Copyright & Fair Use

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Information about Copyright & Fair Use

Published on April 3, 2009

Author: jbacon



Presentation given at Johnson County Community College as part of Professional Development Days workshop.

Copyright Issues & Digital Media in the Classroom Professional Development Days January 2009 Jonathan Bacon Julie Haas Mark Daganaar

Plan of Action In this session we’ll discuss several scenarios related to the instructional use of copyright materials in both face-to-face and online instruction. We’ll discuss epacks and supplemental materials from textbook publishers, the use of copyright works in student projects, posting copyright works on the web and in a learning management system (like ANGEL or Blackboard), use of digital databases and numerous other issues related to fair use and the TEACH Act.

Disclaimer • We are not a lawyers, have never been, and have no intention of becoming lawyers. • This is for information and entertainment purposes only. The answers here are not intended as and are not lawyer-client advice. • Take our advice, our opinions and our chili with a grain of salt. • This information represents our research and our limited understanding of copyright law.

©opyright Balances Competing Interests

Definition of Copyright • Based on the US Constitution Article 1, Section 8: Congress shall have the power… To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. • “Copyright is a form of protection provided by the laws of the United States (title 17, U. S. Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works.” ~ U.S. Copyright Office

Copyright Holder Rights ~ § 106 • To Reproduce Works • To Prepare Derivative Works (Adaption) • To Distribute Works  Sale, transfer of ownership, rental, leasing, lending • To Perform Work Publically  Literary, musical, dramatic, dance, pantomimes, movies, audiovisual works • To Display Work Publically  Literary, musical, dramatic, dance, mimes, and pictorial, graphic or sculptural works including individual images from movies & audiovisual works • Public Performance of Digital Sound Recordings

Copyright Basics • Considered Personal Property (can be sold, transferred, inherited) • Original Works of Authorship § 102(a) • Automatic Protection when Work Created • Doesn’t Cover Facts or Ideas • Must Be in Fixed Form § 102(a)  “Tangible Medium of Expression” • Registration (Not required after March 1, 1989)

Authorship vs. Ownership • Owning Object ≠ Copyright • Creator of Work Considered Author • Ownership May Have Transferred • Work for Hire § 101

Protectable Works ~ § 102(a) • Literary Works • Musical Works • Dramatic Works • Pantomimes & Choreographic Works • Pictorial, Graphic & Sculptural Works • Motion Pictures & Other Audiovisual Works • Sound Recordings • Architectural Works

Public Domain • Copyright Expired*  • Dedicated by Author to Public or Copyright Abandoned by Author (Computer Freeware) • Publication in the US before 1923 • Publication in the US before March 1, 1989 without copyright notice • Publication in the US before 1964 without copyright renewal • Federal Government Produced (§ 105)

Ways to Use Works & Comply with Copyright Laws • Is Work Protected by Copyright? • Qualify as “Fair Use?” • Qualify under TEACH Act? • If Not, Seek Permission from Copyright Holder.

The Balancing Act • Exclusive Rights • Free Exchange of of Author Ideas to Benefit Society

Fair Use Is Not a Right, It’s an Excuse

Fair Use Factors ~ § 107 aka Four Factor Analysis • Purpose and Character of Use  Commercial vs. Not-for-profit • Nature of Work • Amount & Substantiality  Portion used in relation to whole • Effect on Potential Market

Fair Use: The Tipping Point Fair Use Not Fair Use

T.E.A.C.H. Act ~ Title 17, §110(2) Provides limitations on author rights only if: • Source material is a legally obtained copy • Access to source materials does not circumvent a digital rights management system. • Defines Fair Use (§ 110) to cover the Digital Classroom; e.g., Provides for Transmission of DL Materials and Media § 110(2) • Traditional notions of fair use do not apply in the digital classroom

What TEACH Act Does (1) • Excludes Materials Produced/Marketed for Online or Digital Classroom Use • Digital Copies Legally Obtained, May Not Circumvent DRMS • Accredited Nonprofit Educational Institutions or Govt. Bodies Only • Directly Related to Subject Being Taught • Under Supervision of Instructor • Part of Systematic Mediated Instructional Activities • Equivalent to Amount Used in a Live Classroom

What TEACH Act Does (2) • Access Limited to Enrolled Students • Technological Measures Employed to Prevent Retention or Redistribution of Copyright Works • Precondition: Institutional Policies on Copyright Usage • Precondition: Focus on Education • Precondition: Notification of Copyright Ownership Rights to Learners

The materials on this course web site are only for the use of students enrolled in this course for purposes associated with this course and may not be retained or further disseminated.

“The materials on this course web site are only for the use of students enrolled in this course for purposes associated with this course and may not be retained or further disseminated. Further, Johnson County Community College (JCCC) requires its faculty, staff, and students to comply with the United States Copyright Act. Faculty, students and staff shall download, possess, or store only lawfully acquired copyrighted materials and use, adapt, distribute, or perform them only in ways consistent with the Copyright act, associated case law, the Fair Use principle, and the intellectual property rights of others (read JCCC’s Copyright Policy and Guidelines at copyright_toc).”

JCCC Copyright Policies & Procedures JCCC has published copyright information and policies on the web. The important links are: • /desk_ref_toc/copyright_toc/Index_Copyright • and k_ref_toc/copyright_toc

Scenario: Film Showing A faculty member would like to show a film in its entirety to a student film club. The showing would be on college property and supports a college initiative (Diversity). The company that distributes the film indicated the faculty member would need to license the showing for $250. The JCCC library owns the film and the faculty member assumed he could legally show the film in any of his classes or to the club he sponsors. The audience is expected to be around 35 people.

Scenario: Film Showing – Follow-up Can a faculty member legally show any film in the classroom under fair use? What if the DVD/Video is owned by the faculty member? Can’t it be used in whatever fashion she wants?

Scenario: Textbook Ancillary Materials Can the free ancillary materials provided by textbook publishers be used in class whether or not the accompanying textbook is adopted by the instructor?

Scenario: Textbook Ancillary Materials – Follow-up What if a faculty member receives an instructor desk copy with ancillary materials—textbook in digital format, study guide as both hard copy and in digital format, DVD with sample video’s related to cases in the textbook, and CD that has sample tests, practice worksheets, and other case files? After review the faculty member finds these items quite useful as study tools for students to access as part of the classroom instruction and assignments, and therefore would like to “load” elements into Blackboard or ANGEL for student access. Wouldn’t fair use enable the instructor to use portions of the materials without infringing on Copyright?

Scenario: Textbook Ancillary Materials – Follow-up Part 2 A faculty member receives a PowerPoint slideshow distributed by book publisher. She decides to delete all of publisher logos and references and then modify the PowerPoint slideshow extensively but retain most of the images and text. Is this legal?

Scenario: Faculty Work and Work-for- Hire A faculty member teaches game programming. In the process of creating course content, he develops code that he would like to share on the internet via The instructor asks the question: Who owns the code? The code was developed during office hours for use in the classroom. Does JCCC own the code? If so who actually has permission to assign the license to it? The instructor would like to use the MIT open source license (see license.php) but wants to be sure he has the legal right to do so.

The legal title to all materials and inventions as defined in Section 2 above shall be held by Johnson County Community College when developed through college support or when commissioned, provided, however, materials and inventions produced under grants from the federal government or other agency, public or private, shall be subject to the conditions of the contract or grant with respect to ownership, distribution and use, and other residual rights, including net proceeds; and provided further, ownership to written materials generated as a result of individual initiative, and not as a specific college assignment, and where only incidental use of college facilities or resources are employed, should normally reside with the author, subject to the provisions of Section 4.e.

Additional Issues: Part 1 • Can I Include Music from a Commercial CD I Own in a PowerPoint Slideshow? • My Son Plays in a Band, Can I Use His Music in a PowerPoint Slideshow? • Is It Legal to Use a Music Bed Created in GarageBand for a Podcast? • I’m Using Artwork from the ArtStor Database Through the Library, Can I Use Those Images Online?

Additional Issues: Part 2 • Can I Legally Use Clip Art From Microsoft Office in an Instructional Project? • What If the Copyright Owner Cannot be Found? • Can I Duplicate One Chapter of a Textbook for Students Since That’s All I Use? What About One Article? • Can I Use Cartoons in Classroom Lectures or Online Lectures? • Can I Use Images I Find on the Web?

Resources (1) • U.S. Copyright Office and Copyright Law of the United States, see • NewsNet, see • Congressional Research Services, Copyright Exemptions for Distance Education: 17 U.S.C. § 110(2), the Technology, Education, and Copyright Harmonization Act of 2002, see 0207/2893/RL33516_20060706.pdf?sequence=1

Resources (2) • North Carolina State University Fair Use Worksheet, see rksheet.pdf • Consortium of College and University Media Centers, “Educational Multimedia Fair Use Guidelines,” see matters/fair-use-guideline • Distance Learning and Copyright: A Guide to Legal Issues by Steven A. Armatas (see

Resources (3) • Copyright Term & the Public Domain in the United States, see • Fair Use Analysis Tool, University of Minnesota, see • History of Copyright, see • Fundamentals of Fair Use and Copyright, California State University, Office of General Counsel, see

Resources (4) • The TEACH Toolkit, see hecklist.html and xpanded_checklist.html • Fair Use Ain’t What You Think It Is: Copyright and Fair Use in the Digital Classroom by Mark J. Davis, Esq. B.A., J.D. , see Davis.pdf • BuzzGig: The Business of Creativity Blog, see

Code of Best Practices in Fair Use (5 Categories) 1. Classroom Teaching with Copyrighted Materials 2. Copyrighted Material within the Curriculum 3. Sharing Teaching Materials 4. Student Work 5. Sharing Student Work cations/code_for_media_literacy_education/

Fair Use Guidelines for Educational Multimedia 1996 (1) • Joint Committee of Publishers, Artist Agents, Higher Ed. Reps. Developed • Covers Not-for-profit Educational Uses • Lawfully Acquired Copyright Works • For Education Purposes in Systematic Learning Activities  F2F Instruction  Directed Self-study  Over Institutions Secure Electronic Network in Real- time

Fair Use Guidelines for Educational Multimedia 1996 (2) • Multimedia Limitations  Time (2 years max.)  Portion (10% or 3 minutes video; 10% or 1000 words; 10% < 30 seconds music; >5 images or photos per artist/photographer)  Copying & Distribution  Credit Sources  Alterations in Original Only in Support of Educational Objectives

Be Legal, Be Safe, Happy Semester!

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