When in doubt, get permission. Disclaimer This presentation does not constitute legal advice. Consult a copyright attorney for specific legal advice

When in doubt, get permission.

DisclaimerThis presentation does not constitute legal advice. Consult a copyright attorney for specific legal advice. When in doubt, get permission from the copyright owner.

The fair use guidelines presented here are derived from opinions published by informed individuals, conference proceedings, organizations and associations that deal with copyright issues on a daily basis. Though they represent best practice, they have no legal weight. They are reasonable, and have been used by others, but no legal test has established precise, legally safe fair use guidelines that will apply in all cases.


Sidebar

Also be concerned with Trademark and Patent infringement. These are not covered in this presentation.

Copyright

Dr. Val DelVecchioDr. Val DelVecchio


ScenariosA teacher makes brief outlines, based on the class textbook, of daily points made in class for students who come in for tutoring. There is no charge for the outlines and they are collected and destroyed at the end of the semester.


ScenariosOne teacher prepares a booklet and activity pack to use in her classes that incorporates a large part of another teacher’s work on the subject. This packet was not sold to the students, but several copies were made available for students to use. The second teacher incorporated the information from the original booklet because at one time she was a student of the other teacher and liked the booklet used in his class.


Scenarios

A photography teacher is developing an online version of his course. He intends to use several digitized photos from the class textbook. Not sure if this is fair use, he writes to the publisher to get permission just to be safe. The publisher did not respond by the time the course needed to start, so the teacher used the images anyway believing that permission would eventually be granted.


Scenarios

An economics instructor wants his students to watch “Money Line” on CNBC. Because this is for educational purposes, the teacher asks his school media department to tape the show every night and make them available to his students.


ScenariosA sociology instructor videotapes her weekly class panel discussions to air on the local cable access station. She produces and edits all the tapes. She likes Vivaldi and uses “The Four Seasons” as background music for the title and credits. The teacher believes this to be appropriate because classical music is so old that it is in the public domain.


ScenariosA philosophy professor decides on Monday to tape a PBS show on Jung airing that night, to use with his class on the following Wednesday. He records the show and presents it to the class. The activity was successful; the teacher decides to keep the tape and use it again the next semester.


Scenarios

To sue or not to sue?


Relevance


What is the Purpose of Copyright?

““To promote the progress of science and To promote the progress of science and the useful arts by securing for limited the useful arts by securing for limited times to authors and inventors the times to authors and inventors the exclusive rights to their respective exclusive rights to their respective writings and discoveries”writings and discoveries”

U.S. Constitution, Article 1, Section 8U.S. Constitution, Article 1, Section 8

http://www.ucop.edu/ott/crprimr.html


Why should we care?• Violation of copyright is illegal and Violation of copyright is illegal and

punishablepunishable

• It is important to protect the intellectual It is important to protect the intellectual property rights of others to guarantee that property rights of others to guarantee that ours are assured as wellours are assured as well

• As teachers we set the example for our As teachers we set the example for our studentsstudents


Why Some Educators Get in Trouble with Copyright

• They think everything is allowable, including unlimited copying, if it’s for educational purposes. They don’t understand the laws

• They think only their institution is liable for copyright infringement

• They believe the institution will defend them in copyright infringement cases


Why Some Educators Get in Trouble with Copyright (Cont.)

• They do not want to go through the trouble of getting permissions

• They do not want to pay permission fees

• They empathize with their students who cannot afford the high cost of textbooks and encourage them to photocopy


Copyright LegislationCopyright Law 1976Copyright Law 1976

• ““Fixed form” Copyright becomes lawFixed form” Copyright becomes law• Copyright years extended by 1976 act and further Copyright years extended by 1976 act and further

extended by the Sonny Bono Copyright Extension extended by the Sonny Bono Copyright Extension ActAct

• DMCA, TEACH Act , PiracyDMCA, TEACH Act , Piracy• Case Law begins to define the law through Case Law begins to define the law through

litigationlitigation• Public Domain and fair use are carefully Public Domain and fair use are carefully

considered in the 1976 lawconsidered in the 1976 law


Penalties for InfringementSection 504, Title 17, United States Code (the Copyright Law)

provides remedies for copyright owners:

• General: Actual damages and any additional profits

• Statutory: For willful infringement, up to $150,000. For innocent infringement, much less severe. But some remedy will be issued by the courts


“Innocence” DefenseInnocence seems to be defensible if the infringer follows a school’s posted copyright policies. By following posted policy, it is implied that the infringer legitimately thought the use of copyrighted materials was “Fair Use.”


SBCC’s policies can be found in the Faculty

Handbook.

Refer to them for guidance, but be aware that they are limited in scope to providing guidelines for duplication of print materials only.


Copyright FAQs

http://www.dtic.mil/cendi/publications/00-3copyright.html#241

Glossary of Terms

Copyright Basics

Use of Copyrighted Works

Applicable Copyright Legislation and Other Resources on the Internet


Defining Copyright & Plagiarism

http://www.lib.iastate.edu/commons/resources/copyright/copyright.html

• How are copyright and plagiarism related?

• As educators how can we address plagiarism?


Defining Copyright & Plagiarism (cont.)

• Electronic tools for detection (TurnItIn, Google…)



•Hand check in the old-fashioned way

• The library can help you check sources



•Specify consequences



• Define plagiarism to your students and explain why avoiding it is important


Materials That Do Not Fall Under Copyright Law

• Government publicationsGovernment publications• Public domain worksPublic domain works

• Be aware that artworks and music Be aware that artworks and music are often problematic are often problematic

• Reprints of government publications or Reprints of government publications or public domain workspublic domain works


How Long Does Copyright Last?

Copyright lasts the lifetime of the author and 70 years after death.

(http://oregonstate.edu/admin/printing/copyright/wcopyright.htm)


Fair Use


What is Fair Use?

Section 107 of Title 17 states “the fair use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching, scholarship, or research is not an infringement of copyright.


Fair Use Rules of Thumb

http://www.utsystem.edu/ogc/IntellectualProperty/copypol2.htm#rules


Consider these four Factors in Determining Fair Use

http://www.bitlaw.com/copyright/fair_use.html

• Is it for educational purposes or for profit?

• What kind of item are you using? Fact-based? Imaginative?


Consider these four Factors in Determining Fair Use

http://www.bitlaw.com/copyright/fair_use.html

• How much are you using?

• What effect would your use have on the owner’s ability to make money from his/her work?


Examining the Factors

(http://www.utsystem.edu/OGC/IntellectualProperty/copypol2.htm )


Factor 1 - Is it for educational purposes or for

profit?

Though obvious on the surface, teachers need to be careful not to build any profit into course packs or packets of photocopied materials.


Fair Use Not Fair Use

Non-profit Commercial

Educational

Personal

Factor 1 – Character or nature of use


Factor 2 – What kind of item are you using? Fact-

based? Imaginative?

Items based on factual information fall more easily under fair use than do creative materials.


Factor 2 (cont.)

Changing the size, form, or media of a work violates copyright (i.e. one cannot change a VHS tape into a DVD, an audio into a CD, a print into a digital image.)


Factor 2 - Nature of the work to be used


Fact Imaginative Ideas

Published Unpublished


Factor 3 – How much are you using?

Obviously you cannot copy entire works that are copyright protected. Even if you are copying excerpts, there are clear limits on the amount that you can use. That amount is generally quite limited.


Factor 3 (cont.)It is also illegal to copy a work piece by piece. The cumulative effect restriction applies. Be careful not to copy so many excerpts that the legal minimum is surpassed. You can’t copy one poem one week and another the next, one chapter…


Factor 3 - How much of the work will you use?


Small amount More than a small amount


Factor 4 - What effect would your use have on the owner’s ability to make money from his/her work?

Does your use prevent the holder of the copyright from making potential profit from the sale of the item. You can’t copy a large portion of a text book for your students, for example, as it would deprive the copyright holder of the chance to profit from the the work.


Factor 4 (cont.)

You can, however, make one copy of a work for personal, educational use.


Factor 4 (cont.)

There are other instances where you can copy a entire work without consequence.


Factor 4 (cont.)

• If you purchased a video tape and it needs repair, you can repair and copy it.


Factor 4 (cont.)

• If you purchase software, you have the right to make an archival copy.


Factor 4 (cont.)

• If you have a personal copy of an item you later license for multiple use, you can copy and use your original until the new licensed version arrives.


Factor 4 - If this kind of work were widespread, what effect would it have on

the market for the original?


After evaluation of the first three factors, the proposed use is tipping toward fair use

Competes with the original

Avoids payment for permission in an established permissions market


Leaning Toward Fair Use

Though the courts seem to put more importance on #4, if Factors 1-3 lean toward Fair Use, Factor 4 is not considered because a copyright holder cannot lose money if the copied materials are considered Fair Use under Factors 1-3.


Official Guidelines found in Circular 21 at the U.S. Copyright Office (www.loc.gov/copyright)

Classroom Guidelines for Fair Use


Brevity, Spontaneity and Cummulative Effect

Basis of the guidelines; they are used as tests of Fair Use.

.


Brevity

Guidelines for Print Materials

1. Brevity for multiple copies:a) 1000 word excerpt or 10% for Books, fiction,

non fiction, textbooks and theses. Cumulative use = twice per term per class

b) 2500 word excerpt or story for stories, essays, anthologies and encyclopedias. Cumulative use = two to three times per term per

class

c) 250 words per poem. Cumulative use = twice per term per class


Cartoon, Graph, or picture one per book or issue. Cumulative use = two to three times per term

per class.

Printed Lecture, Sermon, or Speech one per book. Cumulative use = two to three times per term

per class.

2500 words per Periodical. Cumulative use = three times per term per class.


Spontaneity

It is fair to use materials immediately in the class to capture the “teachable moment.”

You cannot plan or calculate ahead of time without acquiring reprints or permissions.


Spontaneity Depends on the “Good Faith” of

the User.


Cumulative EffectThe aggregate compilation of a work is prohibited as sequential copying of portions of a work would harm its potential market.


For example . . .

You cannot copy one chapter of a book one time, another chapter another time, etc. until the entire book is copied.


Duplication of any consumable items such as

workbooks, manuals, study-guides, standardized tests is

prohibited.


Course Planning

• If you’re assigning 6 chapters from a 10-chapter book, have the students buy the book.


Course Planning (cont.)

• If a reading is already available electronically on the Web or in a library database, have your students use that.


Course Planning (cont.)

• Be familiar with fair use guidelines

• If your readings exceed fair use, be prepared to ask permission


Getting Permissions• Granting permission is up to the

copyright owner

• A fee may be assessed

• Copyright Clearing Center (http://www.copyright.com)

• $.75 per page for some items


Our Bookstore Will Get Permissions for

Course Packs


Multimedia Projects and Fair Use


CONFU: The Conference on Fair Use

http://www.utsystem.edu/ogc/intellectualproperty/confu.htm

During this conference certain fair use guidelines were developed for multimedia. Though these were not officially adopted, they provide valuable direction in making determinations about fair use.


Guidelines for Multimedia Projects

Participants at the CONFU generally agreed that students and educators can use portions of lawfully acquired copyrighted works in multimedia projects.


Motion Media

Up to 10% or 3 minutes, whichever is less.


Text Materials

Up to 10% or 1,000 words, whichever is less.


Text Material (cont.)

Entire poem of less than 250 words may be used, but not more than 3 poems by one poet or 5 poems by different poets from any anthology.


Text Material (cont.)250 word excerpts may be taken from poems of greater length, but no more than 3 excerpts by a given poet or 5 excerpts from different poets from a single anthology.


Music and Lyrics•Up to 10% but never more that 30 seconds of the music and lyrics from any individual musical work.

•Any alterations must not change the basic melody or the fundamental character of the work.


Numerical Data Sets

Up to 10% or 2500 fields or cell entries, whichever is less, from a copyrighted database or data table.


Illustrations and Photographs

• Hard to define because fair use usually precludes the us of an entire work– what is an “excerpt” or a percentage of a photo or an illustration?


Illustrationsand Photographs (cont.)

• Guidelines: A photo or illustration (art work) may be used in its entirety, but no more than 5 images by a photographer or artist.


Illustrations and Photographs (cont.)

• If using images from a published collected work, not more than 10% or 15 images, whichever is less, may be reproduced.


Copying Multimedia Works that Contain Fair Use Material

• No more than two copies can be made of a multimedia work that contains fair use material. Only one copy may be placed on library reserve.


Copying Multimedia Works that Contain Fair Use Material

(cont.)• One additional copy may be made for archival purposes, but may only be used or copied to replace one that has been lost, stolen, or damaged.


Off-Air Recording

You may record a program off air and use it over the next 10 days in a “classroom” environment for instruction. It must be erased no longer than 45 days after its recording.


Off-Air Recording (cont.)

If anyone other than students and teachers (parents, friends, visitors,…) is present when this material is shown, even in a classroom, it is considered a public performance and you must secure public performance rights from the copyright owner.


Using Rental Media in Class

You can use a movie rented from “Blockbuster” as long as it is used for instructional purposes and not simply for entertainment.


When in Doubt, Get Permission


(http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/index.html)

Course Web Pages

Copyright FAQs Fair UseThe Public DomainIntroduction to the Permissions ProcessWebsite PermissionsAcademic and Educational PermissionsReleases Copyright Research


Linking

Linking to another Web page from your site is not a violation of copyright.


But Be Careful of

• Deep linking

• Framing

• Inlining


Distance Education and the TEACH Act

http://www.ala.org/ala/washoff/WOissues/copyrightb/distanceed/distanceeducation.htm

• Legislative History

• New Copyright Law for Distance Education: The Meaning and Importance of the TEACH Act


Permission Request Forms

(http://www.nacs.org/common/copyright/permissionrequest.pdf )

You don’t need a form, a letter to the copyright holder providing all the pertinent information is suitable.


Safe Harbors

The Digital Millennium Copyright Act (DMCA) provides a “Safe Harbor” to service providers, which includes schools. The school must register with the Copyright Office as a Safe Harbor, and establish and post copyright policies.


FAQs and other information about

linking can be found at

http://chillingeffects.org


Scenarios

A teacher makes brief outlines, based on the class textbook, of daily points made in class for students who come in for tutoring. There is no charge for the outlines and they are collected and destroyed at the end of the semester.


Answer

In this very old landmark case, Macmillan v. King, the publisher sued the teacher for copyright infringement. The teacher claimed this was typical of materials produced by teachers.


Answer (cont.)But the court made a distinction between King’s outlines and others like it, based on how much of the book’s expression was reproduced. The court ruled that this was an infringement of the publisher’s copyright.


Answer (cont.)The teacher used more of the textbook’s ideas and language than permitted by copyright. If the outlines simply referred to the book without reproducing the information, the court might have ruled differently.


Answer (cont.)

The court also noted that the students might use the outlines in lieu of the book, therefore harming sales of the book (Sinofsky, p. 25).


ScenariosOne teacher prepares a booklet and activity pack to use in her classes that incorporates a large part of another teacher’s work on the subject. This packet was not sold to the students, but several copies were made available for students to use. The second teacher incorporated the information from the original booklet because at one time she was a student of the other teacher and liked the booklet used in his class.


Answer

In Marcus v. Rowley, the district court dismissed the suit because it was considered fair use . . .


Answer (cont.). . . however, the appeals court reversed the decision because they considered the second work to have the same “intrinsic” purpose as the first, as well as the same subject matter, and therefore was in competition with the first (Sinofsky, p. 127).


ScenariosA photography teacher is developing an online version of his course. He intends to use several digitized photos from the class textbook. Not sure if this is fair use, he writes to the publisher to get permission just to be safe. The published did not respond by the time the course needed to start, so the teacher used the images anyway believing that permission would eventually be granted.


Answer

This might be fair use of the images, depending on the number and the source. However, permission cannot be assumed or anticipated. It is best to wait for written permission.


Scenarios

An economics instructor wants his students to watch “Money Line” on CNBC. Because this is for educational purposes, the teacher asks his school media department to tape the show every night and make them available to his students.


Answer

It is probably a violation. This copying is not “spontaneous” and also an entire program is being copied. The teacher should get permission beforehand.


ScenariosA sociology instructor videotapes her weekly class panel discussions to air on the local cable access station. She produces and edits all the tapes. She likes Vivaldi and uses “The Four Seasons” as background music for the title and credits. The teacher believes this to be appropriate because classical music is so old that it is in the public domain.


AnswerAlthough the words and melody may be in the public domain, the performance is most likely copyrighted. The teacher should get permission from the record label or whoever owns the copyright to the particular performance she wants to use.


ScenariosA philosophy professor decides on Monday to tape a PBS show on Jung airing that night, to use with his class on the following Wednesday. He records the show and presents it to the class. The activity was successful; the teacher decides to keep the tape and use it again the next semester.


AnswerEverything is OK up until the part about keeping the tape. The initial use was spontaneous, but an off-air recording must be erased within 45 days of recording. If the teacher wants to use it again the next semester, he should get permission from the copyright owner.


Scenarios

To sue or not to sue?

( http://www.photohudson.com/modelclothes.html )


Answer

You tell me!


SBCC Contacts• Legal, policy and responsibility Legal, policy and responsibility

issues: issues: • Sue EhrlichSue Ehrlich

• Resource people: Resource people: • John Lorelli, BookstoreJohn Lorelli, Bookstore• Val DelVecchio, LibraryVal DelVecchio, Library

Documents

When in doubt, get permission. Disclaimer This presentation does not constitute legal advice. Consult a copyright attorney for specific legal advice