ARE YOU OBEYING COPYRIGHT LAW?
The summaries that follow are meant to provide you with a broad overview and help direct you to the documents that should be studied in greater depth. Title 17, United States Code The U.S. Constitution (in Article 1, Section 8) grants the federal government the power to set copyright law. The current law, the Copyright Act of 1976, is contained in Title 17 of the U.S. Code. Here are some sections of the copyright Act/Title 17 that are the particular interest to educators grappling with copyright issues: Section 102 defines copyrightable materials at “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated.” It lists some types of works that qualify (literary, musical, pictorial, audiovisual, and so on) but makes it clear that these are just examples. It also lists some examples of things that can not be copyrighted (including ideas, procedures, and concepts). Section 106 outlines the five basic rights granted to copyright owners. They are:
1) the right to reproduce (make copies);
2) the right to create “derivative works” (e.g., adaptations, altered versions);
3) the right to sell or distribute to the public;
4) and 5) the right to perform or display the work in public.
This section also states that these rights belong exclusively to the copyright owner except when they are curtailed by the limitations and exemptions outlined in sections 107 through 118.
Section 107 explains one of the most significant limitations on the exclusive rights of the copyright owner — that of fair use. Fair use is said to apply in such cases as “criticism, comment, news reporting, teaching “including multiple copies for classroom use), scholarship, or research.” This section states that four factors are to be considered in determining whether a particular use is fair:
1) the purpose and character of the use (e.g., whether it’s commercial or for nonprofit educational purposes);
2) the nature of the copyrighted work (e.g., whether it’s factual — with reproduction of non-fiction more likely to qualify as fair use than reproduction of an original work of fiction);
3) the amount and substantiality of the part 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.
deals with the right of certain libraries and archives (those that are open to the general public or to non-affiliated scholars for research purposes) to make single copies for preservation purposes (e.g., when they are damaged and a replacements not available at a fair price) or for users who request them for “private study, scholarship, or research.” The many rights granted in this section are balanced by some clear limits (including the requirement that copyright notices be used; that the library should gain no commercial advantage from the duplication; and that copying must be done in a “systematic” fashion that substitutes for purchase).
focuses on the circumstances under which works may be performed or displayed publicly even if they are not licensed for this purpose (e.g., a videotape purchased with a FOR HOME USE ONLY notice). For educators, one of the most significant portions of this section is clause (1), often referred to as the “face-to-face teaching exemption.” This grants teachers or students in a nonprofit educational institution the right to perform or display legally purchased works in the course of instruction in a classroom setting. Clause (4) is also relevant to schools because it addresses the circumstances under which non-profit public performances (school assemblies, for example) of “non dramatic literary or musical work” are permissible. In addition, clauses (2) and (8) outline some exemptions for the transmission (via cable, closed-circuit TV, etc.) of such work to individuals whose disabilities prevent them from attending school or viewing or hearing the work without assistance.
Interpretation and Guidelines
To help clarify the confusion about what constitutes fair use, Congress appointed several committees to arrive at guidelines for schools. While these guidelines have not been incorporated into statutory law, they are widely accepted as minimum standards for educators to follow in order to “play it safe.” Here’s a summary: Guidelines for Copying Books and Periodicals: Drawn up by a committee of authors, publishers, and educators, these guidelines state that the creation of single copies of a variety of works articles, short stories, poems, illustrations, etc. by a teacher to prepare for lessons or engage in scholarly research constitutes fair use. They also outline the conditions under which multiple copies of printed work might be made for an entire class, offering three general tests (with specific guidelines for each one) to determine whether the use is really fair:
1) brevity (some examples of acceptable lengths: a complete poem of less than 250 words; an excerpt that is less than 1,000 words in length or less than 10 percent of the whole; one illustration per book or periodical issue);
2) spontaneity (it’s most likely to be fair use if the teacher had too little time to request permission to copy);
3) cumulative effect (examples of ways of limiting this: photocopies are to be used for one course only; no more than nine instances of multiple copying are permitted in one term).
Other restrictions meant to limit damage to the copyright owner include these: Copyright notice should be included on all photocopies: duplicating should not substitute for purchasing anthologies; “consumables” such as workbooks or test booklets should not be copied: and copying should be initiated by the teacher using the materials not by a higher authority in the district.