1 Copyright and Fair Use Guidelines C. Candace Chou University of St. Thomas

2 The Basics of Copyright According to Berne convention in 1989, all works originally created by you and fix them into a permanent medium, you own the copyright on them. No © or “Copyright” is needed. Work produced while under employment might belong to the employer (depending on the contract). Examples of copyrighted works: An entry in your diary Lesson plan Recording you made of your class singing “The Star-Spangled Banner.”

3 Creating a Copyright Expression: A fact or idea cannot be covered by copyright, but the the unique description of an idea can be. Original: A work must be the product of the creator’s own creative labor. Fixed medium: A speech that is given and never recorded is not covered by copyright, but if it is written down, saved on a teleprompter screen, or recorded by a TV camera, then the speech is copyrighted (including web pages, , chat room transcripts).

4 The Copyright Law The Copyright Act gives the owner of copyright the exclusive right to do and to authorize others to do the following: Reproduce the copyrighted work in copies or phonorecords. Prepare derivative works based on the copyrighted work. Distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership or by rental, lease, or lending. Perform the copyrighted work publicly, e.g. literary, musical, dramatic or choreographic works. Display the copyrighted work publicly

5 The Fair Use Statute Section 107 of the Copyright Act of Limitation on exclusive rights: Fair use Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecordes or by any other means specified in that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

6 Four Factors in Determining Fair use The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for a value of the copyrighted work.

7 Court Case I Example 1: Kinko’s sales of photocopied book chapters as the “coursepacks” for the university classes. Court’s decision based on the four factors: Purpose: the copying was for commercial purposes and not for educational purposes Nature: Most of the works were factual--history, sociology--a factor which weighed in favor of fair use. Amount: The court analyzed the percentage of each work, finding that five to 25 percent of the original full book was excessive. Effect: The court found a direct effect on the market for the books - packs directly competed with the potential sales of the original books as assigned reading for the students.

8 Court Case II Example 2: A consortium of public school districts systematically recorded programs from public TV stations and provided copies to member schools. Purpose: The court was sympathetic with the educational purpose. Nature: The programs were commercial products intended for sale to educational institutions. Amount: Copying the entire work and keeping copies for as long as 10 years Effect: The copying has direct impact on the market sales. The court concluded that the activities were not fair use. Source: CETUS: Consortium for Educational Technology for University Systems

9 Photocopying under the Fair Use Doctrine Multiple copies for classroom use may be made by or for the teacher giving the course for classroom use or discussion provided that: (a) the copying meets the tests of brevity and spontaneity, (b) the copying meets the cumulative effect test, and (c) each copying includes a notice of copyright.

10 Brevity Length Poetry: (a) A complete poem if less than 250 words and if printed on not more than two pages or, (b) from a longer poem, an excerpt of not more than 250 words. Prose: Either a complete article, story, or essay of less than 2,500 words, or an excerpt from any prose work or not more than 1,000 words or 10 percent of the work, whichever is less. Each of the numerical limits stated above may be expanded to permit the completion of an unfinished line of a poem or prose. Illustration: One chart, graph, diagram, drawing, cartoon, or picture per book or per periodical issue.

11 Spontaneity The copying is at the instance and inspiration of the individual teacher. The inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission.

12 Cumulative Effect The copying of the material is for only one course in the school in which the copies are made. Not more than one short poem, article, story, essay, or two excerpts may be copied from the same author, nor more than three from the same collective work or periodical volume during one class term. There shall not be more than nine instances of such multiple copying for one course during one class term.

13 Fair Use Guidelines Video: up to 10 percent or 3 minutes, whichever is less, of materials from a video work Text material: up to 10 percent or 1,000 words, whichever is less, from a copyrighted work. Music: 10 percent or 30 seconds, whichever is less Photographs and other illustrations: no more than five images by an artist or photographer may be used. For images from a collection, the limit is 10 percent or 15 images, whichever is less.

14 Works in Public Domain Works in public domain include those whose copyright has expired, or those whose author has expressly declared to be in the public domain. Federal law now states that all works created on or after January 1, 1978, have copyrights that last until fifty years after the death of the author. A work in the public domain may be distributed freely in both electronic and print form.

15 Linking to Copyrighted Materials Building links to copyrighted materials should be both legal and moral, provided that the owner has not explicitly asked you not to link to it. If you include a description of the contents of the page, you should also include the name of the author or the owner of the page. [source: Cunningham & Billingsley(2003) Curriculum Web.]

16 10 Big Myths About Copyright (1) “If it doesn’t have a copyright notice, it’s not copyrighted.” After April 1, 1989, everything created privately and originally is copyrighted and protected Correct form of a notice Copyright [dates] by [author/owner] You can use © instead of “Copyright” but © has never given legal force.

17 10 Big Myths About Copyright II (2) If I don’t charge for it, it’s not a violation.” False. It’s a violation if you give it away because it may hurt the commercial value of the property. An exception is for personal copying of music.

18 10 Big Myths About Copyright III (3) “If it’s posted to Usenet it’s in the public domain.” False Unless the author explicitly mentions that “I grant this to the public domain.” If you abandon rights for work put in the public domain, other people can even modify and put their name on it.

19 10 Big Myths About Copyright IV (4) “My posting was jut fair use!” Copyright law doesn’t block your freedom to express your own works -- only the ability to express other people’s. Inclusion of text in Usenet follow-ups is for commentary and reply, and it doesn’t damage the commercial value of the original posting (if it has any) and as such it is fair use.

20 10 Big Myths About Copyright V (5) “If you don’t defend your copyright you lose it.” -- “Somebody has that name copyrighted!” False Copyright is effectively never lost, unless explicitly given away. Names cannot be copyrighted but can be trade marked. Do not use somebody else’s trademark in a way that would steal the value of the mark, or which might allow you to profit from the mark’s good name.

21 10 Big Myths About Copyright VI (6) “If I make up my own stories, but base them on another work, my new work belongs to me.” False Copyright law stipulates that “derivative works” -- works based or derived from another copyrighted work -- is the exclusive province of the owner of the original work. Exceptions can be made for criticism and parody.

22 10 Big Myths About Copyright VII (7) “They can’t get me, defendants in court have powerful rights!” Copyright law is civil law. You get sued for copyright violation but not charged with a crime. A judge or jury decides on the set of evidence presented (8) “Oh, so copyright violation isn’t a crime or anything?” Recent USA commercial copyright violation involving more than 10 copies and value over $2,500 was made a felony.

23 10 Big Myths About Copyright IX (9) “It doesn’t hurt anybody -- in fact it’s free advertising.” It’s up to the owner to decide if they want the free ads or not. (10) “They ed me a copy, so I can post it.” To have a copy is not to have the copyright. Always ask first. (11) “So I can’t ever reproduce anything?” Two main purposes of copyright: (a) The protection of the author’s right to obtain commercial benefit from valuable work, and (b) the protection of the author’s general right to control how a work is issued. Use with caution Source: Templeton, Brad, 10 Big Myths about copyright explained [Online]. Available: (date)

24 References UST  Fair Use Guidelines for Educational Multimedia, alproperty/ccmcguid.htm alproperty/ccmcguid.htm  Templeton, Brad, 10 Big Myths about copyright explained [Online]. Available: html html