Copyright and Educational Use - What Can and Cannot be Done?

Fair Use Provision
Questions and Answers
TEACH Act
Scenarios regarding the TEACH Act
Obtaining Copyright Clearance
References

Most sources that are used to enhance educational classes are protected by copyright - literary works, video recordings, audio recordings, photographs, recorded music and musical scores, dramatic scripts, artwork, etc. Works of this nature are protected by copyright law unless placed in the public domain, which means that one must carefully consider how and when such materials can be used in teaching. Respect for copyright ownership is important first because copyright protects the intellectual property rights of the creator or distributor and secondly because abuse of copyright protections can result in individual and institutional penalties.

Fair Use Provision

If everything is protected, then how can these works be used for teaching a class? The law does allow for some use of copyrighted work without permission under what is called "Fair Use;" however, one must pay attention to the parameters around what might be considered fair use. Fair use encompasses four factors:

• The purpose of the use - generally commercial vs. non-profit educational use
• The nature of the work - how creative vs. factual the work is
• The amount and substantiality of the portion used in relation to the work as a whole
• The effect of the use on the market or potential market value of the work

Each of these four factors should be carefully considered as one evaluates whether a use can be considered fair use. Often people believe that any educational use falls within fair use, but this is not always the case. First, although the fair use provisions apply to all educational delivery formats, additional guidelines have been implemented (the TEACH Act) that specifically address use in a distance education environment (these will be discussed below). Second, the use of the material must truly support educational advancement and not simply be an enhancement. For example, if a professor were to produce a video containing photographic images to illustrate various photographic styles, use of the images would be considered fair use. However, if the professor added a musical recording to the background of the video, the use of the music would likely not be considered fair use because it has been added for entertainment value and not for educational purposes (Lindsay, 2003). The professor could use a small clip (about 30 seconds) of the recording for his presentation, but he could not use the entire piece. Several scenarios for the use of copyrighted works under fair use terms are presented below.

Questions and Answers

Question: Can a professor distribute a copy of a journal article to each student in her class without getting permission from the copyright holder?

Answer: Generally, yes, but some restrictions can apply. The use must be "spontaneous" and "brief." Spontaneity means the decision to use the publication and the time of use are too close to reasonably receive permission.

Brevity is summarized as:

• Poetry (a) complete poem of less than 250 words, or (b) an excerpt of a longer poem that is not longer than 250 words
• Prose (a) complete work is less than 2500 words, or (b) an excerpt no longer than 1000 words or 10% of the work, whichever is less
• Illustrations - one chart, diagram, drawing, graph, cartoon, or picture per book or per periodical issue
• Special works - works that combine text with illustrations, no more than 10% of the words in the text (Lindsay, 2003)

Thus, in the example of a journal article, the professor may make copies for her students as long as the article is less than 2500 words and she only plans to use it for a single semester. If she wants to use the same article in the following semester, she should seek copyright permission.

Question: Can a professor play a motion picture in his classroom?

Answer: Yes, unless the copy of the motion picture being shown is an illegal copy. The showing of the film must also be 1) done under the direction of the instructor, 2) directly related to the class content, 3) only available to students enrolled in the class, and 4) the students must not have to pay any fees to view the film.

Question: Can a professor place a copy of two chapters from a textbook in electronic library reserves for students in a class he is teaching?

Answer: This would constitute fair use, as two chapters from an entire textbook are generally not enough to impact the commercial opportunity of the publisher.

Question: What if in the above example the professor wanted to leave the copy in electronic reserves for each subsequent class he teaches in following semesters?

Answer: The professor should not continue to make the book chapters available in electronic reserves beyond the first semester's use. For the first use, he could claim spontaneous use. For any later semesters, however, use would no longer be spontaneous and copyright permission should be sought from the publisher.

TEACH Act

The TEACH Act has done a lot to help clarify how copyrighted materials may be used for educational purposes. Where previous sections of the Copyright Act placed restrictions on where copyrighted materials could be used for teaching, the TEACH Act provides significantly improved guidance for teaching that may move beyond the traditional classroom. In general, the TEACH Act allows:

• The use of any materials in a face-to-face classroom that relate to and support the subject being taught, regardless of how they are shown

The TEACH Act provides some specific guidelines for the use of copyrighted materials online or in a distance education transmission, e.g., video conferencing:

• Only "reasonable and limited" portions or clips of audiovisual or dramatic materials may be displayed.
• Entire performances of nondramatic literary works may be shown or displayed, e.g., poems or short stories.
• Entire performances of nondramatic musical works may be shown or displayed, e.g., any music other than opera, music videos, or musicals.
• A full image or a portion of an image may be used that compares to a use in a face-to-face classroom
• Students may be in any location and are not restricted to the classroom when viewing the material
• Works in analog format may be digitized if they are not already available in a digital format
• Distance education transmissions may be recorded, retained, and made available to students for a brief period of time (Lindsay, 2003).

Additional conditions faculty must keep in mind related to using copyrighted materials are:

• The copyrighted materials may only be used to teach students in a specific class
• Only students enrolled in the specific class may have access to the materials - if the materials are online they must be password protected through the use of a tool like ANGEL
• The materials must relate to the content being taught
• The class is a regular offering of the Penn State University
• The materials must contain a copyright notice clearly visible to the students
• Technologies must be used to reasonably limit the students' ability to retain (download) or further distribute the material
• The material should only be available as long as necessary to conduct the class
• The materials must be stored on a secure server, as through the use of ANGEL
• No copies will be made other than for backup purposes
• The amount used must be within the limits of the law (outlined above)

Scenarios regarding the TEACH Act

A few scenarios are presented below to help determine what is allowable according to the TEACH Act.

Question: Can a professor scan an article from a copyrighted journal and add it to his ANGEL course site?

Answer: Yes, the teacher allows such use because ANGEL is restricted by user name and password to Penn State users and the professor has the ability to restrict access further to students enrolled in his class, he is able to scan the article according to the TEACH Act.

Question: Can a professor give a presentation in the classroom that displays a series of photographs without obtaining permission for the use of each?

Answer: Yes. Fair use allows the professor to utilize the photographs for teaching purposes in his classroom.

Question: In the above scenario, can the professor transmit his classroom presentation to another campus location using a video conferencing system?

Answer: Yes, the TEACH Act allows the professor to transmit the materials to a group of enrolled students.

Obtaining Copyright Clearance

Where can one go to obtain copyright clearance to use a work? A few centralized options exist reducing the need to contact each copyright holder independently.

• Penn State's Copyright Clearance Office can help determine the need for copyright permission and help obtain permission from the appropriate sources. The office will secure copyright permission to create course packs.
  http://www.multimediaprint.psu.edu/copyright/
• Copyright Clearance Center (CCC) is an organization designed to help secure permission to copy text and print media. The CCC has obtained the rights to use millions of titles and will pursue others as needed.
  http://www.copyright.com; (978-750-8400)
• The Penn State libraries will ensure copyright is obtained when one requests a course reserve or electronic reserve so that each individual professor does not have to take on this responsibility.

References

Lindsay, Mark (2003). Copyright Law on Campus. Pullman Washington: Washington University Press.

Fair Use Guidelines for Educational Multimedia Established by Congress of the United States (http://www.libraries.psu.edu/mtss/fairuse/guidelines.html)

The Technology Education and Copyright Harmonization Act (TEACH Act) (http://tlt.its.psu.edu/dmd/teachact)

PSU Policy AD46: Policy Governing Copyright Clearance (covers copying of materials for in-class use)

PSU Policy AD20: Computer and Network Security (Section III)

Copyright and Fair Use Guidelines for Teachers
http://i.cmpnet.com/techlearning/pdf/db_area/archives/TL/2002/10/copyright_chart.pdf (PDF)