1. Copyright Law and "Fair Use"
Copyright Chaos
An Educator's Guide to
Copyright Law and "Fair Use"
Presentation created for the
Intel® Teach to the Future program
by Judi Edman Yost
Institute of Computer Technology
Rev. 5/3/01

2. What is Copyright?
“The exclusive right to produce or reproduce (copy), to perform in public, or to publish an original literary or artistic work.” Duhaime's Law Dictionary
Almost everything created privately and originally after April 1, 1989 is copyrighted and protected whether it has a notice or not.

3. What is not copyrighted?
Logical, comprehensive compilations (such as the telephone book)
Unoriginal reprints of public domain works
Materials or reprints of materials in the public domain (all prior to 1923; most between ; additional information at
Freeware (not shareware)
Most U.S. government materials (some items created by contractors for the government might be copyrighted)
Facts
Ideas, processes, methods, and systems described in copyrighted materials

4. But…But...
Besides items on the previous list, if something is on the Web or posted to Usenet, it does not mean it is not copyright protected.
Even if something is sent to you via , it does not mean it is free for you to use.
You should assume a work is copyrighted and may not be copied, unless you know otherwise.

5. However...
Educators get a break
with a "fair use" clause

6. What is “fair use”?
Sec. 107 of the Fair Use Provision of the Copyright Act states:
“Limitations on exclusive right: 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 phonorecords or by any other means specified by 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.”

7. determine whether using
There are four factors
that will help
determine whether using
a copyrighted work
is "fair use."

8. A multimedia project that uses copyrighted material is more likely
“In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -
the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes...”
A multimedia project that uses
copyrighted material is more likely
to fall under "fair use"
if it is for non-profit,
educational purposes

9. Some original works are more worthy of
“In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -
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;
Interpretation
of Facts
vs.
Creative
Some original works are
more worthy of
copyright protection than others...

10. using only what is "necessary"
“In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -
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
Consideration of
quantity & quality...
using only what is "necessary"

11. Does the copying harm the market for the original work?
“In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -
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 or value of the copyrighted work.”
Does the copying harm the market
for the original work?
Is the original work
losing potential money?

12. So it would seem that it’s “fair use” if…
The copying is for educational use;
The original material is mainly facts and is published;
You use portions to make your point, not whole sections; and
You’re not taking potential sales away from the original
You’re not providing copies just so your students don’t have to pay for the books (or original source materials).

13. Seems simple…right? Not exactly…
So between , a group of publishers and educators gathered to agree to more specific guidelines so educators won’t be sued for copyright infringement when they were thinking their copying was “fair use.”

14. for Educational Multimedia
The result was...
Fair Use Guidelines
for Educational Multimedia

15. Fair Use Guidelines for Educational Multimedia
The Fair Use Guidelines for Educational Multimedia is not a legal document, but only an interpretation of the Copyright Act of 1976 by CONFU, a group of educational users and copyright owners (who obviously have a stake in this interpretation).

16. Fair Use Guidelines for Educational Multimedia
Although the guidelines have no legal binding, on Sept. 27, 1996, Subcommittee on Courts and Intellectual Property, Committee on the Judiciary, U. S. House of Representatives issued a non-legislative report acknowledging the guidelines.
The Fair Use Guidelines for Educational Multimedia only applies to educators who produce multimedia.

17. To make things more complicated…
In late April, 1997, Bruce Lehman, Commissioner of Patents and Trademarks, publicly stated that the Proposed Guidelines negotiated by CONFU participants had failed to achieve consensus support.
However, proponents say the multimedia guidelines are finished and ready to use.

18. So what does this all mean?
There is no real line between fair use and unfair use.
The nature of the disagreement over the Guidelines means that the Guidelines technically cannot be considered “litigation free” if you follow them.

19. And if you use the Guidelines...
You may be undercutting your rights to a more expansive scope of fair use that may be perfectly legal.
On the other hand, these conservative Guidelines are not 100% guaranteed to be within the scope of “fair use.”
…However, they may still be a good place to start.
…Really

20. So what are
these guidelines?

21. Students & Educators have Separate Guidelines
Students may:
incorporate portions of lawfully acquired copyrighted works when producing their own educational multimedia projects for a specific course;
perform and display their own projects in the course for which they were created; and
retain them in their own portfolios as examples of their academic work for later personal uses such as job and school interviews.

22. Educator Guidelines Educators may:
Incorporate portions of lawfully acquired copyrighted works when producing educational multimedia projects to support their teaching needs; and
Present their projects in the following situations:
Face-to-face instruction,
Assigned to students for directed self-study,
Remote instruction (with limitations).

23. Educator Guidelines
Educators may retain their projects indefinitely for the following purposes:
To perform or display in presentations to their peers, for example, at workshops and conferences
To retain in their personal portfolios for personal uses such as promotion or job interviews

24. Educator Guidelines 2 Year Limitation
Educators may use their projects for teaching, for a period of up to two years after the first instructional use with a class.
Instructional use beyond that time period requires permission for each copyrighted portion incorporated in the production.
2 Year
Limitation

25. Limitations on Size/Portions for both Educators and Students
Motion Media
Up to 10% or 3 minutes, whichever is less, of a single copyrighted motion media work.
Text Material
Up to 10% or 1000 words, whichever is less, of a single copyrighted work of text.

26. Limitations on Size/Portions
Text Material - Poems
An entire poem of less than 250 words,
but no more than three poems by one poet,
or five poems by different poets from any single anthology.
In poems of greater length:
up to 250 words,
but no more than three excerpts by a single poet,
or five excerpts by different poets from a single anthology.
Poetry

27. Limitations on Size/Portions
Music, Lyrics, and Music Video
Up to 10%
but no more than 30 seconds of music and lyrics from a single musical work
Any alterations to a musical work shall not change the basic melody or the fundamental character of the work

28. Limitations on Size/Portions
Illustrations and Photographs:
A photograph or illustration may be used in its entirety.
No more than 5 images by an artist or photographer.
Not more than 10% or 15 images, whichever is less, from a single published collected work.

29. Limitations on Size/Portions
Numerical Data Sets
Up to 10% or 2500 fields or cell entries, whichever is less, from a database or data table.
A field entry is a specific item of information in a record of a database file.
A cell entry is the intersection where a row and a column meet on a spreadsheet.

30. Copying and Distribution Limitations
Including the original, only a limited number of copies may be made of a project:
Two use copies, one of which may be placed on reserve.
An additional copy for preservation to be used or copied only to replace a use copy that has been lost, stolen, or damaged.
For jointly created projects, each principal creator may retain one copy but only as permitted by use and time restraints previously outlined.

31. Attribution & Acknowledgement
Credit the sources and display the copyright notice © and copyright ownership information for all incorporated works including those prepared under fair use.
Copyright ownership information includes:
© (the copyright notice)
year of first publication
name of the copyright holder
e.g., © 2001 Company/Person’s Name

32. Attribution & Acknowledgement
Crediting the source:
Give a full bibliographic description where available (including author, title, publisher, and place and date of publication).
The credit and copyright notice information may be combined and shown in a separate section of the educational multimedia project…Except for images:
Copyright notice and the name of the creator must be incorporated into the image so that it appears on the screen when the image is viewed.

33. Notice of Use Restrictions
The opening screen of a program and any accompanying print material must include a notice that:
Certain materials are included under the fair use exemption of the U.S. Copyright Law;
Materials are included in accordance with the multimedia fair use guidelines; and
Materials are restricted from further use.

34. Future Uses Beyond Fair Use
If there is a possibility that a project could result in broader dissemination [for instance, publication on the Internet], whether or not as a commercial product, individuals should take steps to obtain permissions during the development process rather than waiting until after completion of the project.

35. Rules Of Thumb For Coursepacks
Guidelines condensed from the University of Texas
Limit coursepack materials to
single chapters
single articles from a journal issue
several charts, graphs or illustrations
other similarly small parts of a work.
Include
any copyright notice on the original
appropriate citations and attributions to the source.
Obtain permission for materials that will be used repeatedly by the same instructor for the same class.

36. Rules Of Thumb For Coursepacks
Guidelines from the University of Texas
Multiple copies must conform to previous “fair use” rules (not to exceed, in any event, more than one copy per student in a course)
Plus the following restrictions:
One chart, graph, diagram, drawing, cartoon or picture per book or per periodical issue
There shall not be more than nine instances of such multiple copying for one course during one class term.

37. Rules Of Thumb For Coursepacks
Guidelines from the University of Texas
Restrictions (continued):
There shall be no copying of or from works intended to be "consumable" in the course of study or of teaching. These include workbooks, exercises, standardized tests and test booklets and answer sheets and like consumable material.
Copying may not be used to create or to replace or substitute for anthologies, compilations or collective works.
Condensed from the Guidelines For Classroom Copying of Books and Periodicals by the University of Texas

38. Obtaining Permission When You Need it
Getting Permission
Sample Letter Requesting Permission
Copyright Permission Form Letter
Obtaining Permissions

39. Remember... These are guidelines, not laws.
If you feel that any of these guidelines are too restrictive and you want to follow your own “instincts” about what is “fair use,” you are free to do so (within your district guidelines, of course).
However, realize that the further you venture from these guidelines, the more likely you are to be outside of “fair use.”

40. What About Software? Use of software does not fall under fair use!
Public or private educational institutions are not exempt from the software copyright laws.
When you purchase software, you are only purchasing a license to use the software – you don’t own it.

41. But I can make copies for my own use…right?
Anyone who purchases a license for a single copy of software has the right to load it onto a single computer and to make another copy "for archival purposes only."
Any other use than “archival” must be approved by the copyright owner.

42. Unless you have specific permission from the copyright owner…
It is illegal to
Purchase a single user license and load it onto multiple computers or a server,
Download copyrighted software from the Internet or bulletin boards, or
Load the software your school purchased onto your computer at home.

43. What About Shareware?
Shareware is software that is passed out freely for evaluation purposes only.
You are allowed to try it out before you pay for it.
Evaluation time is usually 30 days.
If you wish to keep the software program, then you must pay to keep your evaluation copy.
Shareware is often fairly inexpensive.

44. Freeware is Free…Right?
Freeware is also covered by copyright laws and subject to the conditions defined by the holder of the copyright.
You can distribute freeware, but not make any money on it.
You can modify and build other software programs based on the freeware, but those “new” programs cannot be sold for profit.

45. Only Public Domain Software is Truly “Free”
Copyright rights have been relinquished.
There are no distribution restrictions.
You can modify the original software and build new software.
You can sell your modified software.

46. Why Should Teachers Follow Software Copyright Laws?
You should set a good example for your students.
Future software can only be developed for a reasonable price if the software firm/developer receives payment for its efforts.
And then there is the matter of penalties...

47. Penalties
For the unauthorized use and copying of software, penalties include:
Fines up to the actual amount of damages to the copyright holder, or
Statutory damages up to $100,000 per infringed work where the court finds there was willful infringement.
And if guilty under the criminal sections of the law:
Up to one year imprisonment and/or
Fines up to $25,000

48. Penalties
For the unauthorized reproduction or distribution of 10 or more copies of software with a total retail value of $2500, penalties include:
Imprisonment for up to six years, and/or
Fines up to $250,000
Under the NET Act, signed into law on December 16, 1997, a person who willfully infringes on copyrighted material worth at least $1,000 could be subject to criminal prosecution, even if he/she does not profit from the activity.

49. Another Reason to Follow Software Copyright Law...
You don’t need to use illegally-obtained software because…
Many software firms offer special sales arrangements to schools and to teachers for their home use, including:
Educational discounts for one copy and/or additional copies of their software programs,
Reduced-priced lab packs (a quantity of programs sold together), and/or
Site license agreements (an arrangement that allows a school to make a specified number of copies for one location at a fixed price).

50. There's no ambiguity on this one. . .
Don't make illegal copies
of software!

51. If you look at Nothing Else...
Check out the web site created by Georgia Harper, the manager of the Intellectual Property Section of the Office of General Counsel for the University of Texas System. This web site gives a clear introduction on Fair Use, plus information on liability, whether you need permission to copy, the University of Texas’ “Rules of Thumb,” clear examples in the “Four-Factor Test,” and how to get permission when needed.
Fair Use Of Copyrighted Materials

52. Sources Consulted and For More Information...
Fair Use Guidelines For Educational Multimedia Complete document provided by Georgia Harper; prepared by the Educational Multimedia Fair Use Guidelines Development Committee, July 17,
Fair Use Of Copyrighted Materials by Georgia Harper, University of Texas

53. Sources Consulted and For More Information...
Fair Use Guidelines For Educational Multimedia: Background and Summary by Chris Dalziel
The Copyright Website by Benedict O’Mahoney
Copyright Law in the Electronic Environment by Georgia Harper, University of Texas

54. Sources Consulted and For More Information...
Highlights of the Fair Use Guidelines for Educational Multimedia by Stan Diamond and deg farrelly
10 Big Myths about Copyright Explained by Brad Templeton
Duhaime's Law Dictionary by Lloyd Duhaime

55. Other Resources
Rules Of Thumb For Digitizing And Using Others' Works In Multimedia Materials For Educational Purposes by Georgia Harper, University of Texas
Rules Of Thumb For Coursepacks by Georgia Harper, University of Texas
A Proposal For Educational Fair Use Guidelines For Digital Images by Georgia Harper, University of Texas m

56. Other Resources
And if you still can’t get enough of this subject, check out other sites at:
List of Links to Other Copyright Sites by Georgia Harper, University of Texas

57. Information on Software Copyright
Software Use and the Law by Software & Information Industry Association (SIIA)
Digital Anarchy: Part One of an Analysis of Software Piracy by David Laprad
The Federation Against Software Theft (FAST) (United Kingdom organization)

58. Information on Software Copyright
Questions and Answers about Software Piracy by Software & Information Industry Association (SIIA).
Commercial, Shareware, Freeware & Public Domain Software by SIIA
Permissible Copying of Software by Georgia Harper, University of Texas

59. Copyright is now
perfectly clear...
Right?

60. This presentation is copyrighted by Intel.
However, it may be used, with copyright notices intact, for not-for-profit, educational purposes.