U.S. copyright law includes five exclusive rights, but educators can use copyrighted works under the fair use practice.
With headlines about tough copyright rulings fresh in their minds, educators across the nation might hesitate when it comes to using copyrighted material in their lessons or sharing copyrighted works with students.
But according to the American Library Association (ALA), educators should not worry about using such material to boost student knowledge if it falls under the scope of fair use.
The original and intended purpose of copyright law is to promote learning and the dissemination of knowledge, said Carrie Russell, director of the library association’s Program on Public Access to Information. “The copyright law was just as important to them as the post office,” she said, adding that the founding fathers wanted to ensure that the new democracy was well-functioning and that people had access to valuable information.
U.S. copyright law includes five exclusive rights: reproduction, distribution, derivative works, public performance, and public display. Creators of copyrighted works have a limited monopoly on those works, meaning they are the only ones able to profit from or sell their works, for a particular period of time under certain conditions. Currently, the “time limit” on copyright is defined as a lifetime plus 70 years.
One important part of copyright law is idea versus expression, Russell said. A person can’t obtain protection of an idea unless that idea is expressed in an original way.
(Next page: How to determine fair use)
U.S. copyright rules are often confused with other intellectual property protections, such as patents, trademarks, and trade secrets; contract law and licensing; fair use guidelines; and plagiarism.
Plagiarism in particular confuses people, because a person can infringe on copyright and plagiarize a work at the same time, or can do one or the other separately.
For instance, Russell said, if a person takes a work and copies and sells it, that person is infringing on U.S. copyright law. But if the person also claims to have written the work, he or she is plagiarizing as well.
When it comes to copyright rules, fair use is perhaps the most important thing for all librarians to know. It is unlikely, Russell said, that teachers or librarians would be taken to court for copyright infringement—although it still could happen—because Section 504(c)(2) limits statutory damages for alleged copyright infringers who work at a nonprofit educational institution.
Fair use guidelines for different types of works include:
Motion media: Up to 10 percent or 3 minutes, whichever is less, of a single copyrighted motion media work.
Text material: Up to 10 percent or 1,000 words, whichever is less, of a single copyrighted work of text.
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 a single anthology. In longer poems, the 250-word limit still applies, plus no more than three excerpts by one poet or five excerpts by different poets from a single anthology may be used.
Music, lyrics, and music video: Up to 10 percent, but no more than 30 seconds of music and lyrics from a single musical work. Any alterations of a musical work shall not change the basic melody or the fundamental character of the work. For example, a music instructor could use a piece of music and change the rhythm or emphasis on certain instruments to show how this would alter the music. However, the basic melody still must be recognizable.
The fair use doctrine includes four factors.
Purpose of the use: Why do you want to use a copyrighted work? Educators should determine if the use is nonprofit and educational or for-profit and commercial.
Nature of the publication: What is the material the educator is using? Is the material published and already available in the marketplace, or is it something that has never been public, such as unpublished diaries? It is less likely that the use of unpublished materials will be considered fair use, because unpublished works are more protected. Traditionally, courts have rules that works such as motion pictures or music are more creative and deserve more copyright protection than something such as a newspaper article, which is composed of facts.
: How much of the work are you using? If an educator uses a large portion of the work, it is likely less of a fair use case than if he or she uses a smaller portion. However, in some cases, using an entire work is considered fair use.
Effect on the market: What economic harm are you or aren’t you causing to the rights holder? Russell used a school workbook publisher as an example. If a teacher purchases one workbook and makes 50 copies for students, that negatively affects the workbook publisher, who depends on the sale of a large number of workbooks, and so is likely not considered fair use.
Various copyright code exceptions do apply to classroom and educator use. Section 108 allows libraries and archives to make copies for library users, interlibrary loan, replacement, and preservation. Section 109 allows owners of locally acquired copies the right to distribute that copy (library lending, used book stores, garage sales, etc.). Section 110 allows teachers to display or perform works in the face-to-face classroom and in the digital or distance education classroom via digital networks. Questions remain about how this applies to streaming media, however, especially after the AIME vs. UCLA case was dismissed.
Section 117 lets the owner of a software program make a back-up copy, and Section 121 allows for the creation of accessible copies for people with disabilities.
Russell urged librarians to communicate with teachers and students, and approach copyright issues with a look at what educators and students are allowed to do, as opposed to a look at what they are not allowed to do—presenting positives before negatives often makes people more willing to listen and learn, she said.