Fair Use in the Classroom

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Fair Use in the Classroom

Disclaimer

This document contains general information obtained from a variety of print and online resources. It was not prepared by an attorney or legal expert. It is not intended to substitute for legal advice. If you have specific questions, you should consult an attorney.

This is not, by any means, a complete or comprehensive document. There are many issues for which I was unable to locate information. There have been some recent changes to the law. Many things still need to be interpreted; new guidelines still need to be drawn up. I will update this document as soon as I have more information.

End of Disclaimer

General Copyright Information
What is Protected - Types of Materials
How Long are Materials Protected?
Fair Use
Fair Use - Print Materials
Classroom Performance and Display
Music
Multimedia
Distance Education
Links to Copyright Sources

General Copyright Information

Title 17 of the U.S. Code covers copyright law. The contents of Title 17 reflect the Copyright Act of 1976. It has been in effect since January 1, 1978. It allowed for the protection of materials for the life of the author plus 50 years.

Other legislative acts that affect when a work passes into the public domain include:

Berne Convention Implementation Act of 1988
- This act states that material need not include copyright notice
Copyright Renewal Act of 1992
- This act provides for the automatic renewal of copyright for the second term for works published between January 1, 1964 and December 31, 1977
Bono Copyright Extension Act of 1998
- This act adds 20 years onto the second term of registration for works published prior to 1978 and to the 50 years of protection after the death of the author specified for a work created after 1978

What is Protected - Types of Materials

Original Text - fiction, nonfiction, magazine, newspaper and journal articles, poetry
Music - lyrics, scores
Sound recordings
Plays - scripts, audio or visual recordings of plays
Films
Choreographed dances, performances
Art - drawings, paintings, sculpture, prints

What criteria must works need in order to be protected?

They must have some originality
They must be fixed in a tangible expression
- written down in the case of poetry, song lyrics, novels
- written down in notation in the case of dances and musical scores
- recorded in a sound or visual medium in the case of films, musical compositions, radio broadcasts, etc
- created in the case of web pages and works of art

A novel is protected from the moment it is written, not from the moment it is published. Song lyrics are protected from the moment they are written down on paper, not from the moment the songs are recorded. Works do not need to be published nor do they need to be registered.

Inclusion of the copyright notice is not required but it is recommended. It is required if you should ever be involved in an infringement suit and you wish to collect statutory damages and attorney's fees.

What is not protected?

Anything that is not fixed in a tangible expression as explained above
Standard signs such as stop signs
Slogans or names
- Slogans or names can be protected by trademark law
Standard works such as calendars
- Photos and nonstandard text included with standard items will be protected.
  - Example: photographs of tornados in a weather calendar; photographs and recipes included with a food calendar will be protected
Facts and ideas are not copyrightable.

How long are materials protected?

Works published before 1923 are in the public domain
Works published between 1923 and 1963 are still protected IF they:
- Were published with copyright notice
- Were renewed in the 28th year of first-term protection
- If they were renewed, the term of renewal would last for 67 years, for a total of 95 years from the date of publication.
Works published between 1964 and 1977 are still protected:
- If they were published with copyright notice. The first term of protection would have lasted for 28 years; the second term was automatically renewed for 47 years. The Copyright Act of 1992 automatically added 20 years for the second term. Anything published between 1964 and 1977 is automatically protected for a total of 95 years.
Anything created after January 1, 1978
- is protected automatically
  - no need for publication
  - no need for registration or re-registration.
- The term of protection lasts for the life of author plus 70 years.
- Works of corporate authorship are protected for the shorter of 95 years from the date of publication or 120 years from the date of creation.
Unpublished works created before January 1, 1978
- Protected since January 1, 1978
- Term is the greater of life of author plus 70 years or December 31, 2002
- Perpetual rights of authors and heirs eliminated for unpublished works
Works created before January 1, 1978 but published prior to December 31, 2002
- Protected since January 1, 1978
- Term of protection is the greater of life of author plus 70 years or December 31, 2047

What is in the public domain?

Works published before 1923
Works published between 1923 and 1949 IF the copyright holder did not renew registration
Works created by federal government employees in the course of their employment

What does it mean when we say a work is protected?

The copyright holder retains the following rights to his/her/their works:

The right to control the making copies (print or electronic)
- These include
  - photocopies
  - electronic copies
  - scanned images
  - recordings
The right to control the creation of derivative works
- An example would be the creation of T-shirts with a painting or photograph reproduced on the front
The right to control the distribution of copies
- This would include:
  - publishing a book
  - mailing or handing out flyers, brochures, etc
  - displaying a flyer or brochure
  - sending or forwarding email
The right to control the display of the work or reproductions of the work
The right to control the performing of the work
- This would include
  - performing a play
  - singing a song
  - playing a composition on the violin
  - having the radio turned on and tuned to a music channel, turned up so that bar patrons can hear it. Bars and other businesses that choose to play recorded music for the pleasure of customers are obligated to pay royalty fees to associations such as ASCAP and BMI.

What is Fair Use?

Fair Use is covered in Section 107 of Title 17, U.S. Code. It allows for a limited amount of copying by persons other than the rights holder. The guidelines are extremely vague and offer no information as to the amount allowed. Disputes are decided on a case by case basis.

Safe Harbor Guidelines for Copying Print Materials

The following guidelines are NOT part of the U.S. Code. They were developed in the mid-1970's at the request of Congress by a consortium of educators and copyright holder organizations. The guidelines were officially endorsed, and do carry weight in court.

Making Copies for Research and Class Preparation

One chapter from a book
One article from a magazine, newspaper or journal
One short story, essay or poem
One chart, diagram or drawing from a newspaper, magazine or book

Making Multiple Copies for Students

The amount allowed is governed by the following criteria:
- brevity
- spontaneity
- cumulative effect
Brevity
- Complete poem if less than 250 words
- Excerpt less than 250 words from longer poem
- Complete article, story, essay less than 2500 words
- Excerpt less than 1000 words or 10 percent of total from longer article, story, essay - whichever is less
- One chart, diagram, drawing from book or periodical
Spontaneity
- The copying must be spontaneous
- The copying must at the instance and instigation of the instructor
- Your department chair cannot suggest or hint that you make copies for students
- The moment of the decision to copy and the moment for effective use must be so that there would not be enough time to get permission
Cumulative Effect
- You may copy the item only for one course
- No more than one short poem, essay or two excerpts from the same author
- No more than three books from the same book or periodical during one class term
- No more than nine instances of copying for one course for one class term
Other Criteria
- Each copy must display a copyright notice
- Copying may not be used to create or replace anthologies, compilations or collective works
- There should be no copying from works intended to be consumable, like workbooks, exercises or standardized tests
- There should be o charge to student beyond cost of copying
- Copying shall never replace the purchase of materials
- Copying shall not be directed by a higher authority
- Copying shall not be repeated for the same material for the same class by the same instructor term after term

The source for the Fair Use Classroom Guidelines came from Circular 21 of the U.S. Copyright Office

Classroom Performance and Display

The guidelines are covered in the U.S. Code, Section 110.1 and 110.2 of Title 17

H.R. 2215 was signed into law on November 2, 2002. A section of this bill includes some very significant alterations of the above sections of Title 17.

The bill eliminates some of the distinctions between what face-to-face instructors may do and what instructors for distance education classes may do. There are many aspects now that need clarification by a professional attorney. In the case of allowable portions of audiovisuals, a consortium of educators and rights owners will need to come an agreement regarding such portions.

Examples of classroom performance include:

Reading a poem, short story, essay aloud in class
Showing a video to your students
Singing a song or playing a musical composition on the piano in class

The term display refers to the display of images.

Guidelines for Classroom Performance and Display

Instructors and students may perform or display works in the course of face-to-face teaching activities of a nonprofit educational institution

Instructors and students may read or perform nondramatic literary or musical works (such as songs, symphonies, poems, novels) or reasonable and limited portions of other works (i.e. dramatic works, including plays, scripts, musicals, operas), or display o a work in an amount comparable to that which is typically displayed in the course of a live classroom session, by or in the course of a transmission, PROVIDED THAT

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
The work is not produced or marketed primarily for distance education classes
Any audiovisual material used is lawfully obtained
- legally owned by the instructor or the institution
The performance or display is directly related and of material assistance to the teaching content of the transmission
The transmission is made only to students enrolled in the course
The transmitting body or institution 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 applies technological measures that reasonably prevent the 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 the unauthorized further dissemination of the work in accessible form by such recipients to others AND 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.

Images may be displayed in their entirety. The images must be lawfully acquired. An example of a lawfully acquired image would be a slide from a set purchased by the library or Humanities department.

For guidelines on the digitization of images for the live classroom, multimedia guidelines may apply. See Multimedia below.

*Lawfully obtained videocassettes and DVDs, I have been advised, may include lawfully rented videos. They do not include tapes from a copy one has made from a rented video.

Music

The following guidelines were developed and approved in April 1976 by the Music Publisher's Association of the United States, the National Music Publisher's Association, the Music Teachers Association, the Music Educators National Conference, the National Association of Schools of Music, and the Ad Hoc Committee on Copyright Law Revision.

Copying of sheet music for a performance may be done if:

it is an emergency and a performance is pending
replacement copies are purchased

Copying of sheet music for non-performance purposes may be done if

no more than 10 percent of the whole is copied
no single complete unit is copied

Recording of student performances

Single copy only
Purposes of evaluation or rehearsal only
May be retained by the instructor or institution

Copying sound recordings of copyrighted music

Single copies
Purposes of examination or exercises
May be retained by teacher or institution
Must display copyright notice from original
Must display appropriate citation

The following is prohibited:

Copying to create, replace or substitute for musical compilations or anthologies
Copying from works intended to be consumable
Copying for purpose of performance except in emergencies
Copying to avoid purchasing music
Copying without displaying the copyright notice on the copies

Multimedia

Educators can create and use a presentation incorporating protected elements without securing permission for:

face to face instruction
Directed self-study
Presentation to peers at conferences
Use no longer than two years
Components must be lawfully obtained
Sources must be credited
Copyright notice and information must be displayed on image or screen
Presentation must begin with notice of copyright restrictions

Transmitted presentations must be transmitted:

over a secure network
must be password-protected
If network not secure, remove 15 days after assignment
Include warning not to copy

Students can:

Create a multimedia presentation and use it in the course for which it was created
Include the presentation in portfolios and graduate school applications; present it at job interviews.
Components must be lawfully obtained
Sources must be credited
Copyright notice and information must be displayed on image or screen
Presentation must begin with notice of copyright restrictions

Multimedia Limits - Motion Picture

10 percent or 3 minutes, whichever is less, may be included

Multimedia Limits - Text

10 percent or 1000 words, whichever is less
Entire poem of less than 250 words
No more than three poems by one poet
No more than 5 poems from one anthology

Multimedia Limits - Music

10 percent or 30 seconds of music or lyrics
Any alteration must not change basic melody

Multimedia Limits - Images

Entire images
No more than 5 works by individual artist or photographer
No more than 10 percent or 15 works from one collection
Sources for images must be lawfully obtained
Images must display copyright notice, copyright ownership information and full source bibliographic citation on the screen or on the image itself
Images do not have to display the bibliographic information if the presentation is for the purpose of an examination

Distance Education

H.R. 2215 was signed into law by President Bush on November 2, 2002. The new law contains a section that amends Title 17, Section 110. It does away with the distinctions between the classroom and distance education classes in terms of materials that instructors may perform or display

See above for Classroom Performance and Display

Copies for Transmission

Copies that are necessary for transmission (i.e. cache copies that result from Webcasting) may be made if:

(A) such copies or phonorecords are retained and used solely by the body or institution that made them, and no further copies or phonorecords are reproduced from them, except as authorized under section 110(2); and

(B) such copies or phonorecords are used solely for transmissions authorized under section 110(2).

Digitization

(A) no digital version of the work is available to the institution; or

(B) the digital version of the work that is available to the institution is subject to technological protection measures that prevent its use for section 110(2).