Copyright and Fair Use in Distance Education shops/copyquiz.html

What is Copyright? Copyright protects: original works of authorship that are fixed in a tangible form of expression Copyright is secured automatically upon creation of the work

What Works are Protected by Copyright? Copyrightable works include: Papers, books, musical, and dramatic works pictorial, graphic, and sculptural works pantomimes and choreographic works motion pictures and sound recordings architectural works virtually any form of human “expression”

What is not Protected by Copyright? works that have not been fixed titles, short phrases ideas, facts, principles works consisting entirely of information that is common property – in the “public domain” works that contain no original authorship

What Does Copyright Protect? Copyright provides the author the following exclusive rights: to reproduce the work to prepare derivative works to distribute copies of the work to the public to perform the work publicly to display the work publicly in the case of sound recordings, to perform the work publicly by means of a digital audio transmission

How Long does Protection Last? Works created after Jan. 1, 1978 author’s life plus 70 years Works created and published before Jan. 1, The situation is complicated but, basically: If copyright was properly renewed, only works created before 1923 have entered into the public domain

When is a Work Not Protected by Copyright? Copyright may have expired Copyright may have been “lost” through failure to comply with certain technical requirements May be a public domain work from the inception (example: federal government works)

Copyright Exemptions Applicable to Educational Instruction Fair Use (Section 107) Section 110 Exemptions Section 110(1) exemption for face-to-face teaching activities Section 110(2) exemption for “distance education”

Fair Use -- The Statute Section 107 of the copyright statute provides that the “fair use” of a copyrighted work for purposes such as teaching, scholarship, and research is not an infringement of copyright.

Fair Use -- The Statute (continued) In determining whether a use is “fair” the statute identifies: 1. the purpose and character of the use, including whether such use is commercial or is for nonprofit educational purposes 2. the nature of the copyrighted work 3. the amount and substantiality of the portion used 4. the effect of the use on the potential market for the copyrighted work.

Factor 1--the Character of the Use Case law and statutory language favor nonprofit, educational, and personal uses Case law and statutory language disfavor commercial uses “Transformative” uses for such things as criticism, commentary, newsreporting, and parody increase the likelihood that a use may be considered “fair.”

Factors 2 and 3 -- The Nature of the Work and the Amount Used Characteristics favoring a finding of fair use based on the nature of the work the work is primarily “factual” as opposed to “expressive” the work has been published amount and substantiality of the portion used

What about e-learning? Ok, so fair use is ambiguous Well, what about guidelines? Recently,the Conference on Fair Use (“CONFU”) drafted various “guidelines” for the next generation of technologies: educational multimedia digital imaging distance learning These were not formally adopted, but have been endorsed by some organizations

1996 Educational Multimedia Guidelines When Applicable: face-to-face instruction assigned to students for directed self-study for remote instruction provided over a secure electronic network in real time, or for directed self-study provided there are technological limitations on access and that the technology prevents the making of copies of the copyrighted material

Limitations Time limit -- two years after the first instructional use within a class

16 Guidelines re: Fair Use in Distance Learning 1996 CONFU (Conference on Fair Use) Guidelines Covers live interactive distance learning with students at remote locations (not classrooms) Covers faculty instruction recorded without students present for later transmission BUT doesn’t cover asynchronous delivery over computer network Applies to nonprofit ed institutions in their nonprofit ed and research activities Works using copyrighted material must be integrated into course and part of systematic instruction, directly related to and of material assistance to teaching content of transmission— NOT ENTERTAINMENT

Limitations (continued) Portion limitations motion media -- up to 10 % or 3 minutes, whichever is less text -- up to 10% or 1000 words, whichever is less poem -- up to 250 words but also limited to: three poems or portions of poems by one poet five poems or portions by different poets from a single anthology

Portion Limitations (cont’d) music, lyrics, and music video -- up to 10 % or 30 seconds, whichever is less photos and illustrations -- no more than five images by an artist or photographer, up to 10 % or 15 images, whichever is less, from a collection database information -- up to 10% or 2500 fields or cell entries, whichever is less

CONFU Guidelines (con’t) Secure system Technological limitations on access (PIN, password, smartcard) Reception at place that can be controlled by the eligible institution Institution must use technological means to prevent copying of copyrighted work Only one performance per work for course Can record for later viewing by students for 15 days, in controlled setting; must prevent copying

20 Guidelines (con’t) Technology MUST prevent making copies of copyrighted material (e.g., streaming), OR ELSE must cease access to projects over network after 15 days, with a copy placed on reserve in library for enrolled students’ use; students must be informed that copying of project is not allowed.

21 Guidelines (con’t) Need permission for any commercial use of project, copying or use beyond stated limits, or use over electronic networks beyond stated distance ed Must credit source of copyrighted works and include full bibliographic description where available, along with copyright notice Must include on opening screen, notice that certain copyrighted materials are included in project under “fair use,” in accordance with guidelines, and are restricted from further use

Face-to-Face Teaching Copyright Exemption Section 110(1) permits the “performance” or “display” of copyrighted works in the course of face- to-face teaching activities. Exemption applies to all types of copyrightable works.

Face-to-Face Teaching Copyright Exemption -- Examples act out a drama read a poem play or sing a musical work show a motion picture show an interactive multimedia cd-rom display text or pictorial material by a projector

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