Copyright and Fair Use
From medieval Europe through the last two centuries of American history, authors, creators and publishers have sought a legal mechanism to control their works and, by extension, protect their livelihoods. This legal mechanism is called "copyright."

It is a property right. An "intellectual" property right....

Copyright is defined as the exclusive right of a creator to reproduce, prepare derivative works, distribute, perform, display, sell, lend or rent their creations.

What does copyright protect?
Forms of Expression!
Copyright does not protect:
Ideas


The Copyright Act grants five rights to a copyright owner:

1. The right to reproduce the copyrighted work.
2. The right to prepare derivative works based upon the original(s).
3. The right to distribute copies of the work.
4. The right to perform the work publicly.
5. The right to display the work publicly.


 How are we able to use copyrighted work as students and educators?

Fair Use.

The concept of "fair use" evolved over the years as courts tried to balance the rights of copyright holders with society's legitimate interest in making copies in certain, limited circumstances. "Fair Use" has a core belief that copying should be allowed for purposes of criticism, news reporting, teaching and scholarly research.

However, Fair Use is controversial. Consider the following quote from a copyright authority in education, Dr. Esther Sinofsky:

"Fair use is a contradiction of the basic concept of copyright: Copyright grants an author an exclusive monopoly on a particular work; fair use provides that someone other than the author can have certain rights regarding the work... without payment to... the copyright owner."


Bruce A. Lehman, the Assistant Secretary of Commerce and Commissioner of Patents and Trademarks, says Fair Use is an "affirmative defense" against an accusation of copyright infringement:

"When the fair use doctrine applies to a specific use of a work, the person making fair use of the work does not need to seek permission from the copyright owner or to compensate the copyrightowner for the use of the work."

Consider the following excerpt from the 1976 House report:

"...there is no disposition to freeze the (fair use) doctrine in the statute, especially during a period of rapid technological change."

Prophetic words, given their timing in 1976, when the explosion of digital technology was still at least a decade away....

But while congress refused to lock a definition of the fair use doctrine in law, it did provide certain basic criteria to determine what use was "fair." The 1976 Copyright Act set forth four provisions by which copyrighted materials could be used in non-profit educational settings...


The four "fair use" criteria from the 1976 Copyright Act are:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for non profit 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.
4. The effect of the use upon the potential market for or value of the copyrighted work.


Let's examine each one of these criteria, one by one, for an explanation.

The first criterion: Purpose and Character

This first factor asks primarily whether the work is of a commercial nature or whether it is intended for utilization in an educational setting.

And it seeks to know whether it is an original form of copyrightable expression, or whether it is a copy of other(s)' work.
If you work at a not-for-profit educational institution,then you normally need not worry about this criterion.

The second criterion: Nature of Copyrighted Work

This factor looks to see whether the work was created for the purposes of criticism, comment, news reporting, teaching, scholarship, or research. Pretty straightforward. It should be noted that this list is not restrictive, but the burden of showing fair use is easier if the reason for the work's creation is consistent with the aforementioned purposes.
The third criterion: Amount & Substantiality

This one asks how much of the work did you use, or copy? For small poems, perhaps the entire work may be fair to copy. For larger works it may be fair use to copy only a small amount. And if what you used was the "heart" or "creative essence" of the work, it may infringe. A good rule of thumb: Use no more than necessary."
The fourth criterion: Effect Upon Potential Market

Of all the criteria, this one is the one upon which the courts place most weight it seems. Did the copying or use deprive the copyright holder of a sale? This is a hard call to make. It requires a gut check as well as knowledge of guidelines. Clearly, non-profit educational institutions have broader leeway to make necessary copies for instruction than for-profit entities....
The following is a good analysis on the relationship between fair use and market value:

"Fair use is almost always a short excerpt and almost always attributed. (One should not use more of the work than is necessary to make the commentary.) It should not harm the commercial value of the work -- in the sense of people no longer needing to buy it (which is another reason why reproduction of the entire work is generally forbidden.)"

Summary

While congress intended the 1976 Copyright Act to protect the legitimate rights of intellectual property owners, educators at non-profit educational institutions may use "small" portions of copyrighted works for systematic instruction.

Whether the use is "Fair Use" or "Infringement" is intended for the courts to decide. However, educators need not fear a lawsuit if they use the minimum amount sufficient and necessary for teaching. A thorough familiarity with various guidelines will aid in making what is an individual judgment call, consistent with whatever copyright policies may exist at the institution.


Multimedia

Now for information about your fair use privileges in using copyrighted works for multimedia or hypermedia projects in the non-profit educational setting.

An operational definition for "Multimedia"

Also known as "hypermedia," multimedia involves the integration of text, graphics, audio and/or video into a computer-based environment. For our purposes in this discussion, the objective for the program is educational, not entertainment.

It is the ease with which a multimedia author can incorporate the copyrighted works of others that makes this relatively new and powerful educational tool, as well as the web, a vexing issue for both educators and publishers.

Seen from one perspective, the inclusion of others' works into a multimedia program violates the copyright holder's fundamental right to creating "derivative" works.

But from another perspective, an educator is merely exercising fair use privileges to utilize small portions of relevant works to fulfill a legitimate teaching objective.

It is a tough call to make.

And up until the fall of 1996, it seemed that the only arena suitable for making that call was the courts.

But in September, 1996, a set of guidelines was developed with the participation of a broad cross section of educators, attorneys, publishers, librarians and other interested parties.

The "Fair Use Guidelines for Educational Multimedia", as with all guidelines dealing with copyright, are not law.

But they do set standards deemed acceptable by the largest cross section possible of affected constituencies: authors, publishers, educators, librarians, attorneys and others. The Fair Use Guidelines for Educational Multimedia provide for the following, as a rule of thumb.

    - Students may incorporate others' works into their multimedia creations and perform and display them for academic assignments.
    - Faculty may incorporate others' works into their multimedia creations to produce curriculum materials.
    - Faculty may provide for multimedia products using copyrighted works to be accessible to students at a distance (distance learning), provided that only those students may access the material.
    - Faculty may demonstrate their multimedia creations at professional symposia and retain same in their own portfolios.
The Fair Use Guidelines for Educational Multimedia provide for specific limits on the amount of copyrighted works that may be used.
    - For motion media (e.g., video clips) - up to 10% or 3 minutes, whichever is less.
    - For text - up to 10% or 1000 words, whichever less.
    - For poems - up to 250 words.
    - Three poem limit per poet.
    - Five poem limit by different poets from an anthology.
    - For music - up to 10% or 30 seconds, whichever is less.
    - For photos and images - no more than 5 images per artist/photographer.
    - 10% or 15 images, whichever is less, from a collective work.
    - Database information - up to 10% or 2,500 fields or cell entries, whichever is less.

Furthermore, faculty may retain multimedia products incorporating the copyrighted works of others for a period of two years for educational use.

After that, permission must be sought.

While not perfect, the Fair Use Guidelines for Educational Multimedia make it possible for educators and students to proceed with confidence to use small portions of copyrighted works in the creation of multimedia and hypermedia products.

The key, as with all practices of fair use, is to use the smallest portion necessary of an educational work to achieve your objective.

P.S. . . .The student as a copyright creator
As a student, YOU own any material you create as part of your schoolwork, not your school. This means that if your school wants to use your materials in any publications or on web sites they need to get your permission. Obviously you can choose to use and publish your own material in any publications or web sites you make.

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