The Copyright Act Face-to-Face Teaching & Fair Use Exemptions Pictures and Information in this presentation are used in compliance with the Federal Copyright Act of 1976, as amended.

 The federal Copyright Act of 1976, as amended (“the Copyright Act”), establishes limitations on when copyright protected work can be copied, displayed, performed, recorded, transmitted, and/or distributed by anyone other than the author or creator of the work.  Requirements of the Copyright Act are provided in the presentation entitled “Overview of the Federal Copyright Act” and are not presented herein. The purpose of this presentation is to provide the steps and standards to follow in the Brandywine School District when an employee or student intends to use copyright protected work for instruction in the classroom or for training and professional development for staff under the Face-to-Face or Fair Use exemption of the Copyright Act.  This presentation does not provide legal advice regarding whether an intended use of copyright protected work meets the requirements of the Copyright Act. Any specific questions should be addressed to an attorney- at-law. PURPOSE

If a Brandywine School District instructor, teacher, or student intends to use copyright protected work, s/he must have authorization from the copyright owner to copy, display, transmit or perform in public, record, create other work derived from the work, or distribute the work to others, unless an exemption applies. General Rule

The Copyright Act provides two exemptions for students and employees of non-profit educational institutions to use copyright protected work without written authorization from the copyright owner if the work is used for educational purposes. The exemptions are known as the Face-to-Face Teaching Exemption and the Fair Use Exemption. Exemptions provided by the Copyright Act

The Face-to-Face Teaching Exemption establishes criteria for using copyright protected work without authorization from the copyright owner to instruct students on lessons created by a teacher. This exemption does not create a legal right to use copyright protected work without authorization, but provides a legal defense to a claim for copyright infringement. The Face-to-Face Teaching Exemption places limits on who is eligible to use the exemption and how copyright protected work can be used. Face-to-Face Teaching Exemption Section 110(1) of the Copyright Act.

Who entitled to use the Face-to-Face Teaching Exemption?  Classroom teachers and students.  Non-classroom teachers (i.e. counselors, librarians, psychologists) if they are presenting a lesson or providing instruction to students. Librarians are entitled to additional exemptions as described in Circular 21 from the Copyright Office.

How Can Copyright Protected Work be used under the Face-to-Face Teaching Exemption? Copyright protected work can performed, displayed, or transmitted in a classroom (or similar place devoted to instruction within the building) by teachers or students as an aspect of instruction for lessons planned by a teacher. Classroom teachers can make one copy of copyright protected work to use in preparing lesson plans as long as the copy does not exceed fair use as descried below.

 As long as:  There is no direct or indirect admission charge;  The copyright protected work was legally acquired;  The copyright protected work is being used as a regular part of an instructional activity;  The copyright protected work is directly related to the content of the instruction;  Acknowledgement that the work is protected by copyright must appear on the copy being displayed, performed, or transmitted. How can Copyrighted Material be used under the Face-to-Face Teaching Exemption?

 Performing a copyright protected piece of music in the classroom.  Displaying a copyright protected map during instruction.  Teachers reading aloud from a copyright protected book.  Students reading aloud from a copyright protected book of poetry for a class assignment.  Teachers showing students a copyright protected movie from the school library supporting a planned lesson.  Displaying a copyright protected photograph during classroom instruction.  Displaying student work in the student’s classroom. Examples of using Copyright Protected Work under the Face-to-Face Teaching Exemption

Teachers and Students cannot:  Make multiple copies or distribute copies of protected work to students or others:  Display copyright protected work in public;  Re-record copyright protected work; or  Show copyright protected movies/videos/broadcasts, including those maintained in a school or library, as a reward or for any purpose other than instruction. (Movies and videos can be shown for purposes other than instruction if a license has been purchased allowing that use.) If the Face-to-Face Teaching exemption cannot be used or does not meet the users needs, the Fair Use Exemption may apply. Limitations on the Face-to-Face Teaching Exemption

The Fair Use exemption establishes criteria to use copyright protected work without authorization from the copyright owner for the purpose of education, research and other reasons. This exemption does not create a legal right to use copyright protected work without authorization, but provides a legal defense to a claim for copyright infringement. The Fair Use exemption places limits on who is eligible to use the exemption, how much of the work can be used, and how long the work can be used without authorization from the copyright owner. Fair Use Exemption Section 107 of the Copyright Act

 For purposes of student instruction, teachers and students are entitled use the Fair Use exemption.  Other District employees providing instruction for training or professional development for employees may be eligible to use the Fair Use exemption for multimedia or presentations. The rules for teacher created presentations will apply in those circumstances.. Who is entitled to use the Fair Use Exemption?

 There is no simple or easy test to determine if the intended use of copyright protected work falls under the Fair Use exemption. The determination can be time consuming and complex, and is ultimately the decision of a court of law.  However, the federal Copyright Office recognizes a set of guidelines established through agreements between corporate copyright owners and several academic/artistic associations that provide criteria for the fair use of copyright protected work for educational purposes. Fair Use guidelines are listed in Circular 21 from the federal Copyright Office. Determining if the Fair Use Exemption Applies

 Board Policy requires adherence to the Fair Use guidelines chart referred to in Regulation R The Brandywine School District Fair Use guidelines chart is presented below and available in all school libraries and the main office of non-school buildings. Other fair use guideline charts can be found on the Internet. Fair Use Guidelines

Printed Materials Type of Material  Can use all of:  A Poem of 250 words or less  One chapter from a book  One chart, picture, diagram, graph, cartoon or illustration from a book or periodical.  Articles, stories, or essays less than 2,500 words.  Can use an excerpt of:  250 words from a poem of more than 250 (however can complete the sentence if it goes beyond 250 words).  10% of work or 1,000 words, whichever is less ( will allow a minimum of 500 words) from an article, story, or essay of 2,500 words or more.  Two page maximum from an illustrated work less than 2,500 words. Fair Use  Teachers can:  Make multiple copies and distribute to students in the class. Only one copy per student can be made and distributed.  Use in an academic multimedia presentation.  Make one copy for personal use in preparation of lesson plans.  Students can:  Use in an academic multimedia presentation.

Printed Material Conditions & Limitations Conditions  Copies may be made only from legally acquired copy of an original.  May only use the Fair Use Exemption for nine instances during a class term without authorization (newspapers can be used more often).  Not more than one complete poem, article, essay or short story, or two excerpts from the same author, or three excerpts from a collection or the same periodical (except if related to current events) can be used during a class term. Continued… Time Limitations  Teachers can:  Use copied and distributed work for one class term. Thereafter, written authorization is required.  Keep multimedia academic presentations containing protected work for two years. Thereafter, written authorization is required.  Students can:  Keep multimedia academic presentations in a portfolio indefinitely without acquiring written authorization.

Conditions:  Cannot create anthologies or compilations.  Copying cannot be a substitute for buying a copy of the work.  Presentations that include copyright protected work cannot be posted on the Web without written authorization from the copyright owner.  Students cannot make copies of the work distributed to them by a teacher.  Workbooks, test answer sheets, or work sheets cannot be copied unless authorized by the copyright notice.  Students cannot copy copyright protected work maintained in a portfolio without written authorization from the copyright owner. Continued… Printed Materials Additional Conditions

Conditions:  The decision to use the material must be at the “instance and inspiration of a single teacher” or student. The work must be used extremely close in time to the decision to use the work.  Cannot copy any portion of printed material sent to the District or school for review or adoption considerations.  A statement identifying the copyright and that the work cannot be re-copied or posted on the Web without written authorization from the copyright owner must be included.  A. bibliography of sources must be included at the end of a report or presentation. Printed Materials Additional Conditions

Photographs & Illustrations Type of Material  Single Photograph not found in printed material  Single Illustration not found in printed material  Collections of photographs  Collections of illustrations Fair Use  Teachers can:  Make multiple copies and distribute to students in the class. Only one copy per student can be made and distributed.  Use in an academic multimedia presentation.  Make one copy for personal use in preparation of lesson plans.  Students can:  Use in an academic multimedia presentation.

Photographs & Illustrations Conditions & Limitations Conditions  Not more than 5 single images by an artist or photographer can be used.  Not more than 15 images or 10% from a collections, whichever is less.  Presentations that include copyright protected work may not be posted to the Web without written authorization from the copyright owner. Continued….. Time Limitations  Teachers can:  Use copied and distributed work for one class term. Thereafter, written authorization is required.  Keep multimedia academic presentation with protected work for two years. Thereafter, written authorization is required.  Students can:  Keep multimedia academic presentations in a portfolio indefinitely with acquiring written authorization.

Conditions:  Older Illustrations may be in the Public Domain, however if printed in a collection they may be copyright protected.  A statement identifying the copyright and that the work cannot be re-copied or posted on the Web without written authorization from the copyright owner must be included.  A bibliography of sources must be included at the end of a report or presentation. Photographs & Illustrations Additional Conditions

Movies & Video Type of Material  Movies  Videotapes  DVD  Laser Discs  QuickTime Movies Fair Use  Teachers can:  Use 10% or 3 minutes (whichever is less) in an academic multimedia presentation.  Students can:  Use10% or 3 minutes (which ever is less) in an academic multimedia presentation Remember, teachers and students can display a complete copy of a movie, video, DVD, Laser Discs, etc., as an aspect of instruction under the Face-to-Face Teaching Exemption.

Movies & Video Conditions & Limitations Conditions  Copyright protected work in multimedia presentations must have been legally acquired by the user.  A presentation containing copyright protected work may not be posted to Internet or Web.  A statement identifying the copyright and that the work cannot be re- copied or posted on the Web without written authorization from the copyright owner must be included.  A bibliography of sources must be included at the end of a report or presentation. Time Limitations  Teachers can:  Keep multimedia academic presentation with protected work for two years. Thereafter, written authorization is required.  Students can:  Keep multimedia academic presentations in a portfolio indefinitely with acquiring written authorization.

Television Broadcasts Type of Material  Purchased Videotapes of TV broadcasts.  Live “off the air” TV broadcasts Fair Use  Teachers can:  Make one copy of a pre- recorded Video for classroom instruction.  Record a live “off the air” broadcast for classroom instruction.

Television Broadcasts Conditions & Limitations Conditions  Cable channel programs cannot be taped or used without authorization from the Cable Company.  Off-air recordings must be made and used by the individual teacher and may not be regularly recorded in anticipation of need.  A limited number of copies may be rerecorded from off-air recordings to met the needs of the individual teacher. Continued….. Time Limitations  Recordings from pre-purchased Video recordings or off-air recordings may be kept for up to 10 school days  Off-air Recordings can be used once in the course of Face-to- Face teaching and may be repeated once when reinforcement is necessary  A teacher may be able to retain recordings from a Cable channel may for a period of years (see Cable in the Classroom at

Conditions:  The content of off-air recordings may not be altered, however excerpts from the recording of the program may be used instead of the entire program.  Recordings may not be combined to create an anthology or compilation.  All copies of off air-recordings must include the copyright notice as originally shown on the broadcast. Television Broadcasts Additional Conditions

Music Type of Material  Musical Scores  Records  Tapes/Recordings  Audio Clips on the Web  Music Video Fair Use  Teachers can:  Make emergency copies of scores to replace purchased copies not available for an imminent performance  Make a single or multiple copies of up to 10% of music to use in the classroom as long as a compilation of excerpts do not comprise a unit of performance.  Can record and retain a single copy of student performances for evaluation or rehearsal.  Make a single copy of a copyrighted sound recording for aural exercises or examinations.  Use 10% or 30 seconds (which ever is less)of a song for a multimedia presentation.  Students can:  Can record and retain a single copy of student performances for evaluation or rehearsal  Single copy of a copyrighted sound recording for aural exercises or examinations.  Use 10% or 30 seconds (whichever is less) of a song for a multimedia presentation.

Music Conditions & Limitations Conditions  The sound recordings from which copies are being made must be owned by the educational institution or individual teacher.  Copies cannot be made to create, replace, or substitute for anthologies, compilations, or collections of work.  Copies of scores cannot be made for the purpose of performances. Time Limitations  Copies of replacement scores may be retained for the performance only. Thereafter, replacement scores must be repurchased.  Copies of recorded performances for aural exercises or examinations may be retained by the educational institution or individual teacher.  Teachers can:  Keep multimedia academic presentation with protected work for two years. Thereafter, written authorization is required.  Students can:  Keep multimedia academic presentations in a portfolio indefinitely with acquiring written authorization.

 Copyright protected material must be purchased or a license fee paid if the material is used for a performance by students that is not a part of classroom instruction (i.e. Choir, Orchestra, Band, Play, Musical)  Written authorization must be acquired to publically display art work. Student Performances & Displays

Materials from the Internet Type of Material  Text  Images  Sound files  Video Fair Use  Teachers & Students can:  Download images and text for Face-to-Face instruction.  Download all types of material for use in an academic multimedia presentation.

Materials from the Internet Conditions & Limitations Conditions  Resources from the web may not be reposted onto the Internet without authorization.  Links to legitimate resources can be posted to the Internet.  Downloaded resources must be legally acquired by the website.  A statement identifying the copyright and that the work cannot be re-copied or posted on the Web without written authorization from the copyright owner must be included.  A bibliography of sources must be included at the end of a report or presentation. Time Limitation  Teachers can :  Keep multimedia academic presentation with protected work for two years. Thereafter, permission must be acquired.  Students can:  Keep multimedia academic presentations in a portfolio indefinitely with acquiring permission

Computer Software Sections 107 & 108 of the Copyright Act  Type of Material  District Purchased or Licensed Software  User Purchased or Licensed Software  Software borrowed from a library  Fair Use  District Technology Department can:  Install District purchased and licensed software onto District computers.  Teachers & Students can:  Install software they purchase personally or have a license for unto their home computer.  Install software borrowed from a library onto their home computer.

Computer Software Sections 107 & 108 of the Copyright Act  Conditions  Copies of Software cannot be made for retention  The number of Computers that may use the software is limited by the terms of purchase or license.  The number of computers or simultaneous users cannot exceed the number of licenses.  Time Limitations  Purchased or licensed software  Determined by the terms of purchase or license.  Borrowed software  For the period of time allowed under the terms provided by the Library.

 Distributing copies of a 250 word poem to students for a poetry lesson.  Recording a documentary on the Civil War broadcast on a national station (i.e. CBS) to show in a history class.  Providing photography students with five (5) copies of a photograph taken by a single photographer as examples lighting. Examples of Fair Use

The Fair Use Guidelines provide a defense to an allegation of copyright infringement. However, the determination is ultimately the responsibility of a court of law based upon an analysis of:  The purpose of the use—Educational or Entertainment  The nature of the work—Factual or Creative  The amount of the work used—Small or Large Percentage  Effect of the Market for the work—Small or Large Audience  Time the Decision to use work was made—Short or Long time before using the work. Final Determination Of Fair Use

 If the analysis determines that use of copyright protected work falls into all categories within the Left Column of the chart below, then a court may find that the use was allowed under the Fair Use exemption.  If the analysis determines that the use of copyright protected work falls into any of the categories within the Right Column of the chart below, then a court will probably find that the use was not allowed under the Fair Use exemption a copyright infringement. Final Determination Of Fair Use

Outcome of Analysis of Factors Possibly Fair Use  Purpose of use—Educational or scholarly  Nature of work—Factual  Amount Used—Small portion or Percentage  Size of Audience—Single Use or a small effect on the market for the work  Decision to use work— Spontaneous or close in time to the use and not enough time to ask for and receive authorization Probably an Infringement  Purpose of use—Entertainment or Reward  Nature of work—Creative  Amount Used—Entire work or large Percentage  Size of Audience—Multiple Use or a large effect on the market for the work  Decision to use the work— Systematic or continued

Original work can be used for instruction of students, or training or professional development of employees in the Brandywine School District if:  The work is not protected by the Copyright Act; or  The requirements of the Copyright Act are followed as presented. The best practice is to have authorization from the copyright owner before using copyright protected work. Summary

Summary Chart Status of the Work to be Used Work is Not Protected Work is Protected Work in the Public Domain Purchased Copies License Written Authorization Face-to-Face Teaching Exemption Work created Government Fair Use Exemption Work never Protected Unrestricted use ofCannot use unless

 Federal Copyright Website   Circulars 1,3,15a, 21, and 22.  Know Your Copy Rights —What You Can Do, [brochure] Washington, DC: ARL, 2007 at  References & Resources

 Technology & Learning—Copyright and Fair Use Guidelines for Teachers   Copyright and Fair Use Guidelines for Teachers   Copyright Kids  References & Resources