the music and lyrics from an individual musical work.

Illustrations and Photographs

No more than 5 images by an artist or photographer. From a published collective work, no more than 10% or 15 images.

Data Sets

Up to 10% or 2500 fields or cell entries from a database or table.

Copying and Distribution

There may be no more than two copies, only one of which can be placed on reserve. An additional copy may be made for preservation (backup) purposes.

Minimizing Potential for Copyright /Fair Use Infringements

As teachers, there are many ways in which students can be encouraged to abide by the copyright laws as they pertain to education.

Individual Actions

1. Teachers should set a good example by not using copyrighted materials, without permission, for classroom use.

2. Teachers should remind students to always document sources when conducting Internet and reference CD research.

3. Before using a graphic from a CD or Internet site, check to see if it is copyrighted, and if so, ask permission before using it.

4. Avoid using the "cut and paste" method when collecting information from the Internet. Paraphrase the information to avoid a charge of plagiarism.

Network/School Actions

1. Schools should add a clause in their Acceptable Use Policy that prohibits knowingly violating copyright laws.

2. Purchase graphics CD's that contain a variety of clip art for students to utilize.

Annotated Web Sites

Copyright Implementation Manual (CIM) http://groton.k12.ct.us/mts/cimhp01.htm Its purpose is to provide teachers, librarians, and students with clear instructions on the permissible uses of copyrighted materials. This is an excellent resource for educators that includes specific information about what is permitted in multimedia productions. This site contains a permission form to facilitate requests to use copyrighted material.

The Copyright Website http://www.benedict.com/ A copyright web site which provides information regarding copyright issues in a very readable, often entertaining manner; links include: Famous Copyright Infringements, Basic Fundamentals, Internet and Software, Fair Use and Public Domain, What's News and a copyright discussion group. It also includes the factors to be considered in the "fair use" use of material.

10 Big Myths About Copyright Explained http://www.templetons.com/brad/copymyths.html A quick read, and very well written.

Copyright Myths, from "10 Big Myths About Copyright" by Brad Templeton. http://palimpsest.stanford.edu/mirrors/faq/copyright/myths/part1 Unsure if something violates copyright on the Internet? This is an excellent resource that addresses 10 common myths about this issue.

Back to Educator's Guide to Computer Crime and Technology Misuse

Developed 2/20/99. Last modified 6/02.