ACA Distance Educator's ToolKit
Guide to Copyright and Fair Use: as of Jan, 2003
"Educators may use materials over a closed circuit, and access to fair use material must be limited to class members."
How can Copyright Permission be Obtained?
Copyright in Multimedia Productions.
Section 110 of the 2002 TEACH Act pertaining to Web Materials.
Educators have always utilized outside resources to enhance the learning experience for their students. These resources can range from a newspaper clipping to a book to a movie. All of these items, and many other resources, are copyrighted materials.
The Copyright Law of 1976 established the rights of the copyright holder as well as providing for the use of copyrighted materials, especially in educational settings. In order to comply with the law in the area of copyright and proper use of copyrighted materials, educators must be aware of the law and the parameters that govern proper or "fair use" of copyrighted publications (Dalziel, 1995).
There are both civil and criminal penalties for infringement of copyright law. Civil awards generally include a monetary award of up to $1,000,000 (Mason, 1996), attorney fees, an injunction against the violator, and confiscation of the materials that used the copyrighted works (17 USC sections 502-505).
Distance educators must have special regard for copyright law, since the materials involved may constitute tangible proof of any violations.
A copyright grants the holder the sole right to reproduce or grant permission to others to reproduce the copyrighted works. The copyright holder is defined as the person who owns the exclusive rights to a work. The protection is limited to original works, whether or not they have been published. However, it is the expression of the idea that is copyrighted, not the idea in and of itself (Brinson and Radcliffe, 1994).
Copyright may be held on a variety of original works which include: literary works, musical works, dramatic works, graphical works, motion pictures, sound recordings, and architectural works (17 USC section 102, and Brinson and Radcliffe, 1994).
For works created prior to 1978, copyright protection lasts 75 years from the date of first publication or 100 years from the date of creation of the work, contingent on which date allows the copyright to expire first. For works created after 1978, protection begins at the creation of the work and lasts 50 years after the death of the author (17 USC section 104A).
The concept of "fair use" was established in the Copyright Law of 1976. It specifies situations in which copyrighted materials may be used without express permission of the copyright holder (17 USC section 107). However, with the technology available today, it is very easy to abuse the "fair use" provision. The US House of Representatives suggested that the three major considerations in determining fair use should be: brevity of the selection, spontaneity of the decision, and the cumulative effect of the use of the selection (HR 1476, 1976).
Section 107 of the Copyright Law lists four factors that define "fair use" (17 USC section 107):
- The purpose and character of the use must be educational or non profit in nature.
- The nature of the copyrighted work.
- Copied material must be an excerpt or a portion of the original work without being a critical portion.
- The teacher may not impair the marketability of the work. This is the most difficult condition to determine and is the most controversial (Dalziel, 1995).
Publishers and educators agreed to more specific guidelines which will provide a list of safe parameters in which colleges may operate. However, if a college exceeds the guidelines, they will open themselves to a lawsuit to challenge the use as fair. (Dalziel, 1995).
These guidelines indicated that copying is allowed when the instructor decides to use a work solely for educational purposes (NACS and AAP, 1991) and also outline the length of works that may be copied:
- A complete article or story less than 2,500 words;
- 1,000 words or 10% (whichever is shorter) of a prose work that is excerpted;
- One illustration, chart, diagram, or picture per chapter per book or periodical issue; and
- A short poem of less than 250 words, or an excerpt of a longer poem of not more than 250 words.
- The guidelines also require that the copying be for only one course, and no more than one short poem, article, or story or two excerpts can be copied from the works of any one author.
There are also several prohibitions related to fair use. These are guidelines, and are not the law (NACS and AAP, 1991).
- Unauthorized copying may not be used to replace an anthology or compilation.
- Unauthorized copies may not be made of consumable works such as workbooks or standardized tests.
- Unauthorized copying may not substitute for the purchase of books, authorized reprints, or periodicals.
How Can Copyright Permission Be Obtained?
Copyright permission must be obtained from the copyright holder of the work in which you are interested. However, copyright notice is optional for works published on or after March 1, 1989, so tracking down the copyright holder may be difficult (NACS and AAP, 1991).
When requesting copyright permission, include all of the following information (NACS and AAP, 1991):
- Full name(s) of the author, editor, and/or translator;
- Title, edition, and volume number of the work;
- Copyright date of the work;
- ISBN for books or ISSN for magazines;
- Exact pages, figures, and illustrations you wish to use;
- The number of copies to be made;
- If the material will be used alone or in combination with other works;
- Name of the college or university;
- Date when the material will be used; and
- Instructor’s full name, address, and telephone number.
Copyright in Multimedia Productions
As educators, preparing multimedia presentations is a viable teaching strategy. In doing so, the instructor must keep in mind some basic principles (Brinson and Radcliffe, 1994):
- Combining content from other sources can be copyright protected.
- Original multimedia works are copyrighted.
In 1995, the Consortium of College and University Media Centers established a working group of educators and copyright holders to establish a group of mutually agreed upon guidelines for multimedia fair use (Dalziel, 1995). Although no conclusions have been reached, those involved tend to agree with the following statements (Dalziel, 1995):
- Educators may use their own multimedia presentations for educational use.
- Educators may use materials over a closed circuit, and access to material must be limited to class members.
- Commercial reproduction or distribution must have copyright permission. It is strongly recommended that multimedia producers obtain copyright permission during, not after, the production is developed.
Section 110 of the TEACH Act (Nov. 2002)
Limitations on exclusive rights: Exemption of certain performances and displays, notwithstanding the provisions of section 106, the following are not infringements of copyright:
(A) the performance or display is made by, at the direction of, or under the actual supervision of an instructor as an integral part of a class session offered as a regular part of the systematic mediated instructional activities of a governmental body or an accredited nonprofit educational institution; and
(B) the performance or display is directly related and of material assistance to the teaching content of the transmission; and
(C) the transmission is made solely for, and, to the extent technologically feasible, the reception of such transmission is limited to--
(i) students officially enrolled in the course for which the transmission is made; or
(ii) officers or employees of governmental bodies as a part of their official duties or employment; and
(D) the transmitting body or institution--
(i) institutes policies regarding copyright, provides informational materials to faculty, students, and relevant staff members that accurately describe, and promote compliance with, the laws of the United States relating to copyright, and provides notice to students that materials used in connection with the course may be subject to copyright protection; and
(ii) in the case of digital transmissions--
(I) applies technological measures that reasonably prevent
(aa) retention of the work in accessible form by recipients of the transmission from the transmitting body or institution for longer than the class session; and(bb) unauthorized further dissemination of the work in accessible form by such recipients to others; and
(II) does not engage in conduct that could reasonably be expected to interfere with technological measures used by copyright owners to prevent such retention or unauthorized further dissemination;
[The TEACH Act further added this definition at the end of Section 110:]
In paragraph (2), the term `mediated instructional activities' does not refer to activities that use, in 1 or more class sessions of a single course, such works as textbooks, course packs, or other material in any media, copies or phonorecords of which are typically purchased or acquired by the students in higher education for their independent use and retention or are typically purchased or acquired for elementary and secondary students for their possession and independent use.
No such material stored on the system or network controlled or operated by the transmitting body or institution under this paragraph shall be maintained on such system or network in a manner ordinarily accessible to anyone other than anticipated recipients.
This new text was signed into law on November 2, 2002, by President Bush when he signed the 21st Century Department of Justice Appropriations Authorization Act (H.R. 2215), which included the Technology, Education, and Copyright Harmonization (TEACH) Act.
This statute is available on-line in its entirety at the U.S. Copyright Office, http://lcweb.loc.gov/copyright/title17/.
A basic knowledge of copyright law is essential for any ACA Faculty member. Instructors in a distance education classroom are subject to additional concerns due to the nature of the educational environment. This issue concerns the instructor, the students, the administration, and the institution with which they are all involved, and it is not an issue that can be taken lightly.
References
Bruwelheide, J. H. (1994) In Willis, B. (Ed.) Distance Education: Copyright Issues. Distance Education: Strategies and Tools. Educational Technology Publications: Englewood Cliffs, NJ.
Dalziel, C. (1995). Copyright and You: Fair Use Guidelines for Distance Education. Techtrends, October, 6-8.
House Report (HR) No. 1476. (1976). 94th Congress, 2nd Session.
National Association of College Stores (NACS), Inc. and Association of American Publishers (AAP). (1991). Questions and Answers on Copyright for the Campus Community: National Association of College Stores, Inc., Oberline, OH.
17 United States Code (USC). U. S. Copyright Act, As Amended.
21st Century Department of Justice Appropriations Authorization Act (H.R. 2215), which included the Technology, Education, and Copyright Harmonization (TEACH) Act (2002).