FAIR USE HARBOR

By Sally O’Neill & Courtney Ziani

BACKGROUND BEACH

The legislation of the ability to freely distribute copyrighted materials was

defined in the 1976 Copyright Act. The copyright, or exclusive right of a
creator to reproduce, prepare, derive, distribute, perform, display, sell,
lend or rent their creations protects all forms of expression. These forms
of expression include literary, multimedia or artistic works, computer
programs, and websites. Without the author's or publisher's express
written consent, duplication of such materials is ILLEGAL.

However, under certain "fair use" guidelines, educators or individuals

operating in a non-profit environment may make single copies of
copyrighted material. The law is vague as to what specifically constitutes
"fair use." And, in our digital age of Internet, file-sharing, discussion
boards and email pinpointing this definition becomes even more
challenging.

As educators working for a non-profit institution, we may use

copyrighted materials "fairly." We may judiciously photocopy and
distribute materials that will be used for purposes of criticism, news
reporting, teaching, scholarship or research. A general rule of thumb to
avoid legal trouble is to never copy more than is absolutely necessary. A
specific definition of what "fair use" exactly is does not exist. However, 4
principles have been outlined to help us better understand the concept:

First, the purpose and character of the materials copied must remain in a
non-profit environment. If the end purpose of the copies are for
commercial use, then consent by the author or publisher must be
obtained. If not, you are in violation of the 1976 Copyright Act. For most
teachers in a public school, this criteria of "fair use" is a given.

Second is the nature of the work. Has the selected piece been created for
criticism, news reporting, teaching, scholarship or research purposes? If
affirmative, the use of the work under "fair use" is permitted.

Third is amount of substantially. How much of the given work is copied?

Just a passage? An entire chapter or the entire book? The quantity of the
work being copied is pertinent to it's fair use. Only the very necessary
parts of the author's work may be reproduced - nothing more, nothing
less. In fact, to be on the safe side, less is more...
Fourth is the effect on market potential of the reproduction of
copyrighted work. If the photocopying of such work took away from an
eventual sale, then a violation has been committed.

Applications for teachers:

Application is to help educators properly use materials and to avoid

unlawful copyright infringement. The aforementioned categories help
distinguish between the fair and lawful use of copyrighted materials
versus their illegal reproduction and distribution. Copyright laws are
important for maintaining the integrity of an author's work and to respect
the creative process. These suggestions by the federal government with
regards to the "fair use" of such materials allow educators and individuals
in a non-profit environment to take advantage of various works in their
studies, scholarship and research, without negatively affecting their
market value.

MULTIMEDIA WHARF

After the 1976 Copyright Act, the digital age required an update to the
acquainted text. In 1996, twenty years later, multi or hyper media fair use
guidelines were created. Multimedia works include the integration of text,
graphics, audio, video or other computer-based creations into teacher or
student presentations or projects. Still referring to an educational, non-
profit setting, these 21st century guidelines are the means by which
educators and students may use copyrighted multimedia materials
without seeking permission or payment from the author.

The 1996 guidelines for educational multimedia suggest several ways of

"fair usage" in this new domain:

Students and faculty may both incorporate others' works into their
computer-based creations or performances for academic purposes such
as assignments, projects or curriculum materials.

Faculty may also allow student access to others' copyrighted multimedia

works via "distance learning" - provided that only the students have
access to the materials. In addition, faculty members may use other's
copyrighted multimedia creations at professional meetings and retain
them in their own portfolios.
In addition to the general multimedia fair use guidelines, content quantity
guidelines have been established to regulate how much of a copyrighted
work is allowed before formal permission is required.

Copyrighted video, movie or motion clips are allowed up to 10%, or 3

clips, which ever is less.

Copyrighted text is allowed up to 10% or 1000 words, which ever is less

Copyrighted poems have 250 word maximum, 3 poems per poet or 5

poems from an anthology

Copyrighted music or audio clips are allowed up to 10% or 30 seconds,

which ever is less

Copyrighted photo, image or graphic are limited to 5 maximum by the

same author, 10% or 15 works, which ever is less

Copyrighted database information is limited to 10% or 2500 fields or cells

of information

Application for teachers:

In this application teachers can use a maximum of shared video, text and
music to their benefit as long as they don't exceed the government
copyright requirements. If a text source such as a newspaper article is
used for an assignment then they can use this source for collaboration in
class.

SINGLE COPYING INLET

Based on the 1976 Copyright Act, guidelines for reproduction quantity

were not specified. However, guidelines do stipulate that teachers many
copy:

A book chapter

Newspaper or magazine article

Short story

Short essay

Short poem
Chart, graph, diagram, drawing, cartoon, picture from magazine,
newspaper or book

In the library, a single copy of copyrighted material may be made. This

may be done on a self-service basis on a copy machine bearing the text
of the 1976 Copyright Act. Thus, any violation would be subject to the
individual himself.

Use and creation of "reserve rooms" is allowed, but within certain

limitations. A faculty member may request that certain copyrighted works
be set-aside for their students to review (and make 1 single copy of) for
the duration of the course's semester/term. After the course is over, the
materials are to be returned to the librarian.

Today, use and creation of "electronic reserves" or "virtual reserve rooms"

is a more modern "fair use" method for legally sharing copyrighted
materials in an educational environment; but is fraught with controversy.
The digitizing of an article or the adding of a hyper link to a class website
allowing students access to copyrighted information is allowed in a
controlled environment. Only enrolled students may have access to this
information for a specific time period (semester/term). Also, brevity is
again suggested with non-essential information not being included and
would be considered a violation.

Lastly, there are course-packs - for which Kinko's paid over $2 million in
damages for copyright violations. These instructor-selected groups of
readings for students in a particular class may or may not breech the fair
usage of "multiple copies" issue. The guidelines on the subject are as
follows:

Course-pack materials must meet brevity limitations and time limitations

(semester or term)

Reproduction must be done in a non-profit setting

Institution attorney should be contacted to clear-up any ambiguity

A better solution to the course-pack may be leaving reading materials in

the library's reserve room. This would require the student to make their
own, sole copy of the required material and any copyright violation would
be their responsibility.
Application for teachers

I will work with the librarian to have particular written materials available
for students to make their one single copy for classroom use. Of course,
the copyright violation text should be visibly posted above the copy
machine to remind students to respect the intellectual property of others.

COVE OF MULTIPLE COPIES

Currently the House version of the 1976 Copyright Act is still in effect
today. There are guidelines in making copies for students in class, but
these “guidelines’ are not the law. The importance of using these
guidelines will direct the teacher in abiding by the proper use of copying
for her students and help make decisions with what information she will
use in the class curriculum. Some ways a teacher can work under the
copyright laws would be making a single photocopy of a chapter of a
book, an article from a magazine, journal or newspaper, a short story,
short essay, or a short poem. Another way is to make a copy of a picture,
chart or graph from any necessary materials.

These are the "fair use" guidelines for making multiple copies for the
classroom.

* For an article, the limit is 2,500 words.

* For a longer work of prose, the limit is 1,000 words, or 10% of the work,
whichever is less.

* For a poem, the limit is 250 words.

* For a longer poem, an excerpt of no more than 250 words may be used.

* No more than one chart, diagram, cartoon or picture from a book,

periodical or newspaper.

Copying must be done at the initiative of the teacher, and when the
teacher feels inspired and does not have time to make the contact to
request copyright permission. With this guideline, permission is granted
for only one copy per student. They will not be charged by the publisher,
only a possible cost recovery from the teacher or school. The teacher
cannot use the copied materials more than one term and can only be
used for the one course in which the original copy was made.
There are curriculum materials called "consumable works" and they can
not be copied. Some of these are workbooks, and standardized tests. You
may not put copies into collective works, also known as anthologies. This
violates the right of the copyright holder to make "derivative works."

When making copies, the teacher has permission to:

* Copy one work from a single author.

* Use three authors to be copied from a single collective work and an

example would be an anthology

* Only nine instances of multiple copying occur during a single term or

semester.

* A teacher can copy as many newspaper articles and periodicals as

needed, while still keeping within the fair use guidelines.

Application For Teachers:

When the teacher feels inspired to share copy written work, she will abide
by the guidelines to not copy more than necessary. For example she will
not reproduce an assigned poem that is longer than 250 words and will
not reuse it for future classes. When using copy written clip art for
newsletters, the limit will be one from each source.

AUDIO VISUAL LAGOON

An Audio Visual (AV) work is a form of expression so it’s protected under

the copyright guidelines. To describe an AV work would be that it is has
to be composed of a sequence of pictures, sound, or a combination of
both. A teacher should not confuse it with multimedia, or also by a term
known as hypermedia. These involve the inclusion of text, graphics,
sound and/or video clips in a computerized environment. A teacher can
incorporate AV work into a multimedia work under the current guidelines.

Some important examples of AV works are:

* Videos which encompass: VHS tapes, laser discs, DVD

* 35 mm slides
* Filmstrips: which can be accompanied by audio-cassette presentation
* 16 mm movies

When an educator presents an AV work to students we are talking about a

term called “performance and display”, and there is an important
component to it so it’s listed in a separate section of the Copyright Act.
“Fair Use” is also a term used in regards to AV work and it refers to when
an educator perceives the need to copy a portion of an AV work to be
used in an instructional situation. There are differences between "Fair
Use" and "Performance and Display” in the 1976 Copyright Act, and it is
important for the teacher to understand both of the guidelines.

The 1976 Copyright Act provides for teachers to perform AV works to

students only in hands-on, physical environment. It does not grant
students permission to use in distance learning. Under the 2002 TEACH
ACT this policy has changed and enabled the digital transmission of AV
works under certain conditions. This ACT allows teachers to transmit a
portion of an AV work to students at a distance.

There are certain restrictions that teachers must follow in regards to the
AV copyright guidelines. The AV curriculum must meet the instructional
objective, and the AV work must be a lawfully made copy. Showing an AV
work in class, such as a movie like Disney is potentially an infringement.
Many lawsuits have occurred because of teacher’s defiance or ignorance
about the AV copyright laws. These are exclusive rights of the copyright
holder, and they come with serious consequences and enforced by
copyright holders. Under certain circumstances, a teacher may copy brief
portions for instructional purposes.

For instance, teachers CANNOT copy the following examples:

* A 16 mm film onto VHS videotape

* Copy a 3/4-inch videotape onto VHS tape

* Copy a laser disc onto videotape

* The latest technology includes DVD and blue–ray discs to the list

Application for teachers:

Students who post unauthorized multimedia clips to their classroom

blogs will have them taken down by yours truly. On my own class blog
and class website, I will be sure to model appropriate copyright behavior
by getting permission to use certain clips, or working within the legal
guidelines.
DIST-ED POINT

In November 2002 President Bush signed into law the TEACH Act which
made it possible under certain conditions to perform and display audio-
visual (AV) works without permission to students-at-a-distance. This
allowed non-profit institutions to have this privilege and offered only to
registered students. Under the provision, teachers had to agree to use a
reasonable portion, use for a brief period of time, and limit to use of AV
works. It is up to the instructor to define the length of time necessary for
online instruction.

The TEACH Act made important changes to the 1976 Copyright Act, a law
that did "not let educators use copyrighted content in online classrooms,
where teachers and students meet on a virtual campus instead of an
actual one." (Conyers, House Report 107-687).

The lawmakers of the TEACH Act looked at certain criteria for learning at-
a-distance and realized that students and teachers would not be online at
the same time. Because the copyrighted material is available for the
length of the students registered class session, this enforced the teacher
to regulate a system that denied access to information once the class was
over. This has helped in preventing unauthorized copying and
distribution of copyrighted works, but there are still loopholes that make
the system imperfect.

A few key points to help prevent unauthorized copyright use:

* A digital version of the copyrighted work must be used if there is one

available

* If digital version is unavailable, or if a digital version is copy-protected,

use under teacher’s discretion

* As stated in the TEACH Act, only a "reasonable and limited" amount of

some works may be used to satisfy the class objectives

* Use of images and displays are comparable to a live classroom session

* Any use of materials must be curriculum based and necessary for

instruction

* One copy allowed for digital instruction

* Any technological protection measure that prevents copying of an
audiovisual work must be used

Under the TEACH Act, the responsibilities are great in protecting

copyright ownership. Under this Act, the school or teacher that uses the
material must provide information about copyright along with “fair use”
of materials and their performance or display. As a school site, they must
have policies in place that enforce the important guidelines set by the
copyright laws. This includes notifying students the information of the
materials used to protect copyright infringement. Suggestions would be
to offer the media information on a course syllabus.

Applications for teachers:

Under these guidelines, the use of Internet media such as YouTube will
be discouraged for teaching tools and assignments. The teacher will
cannot use media to her personal discretion but will add different aspects
of digital media to enable the students in their education.