Copyright and Fair Use

Copyright law (Title 17 of the United States Code) is dense and vague and can be difficult to understand.  The doctrines and acts associated with copyright, such as Fair Use, and the TEACH Act are equally confusing.  Nonetheless, copyright laws must be followed, and ignorance of the law is not a defense.  Publishers and groups affiliated with publishers are becoming very litigious. Our use of copyrighted materials is being monitored and in turn, in response to what publishers see as a disregard for the laws protecting their intellectual property, publishers and groups affiliated with them are filing lawsuits.  This is especially true for higher education, with faculty members particularly at risk of being sued.

 In response to these concerns, Library Associate Dean Tracey Mayfield has created an outstanding resource for faculty and others wishing to know more about copyright law and how to "be legal."  This resource is in an easy-to-use format on the Library's website. It includes information and tools such as:

• Compliance Guidelines for Faculty
• Common Scenarios that depict real-life situations and guidance on how to handle them
• Links to tools such as the Fair Use Checklist
• Information on the actual Copyright law itself and on Fair Use
• Where to get help

The intent of the website is to provide enough information without being overwhelming.  The website will continue to grow and change over time as copyright laws are tested in US courts.  Anyone with suggestions for added content may contact Calvin Gross. 

Faculty and educational institutions are given some latitude under the Fair Use Doctrine in using materials protected by copyright laws for educational purposes; however, laws must be followed.  A faculty member who does not follow the legal parameters of copyright will incur liability exposure. 

Purpose: All members of the Berea College community must be aware of and adhere to the provisions of the United States Copyright Law. We have a legal obligation to honor and abide by copyright rules when we use protected works in support of the academic mission.

Obligations: Berea College is obligated to communicate this policy to the members of the Berea College community. All members, in particular the instructional faculty, are obligated to be aware of these policies and guidelines and to abide by them.

Definition of copyright: “Copyright is a type of intellectual property that protects original works of authorship as soon as an author fixes the work in a tangible form of expression. In copyright law, there are a lot of different types of works, including paintings, photographs, illustrations, musical compositions, sound recordings, computer programs, books, poems, blog posts, movies, architectural works, plays, and so much more!” https://www.copyright.gov 

Copyright is a form of intellectual property that protects original works of authorship. In today’s global digital economy, artists, authors, and companies have unprecedented opportunities to disseminate their creative works and products to a worldwide audience. They also face daunting challenges from infringement and piracy. To take advantage of these opportunities and to respond to the challenges, creators and creative industries depend more than ever on their ability to protect and enforce their copyrights. https://www.uspto.gov

Definition of Fair Use: Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use. Section 107 calls for consideration of the following four factors in evaluating a question of fair use:

Photocopying Guidelines for Teaching and Research: For our purposes, we will concentrate on concerns as to fair use of copyrighted materials in teaching and instruction and for research. First and foremost, determine if a work is in the public domain.

Works in the Public Domain: If a work is in the public domain, one has unrestricted copying privileges.

These include several categories of materials:

1. Published works that were never copyrighted.
2. Works published before 1923.
3. Works published before 1989 which do not contain a notice of copyright unless that work “has been rescued” subsequently and now is copyrighted. Any work published after March 1, 1989, is protected by copyright even if no notice of copyright is present.
4. Published works with expired copyrights: Copyrights dated 75 years or more prior to the current year may or may not have expired, depending on whether the copyright owner renewed the copyright after the first term of protection.
5. Government publications.

Works not in the public domain: Ordinarily, copying copyrighted material without the permission of the copyright owner is a violation of the owner’s copyright. The copyright law, however, creates limited exemptions to allow copying for face-to-face teaching or “fair use.” Under fair use, a teacher or researcher is allowed a limited amount of copying. There are some works which copying is completely unrestricted. There are other materials which copying is always forbidden.

There is no clear-cut test for evaluating fair use and not all educational uses are fair uses. Furthermore, the rules apply wherever the copying is done; in other words, using on-campus or off-campus copy shops, the same guidelines apply.

How do I know if my intended educational use is a fair use?

As a guideline only, you may use the following essential factors to help determine if a use is fair use. If all four of these guidelines are met, you can feel secure that you meet fair use. However, if only a few are met, it does not necessarily mean you are in violation of copyright law.

1. What is the purpose of the use? Educational purposes and single copies for non-profit or personal use are more likely fair use. Uses for commercial purposes would require permission.

2. What is the nature of the material? Factual, scientific information, or historical data favor fair use. Creative fiction, unpublished works, music, novels, films, plays would most likely require permission.

3. How much of the work will be used? If the amount is a small proportion of the work, it is more likely to be considered a fair use. A substantial portion or central portion of the work would require permission.

4. What is the effect of the use of the copied materials on the market of the original work? If the use would deny the owner of the copyright his/her due, then the use would not be deemed a fair use. If the user owns or has purchased the original work and this is one of few copies made which does not affect the potential market for the original, this would be an application of fair use.

Fair Use and the digital works Moodle: On November 2, 2002, the "Technology, Education and Copyright Harmonization Act" (aka the TEACH Act), was signed into law by President Bush. This act provides relatively specific guidelines as to what uses are and are not fair uses with respect to

copyrighted materials and the use of such on-line instructional programs as Blackboard. The TEACH Act is an effort more clearly to define how digital works may be used in online education. In order for the TEACH Act to apply, one must meet all the following criteria:

1. The institution must be a nonprofit accredited educational institution or a governmental agency.
2. The institution has a policy on the use of copyrighted materials.
3. The institution provides accurate information to faculty, students, and staff about copyright.
4. The institution’s systems will not interfere with technological controls within the materials you want to use.
5. The materials you want to use are specifically for students in your class.
6. Only those students will have access to the materials.
7. The materials will be provided at your direction during the relevant lesson.
8. The materials are directly related and of material assistance to your teaching content.
9. Your class is part of the offerings of the institution.
10. You will include a notice that the materials are protected by copyright.
11. You will use technology that reasonably limits the students' ability to retain or further distribute the materials.
12. You will make the materials available to the students only for a period that is relevant to the context of a class session.
13. You will store the materials on a secure server and transmit them only as permitted by this law.
14. You will not make any copies other than the ones you need to make the transmission.
15. The materials are of the proper type and amount the law authorizes:
    1. Entire performances of nondramatic literary and musical works
    2. Reasonable and limited parts of a dramatic literary, musical, or audiovisual works
    3. Displays of other works, such as images, in amounts like typical displays in face-to-face teaching.
16. The materials are not among those the law specifically excludes from its coverage:
    1. Materials specifically marketed for classroom use for digital distance education.
    2. Copies you know or should know are illegal.
    3. Textbooks, course packs, electronic reserves and similar materials typically purchased individually by the students for independent review outside the classroom or class session.
17. If you are using an analog original, you checked before digitizing it to be sure:
    1. You copied only the amount that you are authorized to transmit.
    2. There is no digital copy of the work available except with technological protections that prevent your using it for the class in the way the statute authorizes.

In summary, you may assume that you meet the general provisions of the TEACH ACT if you are using Moodle in your class, meet the provisions of the policy, and you abide ty the other specific provisions that relate to the type of materials used.