Educational Fair Use in E-Materials Copyright The Second International Conference on e-learning and distance education Dr. Huda AL-chafes Dr Inas AL-khaldi

Educational Fair Use Educational Fair Use in E-Materials in E-Materials

CopyrightCopyrightThe Second International Conference on e-The Second International Conference on e-

learning and distance educationlearning and distance education Dr. Huda AL-chafes Dr. Huda AL-chafes

Dr Inas AL-khaldiDr Inas AL-khaldiSpecialist in IPSpecialist in IP

Qassim UniversityQassim University College of Sharia and Islamic StudiesCollege of Sharia and Islamic Studies

Feb 21-23 , 2011Feb 21-23 , 2011

AgendaAgenda

CopyrightCopyright Electronic Electronic Copyright Copyright Fair UseFair Use Copyright and Fair Use: The Best Copyright and Fair Use: The Best

Practices ModelPractices Model Educational Fair Use GuidelinesEducational Fair Use Guidelines

What is copyright?What is copyright?

Type of Intellectual Property which Type of Intellectual Property which protects creative effortprotects creative effort

Protects the expression of an idea – Protects the expression of an idea – not the idea itself – in a tangible formnot the idea itself – in a tangible form

Low threshold for creative input ie Low threshold for creative input ie phonebooks, compilations of data phonebooks, compilations of data attract protectionattract protection

Copyright Legislation Copyright Legislation

Berne Convention:1886 (literary & artistic Berne Convention:1886 (literary & artistic works)works)

Rome Convention:1961 (music, records Rome Convention:1961 (music, records etc)etc)

Rules on what can be protected, rights Rules on what can be protected, rights protected, exceptions and term of ©protected, exceptions and term of ©

New Technology meant both updated in New Technology meant both updated in 1996 1996

How do you Get Copyright How do you Get Copyright Protection?Protection?

Automatic – no need for formal Automatic – no need for formal registration. Exists when material registration. Exists when material createdcreated

© symbol alerts users but not © symbol alerts users but not requiredrequired

What Material Is Covered?What Material Is Covered?

Two Broad Categories:Two Broad Categories:Works: Works:

literary, dramatic, musical and literary, dramatic, musical and artistic works, includes maps, artistic works, includes maps, plans, computer programsplans, computer programs

Subject Matter Other Than Works:Subject Matter Other Than Works:Films, sound recordings, Films, sound recordings, broadcasts, published editions of broadcasts, published editions of works, performancesworks, performances

Complexity of CopyrightComplexity of Copyright

Copyright can be layered Copyright can be layered Music CDMusic CD

– Protected as a “sound recording”, but Protected as a “sound recording”, but also has musical scores, lyrics and also has musical scores, lyrics and performancesperformances

CD ROMCD ROM– could include, text, software, could include, text, software,

photographs, drawings and graphics, photographs, drawings and graphics, music, scripts, sound recordings, music, scripts, sound recordings, animation, film, video and performancesanimation, film, video and performances

What Rights Does Copyright What Rights Does Copyright Protect?Protect?

Bundle of exclusive economic rights Bundle of exclusive economic rights including:including:Reproduction and communicationReproduction and communicationPublicationPublicationPerformance in publicPerformance in publicAdaptationAdaptationCommercial rentalCommercial rental

Moral Rights (non-economic rights)Moral Rights (non-economic rights)

Using Someone Else’s Using Someone Else’s Copyright MaterialCopyright Material

You may be able to copy if: You may be able to copy if: Work is out of copyright or in Work is out of copyright or in

public domainpublic domainWithin Copyright Act Free Within Copyright Act Free

ExceptionsExceptionsUnder Statutory LicensesUnder Statutory LicensesPermission or licence from the Permission or licence from the

ownerowner

Electronic copyrightElectronic copyright

Everything in machine readable form is in Everything in machine readable form is in copyrightcopyrightIncludes digitised images, e mail, Web Includes digitised images, e mail, Web sites, e-journals, databases, pre-print sites, e-journals, databases, pre-print archives, etc.archives, etc.Just because it is available and free of Just because it is available and free of charge does not mean it’s not in copyright.charge does not mean it’s not in copyright.There is not necessarily an implied licence There is not necessarily an implied licence to copyto copy

Impact of TechnologyImpact of Technology

Copyright has always been a tension Copyright has always been a tension between owners and usersbetween owners and usersUp until recently, that tension was Up until recently, that tension was controlled by limitations in technology, controlled by limitations in technology, but no morebut no more

What is Happening Today?What is Happening Today?

P2P file sharingP2P file sharingTransfer of materials from one Transfer of materials from one medium to anothermedium to anotherWide-scale infringement of images, Wide-scale infringement of images, texttextWide-scale piracy of music, software, Wide-scale piracy of music, software, filmsfilms

E-Content Protection:E-Content Protection:The Triple LockThe Triple Lock

E-Content

1. Copyright/ Database Right

2. Contracts and Licensing

3. Technological Protection Systems

Copyright and Fair Use:Copyright and Fair Use:The Best Practices ModelThe Best Practices Model

Why Teachers Have More Why Teachers Have More FreedomFreedom to Work than to Work than They Think ?They Think ?

Two words:Two words:

Fair Fair UseUse

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.

Fair UseFair Use is the escape hatch is the escape hatch from private censorship in from private censorship in copyright copyright

Fair Use - LimitationsFair Use - Limitations

Three major limitations:Three major limitations: QuantityQuantity DurationDuration PurposePurpose

QUANTITYQUANTITY

– Unless a Unless a substantialsubstantial part of a work has part of a work has

been copied, no infringement of been copied, no infringement of

copyright can be claimed.copyright can be claimed.

– Substantial relates to both quantity and Substantial relates to both quantity and

qualityquality

– Amount which may be copied without Amount which may be copied without

permission is also linked to purposepermission is also linked to purpose

PurposePurpose

Allows individual users to copy for:Allows individual users to copy for:

Non-commercial research or private Non-commercial research or private

studystudy Criticism or reviewCriticism or review Reporting current eventsReporting current events

DurationDurationCopyright normally expires on 31 December 70 years after Copyright normally expires on 31 December 70 years after death of authordeath of authorExceptionsExceptions

Official publicationsOfficial publications Unpublished worksUnpublished works Anonymous worksAnonymous works Sound recordingsSound recordings FilmsFilms PhotographsPhotographs MapsMaps OthersOthers

Fair Use Guidelines for Fair Use Guidelines for Educators and StudentsEducators and Students

Our copyright laws acknowledge the Our copyright laws acknowledge the unique roles of educators and unique roles of educators and students.students.

““Fair Use” guidelines have been Fair Use” guidelines have been established.established.

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

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

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

3. Rules for Recording and 3. 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.

4-Fair Use guidelines for 4-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 laws clearly protects The Copyright laws clearly protects audiovisual works such as films and audiovisual works such as films and videotapes. The rights of copyright include videotapes. The rights of copyright include the rights of reproduction, adaptation, the rights of reproduction, adaptation, distribution, public performance and distribution, public performance and display. All of these rights are subject, 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 non circulating archival copies except to create non circulating archival copies except under limited circumstances. One can make under limited circumstances. One can make copies of DVDs if fair use applies , a replacement copies of DVDs if fair use applies , a replacement or preservation exemption applie, or a teaching or preservation exemption applie, or a teaching exemption applies . exemption applies .

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

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.

5-Guidelines for Students or 5-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.

Remember, the Fair Use Remember, the Fair Use Guidelines… Guidelines…

are just guidelines, not laware just guidelines, not law are somewhat flexible, but are somewhat flexible, but

be careful!be careful! a set of safe rules for a set of safe rules for

reproducing the work of reproducing the work of othersothers

In Conclusion In Conclusion

Copyright complex Copyright complex Risk has increasedRisk has increased Legal status unclearLegal status unclear Loss of rights real risk for universities Loss of rights real risk for universities

when trying to resolve risk of when trying to resolve risk of infringementinfringement

CONTACTCONTACT

Dr. Huda AL-chafes Dr. Huda AL-chafesJudgeJudge InasInas AL-khaldiAL-khaldi

College of Sharia and Islamic studiesCollege of Sharia and Islamic studies

Qassim University Qassim University

[email protected]@yahoo.com

AL-Qassim -BuraidahAL-Qassim -Buraidah

Tel : 06 ( 3800050)Tel : 06 ( 3800050)

Documents

Educational Fair Use in E-Materials Copyright The Second International Conference on e-learning and distance education Dr. Huda AL-chafes Dr Inas AL-khaldi