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Home : Research Protections : Outreach & Publications : Publications : ORP Newsletter : 2004 Issues : Issue 5 (12/2004 - 01/2005) : Copyright and Educational Use
Copyright and Educational Use - What Can and Cannot be Done?Fair Use Provision 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 ProvisionIf 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:
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 AnswersQuestion: 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:
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 ActThe 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 TEACH Act provides some specific guidelines for the use of copyrighted materials online or in a distance education transmission, e.g., video conferencing:
Additional conditions faculty must keep in mind related to using copyrighted materials are:
Scenarios regarding the TEACH ActA 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 ClearanceWhere 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.
ReferencesLindsay, 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 |