Copyright & Fair Use An examination of audio copyright and fair use for educators. Elizabeth Liner Willis Kennesaw State University

What is Copyright? To put it simply, copyright protects original works and their authors from being used without permission. Copyright protects the individual or group in a variety of ways, including the distribution and adaptation of their product. There is a limit to what can and cannot be copyrighted. Definition: U.S. Copyright Definition:  "a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works.“ Copyright protects the owners in terms of reproduction, adaptation, distribution, public performance and display, and digital transmission of sound requirements. Limits: Copyright is not given for ideas or facts that are considered public domain, for words or slogans or government works. Copyright does cover any form of literary work, musical work, dramatic work, graphic work, motion picture, sound recording, or architectural work. Copyright is not the same thing as a trademark. All creators are entitled to be paid for their work, as well as decide how and when their work will be used.

Copyright Laws & Expectations The age of a work does alter the copyright. The United States Constitution protects copyright. It is vital to be aware of what is legal. Ignorance is not an excuse. Teachers can seek information pertaining to copyright laws from Cornell University Law School here. International copyright does not exist. If the work was created before January 21, 1923, it may be used freely without permission. Works created on or before January 1, 1978 are protected for the duration of the author’s life plus 70 years. Copyright is assigned upon creation, not just publication. The creator is assumed to be the owner of the material. Article 1, Section 8, Clause 8 allows Congress to create laws that protect and enforce copyright. The copyright law of 1976 specifies what is protected by law. Protection for unauthorized use in a particular country is contingent upon the specific laws of that country.

What is Fair Use? Fair use allows for copyrighted materials to be used with the owner’s permission as long as certain guidelines are followed. Allows for educators in a classroom to comfortably utilize materials for educational purposes; however, there are restrictions. Only portions of materials may be used. Teachers may not photocopy anything that diminishes profits from an educational publisher. If in doubt, seek permission. Guidelines: Fair use is considered to be news reporting, teaching, research, and criticisms. Restrictions: Must be part of an instructional lesson. Educators must obtain the original legally and are limited in the number of copies that can be made. The copyright must be acknowledged. This is for a one-time use. If the teacher is going to use the material multiple times, they need to seek permission. Portions: Poems that are less than 250 words. Articles, stories, and essays that are less than 2,500 words. One chart, picture, graph, or other visual medium per book or periodical. Audio: 10% of a performance (maximum of 30 seconds) Video: 10% or 3 minutes (whichever is smaller). If it is replacing or substituting for the purchase of educational materials, it does not qualify as fair use.

Fair Use Expectations Just because something is easily accessible does not make it free. Use the four factors for fair use consideration. Guidelines for fair use are not covered by the federal Copyright Act. Teachers should be aware of the guidelines for qualifications of fair use. Four factors: Purpose/character of use, the amount of the work that will be used, the overall nature of the work, and the effect of the market for that work (profits). Guidelines are not covered; however, they are recognized by the Copyright Office as long as the guidelines are followed. Being on the Internet does not constitute fair use. Also, copyright notice is no longer required. You are expected to be knowledgeable that copyright attaches upon creation. Unauthorized use of material is considered to be infringement, regardless of profit. Always be aware of guidelines.

Creative Commons Creative Commons is a non-profit organization that allows creators to share their work. Allows for creators to choose between “all-rights reserved” and “some-rights reserved”. Prevents copyright infringement. Use of work can be specified and changed. Prevents copyright infringement, provided that the user follows the specified requests.

Relevancy of Copyright & Fair Use for Educators In the event of infringement, the damages include a variety of staff. Infringement cases can result in high monetary damages. Create and maintain a copyright policy to protect yourself and your school. Always obtain student permission before posting anything online. Understand that once you have lost control of your audience and distribution, fair use no longer applies. The teacher, principal, and school board can all be sued for infringement. Further, students and their families can be sued for infringement if they distribute the work. Monetary damages can result anywhere from $750 to $30,000. Up to $150,000 can be rewarded if the court deems the infringement as willful. This does not include attorney fees. Know the law and follow it. Train staff and provide frequent updates. Because work is copyrighted upon creation, student work is the property of the student. Before posting to online websites, obtain student and parent permission. It is wise practice to have students and parents sign an “intent to post” letter.

Scenario #1 A teacher downloads music clips from MP3.com for students to use for their multimedia project. Is this fair use? Why or why not?

Scenario #1 Solution Because MP3.com pays for their music, this is considered fair use, provided the following guidelines are followed: Less than 30 seconds of the audio clip is utilized The student gives credit to the artist. The clips are used for an instructional purpose.

Scenario #2 The senior class creates a video on scholarship night that consists of pictures from the student body throughout life as well as popular songs from the school year. Is this is considered to be fair use? Why or why not?

Scenario #2 Solution This is not considered to be fair use for the following reasons: The scholarship night video is not considered to be instructional in nature. Songs may not be used in their entirety.

Scenario #3 A student is completing a project on their cultural identity. To enhance their assignment, they have chosen to represent their culture by playing a clip of music from their country of origin that they obtained from a CD that was purchased by the student’s parents. Is this an example of fair use? Why or why not?

Scenario #3 Solution Yes, this is an example of fair use for the following reasons: A clip of the music is being played, instead of the song in its entirety. The original song came from a CD that was purchased by the student’s parents. The clip is being used to enhance the educational purpose of the student’s presentation. The student should acknowledge within their presentation who the artist is as well as other identifying information to provide full credit. To follow fair use, the presentation cannot be distributed. If it were to be uploaded to a class website for the general public to view, permission would need to be obtained.

Wrap-Up Today’s technological capabilities has made it possible for students and teachers to access a vast array of resources. Utilizing material in the classroom that is for sale with paying for the material could be considered infringement, and is illegal. If in doubt, always seek permission. Supplemental material is crucial to student achievement; however, credit must be given and laws must be followed. Not paying for materials in a deterrent for creativity and creation. New materials will not be created. Everyone is entitled to payment for their work.

References Copyright and fair use guidelines for teachers. (n.d.). Retrieved March 11, 2016, from https://www.softchalkcloud.com/lesson/files/hlqoNDES9JdiTr/Copyright&FairUsebyTechnologya ndLearning. pdf Copyright for teachers. (n.d.). Retrieved March 11, 2016, from http://www.auburn.edu/citizenship/copyright_for_teachers.html Creative commons. (2016). Retrieved March 11, 2016, from https://creativecommons.org/about/  Hansen, J. (2011, May 19). Copyright issues in teaching: Issues for on-ground to online courses. Retrieved March 11, 2016, from https://www.softchalkcloud.com/lesson/files/hlqoNDES9JdiTr/CopyrightByJonHansen_KSU.pdf Parness, A.. (2007). Copyright kids. Retrieved March 11, 2016, from http://www.copyrightkids.org/ United States Copyright Office Circular 21; Sections 107, 108, and 110 of the Copyright Act (1976) and subsequent amendments, including the Digital Millennium Copyright Act; Fair Use Guidelines for Educational Multimedia; cable systems (and their associations); and Copyright Policy and Guidelines for California’s School Districts, California Department of Education.