Educational Fair Use in Copyright Compiled by Ellen Bell, Librarian Amador Valley High School.

Educational Fair Use Educational Fair Use in Copyrightin Copyright

Compiled by Ellen Bell, Compiled by Ellen Bell, LibrarianLibrarian

Amador Valley High SchoolAmador Valley High School

What is copyright?What is copyright?

Copyright is a form of protection Copyright is a form of protection grounded in the U.S. Constitution and grounded in the U.S. Constitution and granted by law for original works of granted by law for original works of authorship fixed in a tangible authorship fixed in a tangible medium of expression. medium of expression.

Copyright Law of 1976Copyright Law of 1976The Copyright Act states that works of authorship include the The Copyright Act states that works of authorship include the

following types of works:following types of works:

Literary worksLiterary works. Novels, nonfiction prose, poetry, newspaper articles and . Novels, nonfiction prose, poetry, newspaper articles and newspapers, magazine articles and magazines, computer software, newspapers, magazine articles and magazines, computer software, software documentation and manuals, training manuals, manuals, software documentation and manuals, training manuals, manuals, catalogs, brochures, ads (text), and compilations such as business catalogs, brochures, ads (text), and compilations such as business directories directories

Musical worksMusical works. Songs, advertising jingles, and instrumentals. . Songs, advertising jingles, and instrumentals. Dramatic worksDramatic works. Plays, operas, and skits. . Plays, operas, and skits. Pantomimes and choreographic worksPantomimes and choreographic works. Ballets, modern dance, jazz dance, . Ballets, modern dance, jazz dance,

and mime works. and mime works. Pictorial, graphic, and sculptural worksPictorial, graphic, and sculptural works. Photographs, posters, maps, . Photographs, posters, maps,

paintings, drawings, graphic art, display ads, cartoon strips and cartoon paintings, drawings, graphic art, display ads, cartoon strips and cartoon characters, stuffed animals, statues, paintings, and works of fine art. characters, stuffed animals, statues, paintings, and works of fine art.

Motion pictures and other audiovisual worksMotion pictures and other audiovisual works. Movies, documentaries, . Movies, documentaries, travelogues, training films and videos, television shows, television ads, and travelogues, training films and videos, television shows, television ads, and interactive multimedia worksinteractive multimedia works. .

Sound recordingsSound recordings. Recordings of music, sounds, or words. . Recordings of music, sounds, or words. Architectural worksArchitectural works. Building designs, whether in the form of architectural . Building designs, whether in the form of architectural

plans, drawings, or the constructed building itselfplans, drawings, or the constructed building itself

How Long Copyright Protection How Long Copyright Protection EnduresEndures

Works created on or after January 1, 1978 is Works created on or after January 1, 1978 is given a term enduring for the author’s life given a term enduring for the author’s life plus an additional 70 years after the author’s plus an additional 70 years after the author’s death. death.

Works originally created and published before Works originally created and published before January 1, 1978 is given a renewal term of 67 January 1, 1978 is given a renewal term of 67 years and a total term of protection of 95 years and a total term of protection of 95 years.years.

There is no such thing as an “international There is no such thing as an “international copyright” that will automatically protect an copyright” that will automatically protect an author’s writings throughout the entire world. author’s writings throughout the entire world. Protection against unauthorized use in a Protection against unauthorized use in a particular country depends, basically, on the particular country depends, basically, on the national laws of that country. national laws of that country.

What is Fair Use?What is Fair Use?

Fair use is a copyright principle Fair use is a copyright principle based on the belief that the public is based on the belief that the public is entitled to freely use portions of entitled to freely use portions of copyrighted materials for purposes of copyrighted materials for purposes of commentary and criticism. commentary and criticism.

1. Educational Fair Use 1. Educational Fair Use GuidelinesGuidelines

Publishers and the academic community Publishers and the academic community have established a set of educational fair use have established a set of educational fair use guidelines to provide "greater certainty and guidelines to provide "greater certainty and protection " for teachers. While the guidelines protection " for teachers. While the guidelines are not part of the federal Copyright Act, they are not part of the federal Copyright Act, they are recognized by the Copyright Office and are recognized by the Copyright Office and by judges as minimum standards for fair use by judges as minimum standards for fair use in education. A teacher or pupil following the in education. A teacher or pupil following the guidelines can feel comfortable that a use guidelines can feel comfortable that a use falling within these guidelines is a permissible falling within these guidelines is a permissible fair use and not an infringement fair use and not an infringement

2. Rules for Reproducing 2. Rules for Reproducing Text Materials for Use in Text Materials for Use in

ClassClass The guidelines permit a teacher to The guidelines permit a teacher to

make one copy of any of the make one copy of any of the following: a chapter from a book; an following: a chapter from a book; an article from a periodical or article from a periodical or newspaper; a short story, short essay newspaper; a short story, short essay or short poem; a chart, graph, or short poem; a chart, graph, diagram, drawing, cartoon or picture diagram, drawing, cartoon or picture from a book, periodical or from a book, periodical or newspaper.newspaper.

Rules for Reproducing Text Rules for Reproducing Text Materials for Use in ClassMaterials for Use in Class

Teachers may photocopy articles to Teachers may photocopy articles to hand out in class, but the guidelines hand out in class, but the guidelines impose restrictions. Classroom copying impose restrictions. Classroom copying cannot be used to replace texts or cannot be used to replace texts or workbooks used in the classroom. workbooks used in the classroom. Pupils cannot be charged more than the Pupils cannot be charged more than the actual cost of photocopying. The actual cost of photocopying. The number of copies cannot exceed more number of copies cannot exceed more than one copy per pupil. And a notice of than one copy per pupil. And a notice of copyright must be affixed to each copy.copyright must be affixed to each copy.


Examples of what can be copied and Examples of what can be copied and distributed in class include:distributed in class include:

a complete poem if less than 250 words or a complete poem if less than 250 words or an excerpt of not more than 250 words an excerpt of not more than 250 words from a longer poem from a longer poem

a complete article, story or essay if less a complete article, story or essay if less than 2,500 words, or an excerpt from any than 2,500 words, or an excerpt from any prose work of not more than 1,000 words prose work of not more than 1,000 words or 10% of the work, whichever is less; or or 10% of the work, whichever is less; or

one chart, graph, diagram, drawing, one chart, graph, diagram, drawing, cartoon or picture per book or per cartoon or picture per book or per periodical issue. periodical issue.


Not more than one short poem, article, Not more than one short poem, article, story, essay or two excerpts may be story, essay or two excerpts may be copied from the same author, nor more copied from the same author, nor more than three from the same collective than three from the same collective work or periodical volume (for example, work or periodical volume (for example, a magazine or newspaper) during one a magazine or newspaper) during one class term. As a general rule, a teacher class term. As a general rule, a teacher has more freedom to copy from has more freedom to copy from newspapers or other periodicals if the newspapers or other periodicals if the copying is related to current events.copying is related to current events.


The idea to make the copies must come The idea to make the copies must come from the teacher, not from school from the teacher, not from school administrators or other higher authority. administrators or other higher authority. Only nine instances of such copying for one Only nine instances of such copying for one course during one school term are course during one school term are permitted. In addition, the idea to make permitted. In addition, the idea to make copies and their actual classroom use must copies and their actual classroom use must be so close together in time that it would be so close together in time that it would be unreasonable to expect a timely reply be unreasonable to expect a timely reply to a permission request. For example, the to a permission request. For example, the instructor finds a newsweekly article on instructor finds a newsweekly article on capital punishment two days before capital punishment two days before presenting a lecture on the subject.presenting a lecture on the subject.


Teachers may not photocopy workbooks, Teachers may not photocopy workbooks, texts, standardized tests or other materials texts, standardized tests or other materials that were created for educational use. The that were created for educational use. The guidelines were not intended to allow guidelines were not intended to allow teachers to usurp the profits of educational teachers to usurp the profits of educational publishers. In other words, educational publishers. In other words, educational publishers do not consider it a fair use if the publishers do not consider it a fair use if the copying provides replacements or substitutes copying provides replacements or substitutes for the purchase of books, reprints, for the purchase of books, reprints, periodicals, tests, workbooks, anthologies, periodicals, tests, workbooks, anthologies, compilations or collective works.compilations or collective works.

4. Rules for Recording and 4. Rules for Recording and Showing Television Showing Television

ProgramsPrograms Nonprofit educational institutions can record television Nonprofit educational institutions can record television

programs transmitted by network television and cable programs transmitted by network television and cable stations. The institution can keep the tape for 45 days, but stations. The institution can keep the tape for 45 days, but can only use it for instructional purposes during the first ten can only use it for instructional purposes during the first ten of the 45 days. After the first ten days, the video recording of the 45 days. After the first ten days, the video recording can only be used for teacher evaluation purposes, to can only be used for teacher evaluation purposes, to determine whether or not to include the broadcast program determine whether or not to include the broadcast program in the teaching curriculum. If the teacher wants to keep it in the teaching curriculum. If the teacher wants to keep it within the curriculum, permission must be obtained from within the curriculum, permission must be obtained from the copyright owner. The recording may be played once by the copyright owner. The recording may be played once by each individual teacher in the course of related teaching each individual teacher in the course of related teaching activities in classrooms and similar places devoted to activities in classrooms and similar places devoted to instruction (including formalized home instruction). The instruction (including formalized home instruction). The recorded program can be repeated once if necessary. After recorded program can be repeated once if necessary. After 45 days, the recording must be erased or destroyed.45 days, the recording must be erased or destroyed.

Rules for Recording and Rules for Recording and Showing Television Showing Television

ProgramsPrograms A video recording of a broadcast can be made A video recording of a broadcast can be made

only at the request of, and used by, individual only at the request of, and used by, individual teachers. A television show may not be regularly teachers. A television show may not be regularly recorded in anticipation of requests --for example, recorded in anticipation of requests --for example, there can't be a standing request to record each there can't be a standing request to record each episode of a PBS series. Only enough copies may episode of a PBS series. Only enough copies may be reproduced from each recording to meet the be reproduced from each recording to meet the needs of teachers, and the recordings may not be needs of teachers, and the recordings may not be combined to create teaching compilations. All combined to create teaching compilations. All copies of a recording must include the copyright copies of a recording must include the copyright notice on the broadcast program as recorded, notice on the broadcast program as recorded, and as mentioned above, must be erased or and as mentioned above, must be erased or destroyed 45 days after having been recorded.destroyed 45 days after having been recorded.

The bottom line:The bottom line:

If you are copying material that is If you are copying material that is available for sale without available for sale without compensating the creator of that compensating the creator of that work, you are taking money from work, you are taking money from that person. that person.

Fair Use guidelines for Fair Use guidelines for electronic reserve systems (i.e. electronic reserve systems (i.e.

your website)your website)The following guidelines identify an The following guidelines identify an

understanding of fair use for the understanding of fair use for the reproduction, distribution, display, reproduction, distribution, display, and performance of materials in the and performance of materials in the context of creating and using an context of creating and using an electronic reserve system:electronic reserve system:

The guidelines address only those The guidelines address only those materials protected by copyright materials protected by copyright

Scope of MaterialScope of Material

Electronic reserve systems may include Electronic reserve systems may include short items (such as an article from a short items (such as an article from a journal, a chapter from a book or conference journal, a chapter from a book or conference proceedings, or a poem from a collected proceedings, or a poem from a collected work) or excerpts from longer items. work) or excerpts from longer items.

Electronic reserve systems should not Electronic reserve systems should not include any material unless the instructor, include any material unless the instructor, the library, or another unit of the the library, or another unit of the educational institution possesses a lawfully educational institution possesses a lawfully obtained copy. obtained copy.

B. NOTICES AND B. NOTICES AND ATTRIBUTIONS ATTRIBUTIONS

If a notice of copyright appears on If a notice of copyright appears on the copy of a work that is included in the copy of a work that is included in an electronic reserve system, a an electronic reserve system, a similar notice should appear on the similar notice should appear on the electronic copy.electronic copy.

C. ACCESS AND USE C. ACCESS AND USE Electronic reserve systems should be structured Electronic reserve systems should be structured

to limit access to students registered in the to limit access to students registered in the course for which the items have been placed on course for which the items have been placed on reserve, and to instructors and staff responsible reserve, and to instructors and staff responsible for the course or the electronic system for the course or the electronic system

The appropriate methods for limiting access will The appropriate methods for limiting access will depend on available technology and may depend on available technology and may includeinclude

individual or class password controls, or limiting individual or class password controls, or limiting access to workstations that are ordinarily used access to workstations that are ordinarily used by only enrolled students or appropriate staff or by only enrolled students or appropriate staff or faculty. faculty.

D. STORAGE AND REUSE D. STORAGE AND REUSE Permission from the copyright holder is required if the item Permission from the copyright holder is required if the item

is to be reused in a subsequent academic term for the is to be reused in a subsequent academic term for the same course offered by the same instructor, or if the item is same course offered by the same instructor, or if the item is a standard assigned or optional reading for an individual a standard assigned or optional reading for an individual course taught in multiple sections by many instructors course taught in multiple sections by many instructors

Material may be retained in electronic form while Material may be retained in electronic form while permission is being sought or until the next academic term permission is being sought or until the next academic term in which the material might be used, but in no event for in which the material might be used, but in no event for more than three calendar years, including the year in which more than three calendar years, including the year in which the materials are last used. the materials are last used.

Short-term access to materials included on electronic Short-term access to materials included on electronic reserve systems in previous academic terms may be reserve systems in previous academic terms may be provided to students who have not completed the course. provided to students who have not completed the course.

VideotapesVideotapes

The Copyright Revision Act of 1976 clearly The Copyright Revision Act of 1976 clearly protects audiovisual works such as films protects audiovisual works such as films and videotapes. The rights of copyright and videotapes. The rights of copyright include the rights of reproduction, include the rights of reproduction, adaptation, distribution, public performance adaptation, distribution, public performance and display. All of these rights are subject, and display. All of these rights are subject, however, to "fair use," depending on the however, to "fair use," depending on the purpose of the use, the nature of the work, purpose of the use, the nature of the work, the amount of the work used and the effect the amount of the work used and the effect the use has on the market for the the use has on the market for the copyrighted work. copyrighted work.

Use of Video in classroomUse of Video in classroom In-classroom performance of a copyrighted In-classroom performance of a copyrighted

videotape is permissible under the following videotape is permissible under the following conditions: 1. The performance must be by conditions: 1. The performance must be by instructors (including guest lecturers) or by pupils; instructors (including guest lecturers) or by pupils; and 2. the performance is in connection with face-and 2. the performance is in connection with face-to-face teaching activities; and 3. the entire to-face teaching activities; and 3. the entire audience is involved in the teaching activity; and 4. audience is involved in the teaching activity; and 4. the entire audience is in the same room or same the entire audience is in the same room or same general area; 5. the teaching activities are general area; 5. the teaching activities are conducted by a non-profit education institution; conducted by a non-profit education institution; and 6. the performance takes place in a classroom and 6. the performance takes place in a classroom or similar place devoted to instruction, such as a or similar place devoted to instruction, such as a school library, gym, auditorium or workshop; 7. the school library, gym, auditorium or workshop; 7. the videotape is lawfully made; the person responsible videotape is lawfully made; the person responsible had no reason to believe that the videotape was had no reason to believe that the videotape was unlawfully made. unlawfully made.

Duplication of VideotapesDuplication of Videotapes Libraries can not make copies of videos or DVDs Libraries can not make copies of videos or DVDs

to create noncirculating archival copies except to create noncirculating archival copies except under limited circumstances. One can make under limited circumstances. One can make copies of DVDs if fair use applies (Section 107), a copies of DVDs if fair use applies (Section 107), a replacement or preservation exemption applies replacement or preservation exemption applies (Section 108), or a teaching exemption applies (Section 108), or a teaching exemption applies (generally Section 110). (generally Section 110).

The Technology, Education and Copyright The Technology, Education and Copyright Harmonazation (TEACH) Act, an amendment to Harmonazation (TEACH) Act, an amendment to the copyright law only allows teachers to make the copyright law only allows teachers to make backup copies for teaching purposes.backup copies for teaching purposes.

If the digital format is the only one available (no If the digital format is the only one available (no video) and it is protected by copy controls, it is video) and it is protected by copy controls, it is illegal to get around those (even if you have the illegal to get around those (even if you have the right by fair use rules), so you cannot copy it. right by fair use rules), so you cannot copy it.

COMPUTER SOFTWARECOMPUTER SOFTWARE Purchase Conditions Generally Purchase Conditions Generally

------------------------------- Most computer software ------------------------------- Most computer software purports to be licensed rather than sold. purports to be licensed rather than sold. Frequently the package contains legends similar Frequently the package contains legends similar to the following:to the following:

“ “Read this agreement carefully. Use of this Read this agreement carefully. Use of this product constitutes your acceptance of the terms product constitutes your acceptance of the terms and conditions of this agreement.”and conditions of this agreement.”

Following such legends are the terms and Following such legends are the terms and conditions of the license agreement. conditions of the license agreement.

Many explicitly prohibit rental or lending; some limit Many explicitly prohibit rental or lending; some limit the program to use on one identified computer or the program to use on one identified computer or to one user's personal use. to one user's personal use.

Software - Archival CopiesSoftware - Archival Copies Libraries may lawfully make one archival copy of a Libraries may lawfully make one archival copy of a

copyrighted program under the following copyrighted program under the following conditions: a) one copy is made; b) the archival conditions: a) one copy is made; b) the archival copy is stored; c) if possession of the original copy is stored; c) if possession of the original ceases to be lawful, the archival copy must be ceases to be lawful, the archival copy must be destroyed or transferred along with the original destroyed or transferred along with the original program; d) copyright notice should appear on the program; d) copyright notice should appear on the copy. 2. The original may be kept for archival copy. 2. The original may be kept for archival purposes and the "archival copy" circulated. Only purposes and the "archival copy" circulated. Only one copy -- either the original or the archival -- may one copy -- either the original or the archival -- may be used or circulated at any given time. 3. If the be used or circulated at any given time. 3. If the circulating copy is destroyed, another "archival" circulating copy is destroyed, another "archival" copy may be made. 4. If the circulating copy is copy may be made. 4. If the circulating copy is stolen, the copyright owner should be consulted stolen, the copyright owner should be consulted before circulating or using the "archival" copy. before circulating or using the "archival" copy.

ExamplesExamples 1. A high school English teacher wants to show a videotape of the film "The Grapes of 1. A high school English teacher wants to show a videotape of the film "The Grapes of

Wrath" to her class. The videotape has a label which says "Home Use Only." As long as Wrath" to her class. The videotape has a label which says "Home Use Only." As long as the \S\ 110(1) requirements for the classroom exception apply, the class may watch the the \S\ 110(1) requirements for the classroom exception apply, the class may watch the videotape. videotape.

6. May an elementary school teacher show a videotape of the film "Star Wars" to his or 6. May an elementary school teacher show a videotape of the film "Star Wars" to his or her class on the last day of school? Because a classroom is a place where a substantial her class on the last day of school? Because a classroom is a place where a substantial number of persons outside of a family and friends are gathered, performances in them number of persons outside of a family and friends are gathered, performances in them are public. Assuming that this performance is for entertainment rather than with are public. Assuming that this performance is for entertainment rather than with systematic instruction, the classroom exception would not apply. It is unlikely that such systematic instruction, the classroom exception would not apply. It is unlikely that such a public performance would be a fair use. a public performance would be a fair use.

13. A math teacher uses one diskette to load a computer program into several terminals 13. A math teacher uses one diskette to load a computer program into several terminals for use by students. This use would violate copyright laws as well as most license for use by students. This use would violate copyright laws as well as most license agreements. It violates \S\ 117 of the Copyright Act, which authorizes the making of one agreements. It violates \S\ 117 of the Copyright Act, which authorizes the making of one copy if necessary in order to use the program, because it creates copies of the program copy if necessary in order to use the program, because it creates copies of the program in several terminals. Further, many license agreements prohibit use of the software on in several terminals. Further, many license agreements prohibit use of the software on more than one terminal at a time, as well as prohibiting networking or any system which more than one terminal at a time, as well as prohibiting networking or any system which enables more than one person to use the software at a time. enables more than one person to use the software at a time.

18. When the teacher retrieves his or her copy of the program may the library retain the 18. When the teacher retrieves his or her copy of the program may the library retain the archival copy? No. When possession of the original ceases, the archival copy must be archival copy? No. When possession of the original ceases, the archival copy must be transferred with the original or destroyed. If it is returned with the original, the teacher transferred with the original or destroyed. If it is returned with the original, the teacher would not be permitted to make additional copiesQhe or she would have an original and would not be permitted to make additional copiesQhe or she would have an original and the archival copy. the archival copy.

In-library and In-classroom Use In-library and In-classroom Use of Softwareof Software

1. License restrictions, if any, should be observed. 1. License restrictions, if any, should be observed. 2. If only one program is owned under license, 2. If only one program is owned under license, ordinarily it may only be used on one machine at ordinarily it may only be used on one machine at a time. 3. Most licenses do not permit a single a time. 3. Most licenses do not permit a single program to be loaded into a computer which can program to be loaded into a computer which can be accessed by several different terminals or into be accessed by several different terminals or into several computers for simultaneous use. 4. If the several computers for simultaneous use. 4. If the machine is capable of being used by a patron to machine is capable of being used by a patron to make a copy of a program, a warning should be make a copy of a program, a warning should be posted on the machine, such as: MANY posted on the machine, such as: MANY COMPUTER PROGRAMS ARE PROTECTED BY COMPUTER PROGRAMS ARE PROTECTED BY COPYRIGHT. 17 U.S.C. \S\ 101. UNAUTHORIZED COPYRIGHT. 17 U.S.C. \S\ 101. UNAUTHORIZED COPYING MAY BE PROHIBITED BY LAW. COPYING MAY BE PROHIBITED BY LAW.

Guidelines for Students or Guidelines for Students or Instructors Preparing Instructors Preparing Multimedia Works Multimedia Works

In general, students and instructors may In general, students and instructors may create multimedia works for face-to-face create multimedia works for face-to-face instruction, directed self-study or for remote instruction, directed self-study or for remote instruction provided that the multimedia instruction provided that the multimedia works are used only for educational works are used only for educational purposes in systematic learning activities at purposes in systematic learning activities at nonprofit educational institutions. nonprofit educational institutions. Instructors may use their multimedia works Instructors may use their multimedia works for teaching courses for up to two years for teaching courses for up to two years after the first use.after the first use.

Images, text, and other copyrighted Images, text, and other copyrighted material is being used.material is being used.

Works CitedWorks Cited

Stanford University Libraries,2005Stanford University Libraries,2005 ““Copyright Crash Course,” The Copyright Crash Course,” The

University of Texas, 2001University of Texas, 2001 ALA, American Libraries, ALA, American Libraries,

February 1986. February 1986. U.S. Copyright Office , Library of U.S. Copyright Office , Library of

Congress, August 2006.Congress, August 2006.

Educational Fair Use in Copyright Compiled by Ellen Bell, Librarian Amador Valley High School.

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Transcript of Educational Fair Use in Copyright Compiled by Ellen Bell, Librarian Amador Valley High School.