"Copyright." It's many things to publishers, it's a means to ensure a return on the creative dollar. To librarians, it's a guarantee to provide information that "promotes the sciences and useful arts." To educators, it's a pain in the neck.Unfortunately, copyright is a reality that educators must face in an era when digital technology makes it easy to steal intellectual property. And if research has it right, educators in general have a lot of ground to cover to become familiar with not only what copyright law restricts, but also what it allows in terms of that fuzzy little term, "fair use". http://www.stfrancis.edu/cid/copyrightbay/purpose.htm

Assignment: After reading this material on copyright, report to your instructor several examples of how the copyright laws are being abused by teachers and students in your school district.

The Issue

Educators sometimes duplicate materials or load software without giving regard to copyright restrictions. Taking someone's property without permission, stealing, deprives the creator/author of income or control to which he/she is entitled to; however, many educators claim that "fair use" gives them the right to use copyrighted materials without permission. Are they correct in this belief? Does fair use entitle educators to use copyrighted materials for educational purposes?

Educators must know and understand the law when it comes to fair use and copyright. There are certain instances when educators can legally use copyrighted materials for educational purposes, but fair use does not given them the right to steal. When it comes to copyright law and the application of fair use exceptions, ignorance is not bliss. Teachers must educate themselves and students to avoid costly mistakes.

Furthermore, students are expected to be honest and trustworthy, and teachers should also honor the law when it comes to fair use and copyright. Teachers should not only protect themselves from legal liability but should also model integrity and trustworthiness by knowing when and what may be copied for educational use.

Copyright Basics

According to Dictionary.com, copyright is "the legal right granted to an author, a composer, a playwright, a publisher, or a distributor to exclusive publication, production, sale, or distribution of a literary, musical, dramatic, or artistic work." "Copyright laws are based on the belief that anyone who creates an original, tangible work deserves to be compensated for that work, that compensation encourages more creative works, and that society as a whole benefits from the creative efforts of its members. Copyright laws, therefore, are designed to protect a creator's right to be compensated and to control how his or her work is used." http://www.education-world.com/a_curr/curr280a.shtml

According to Title 17 of the United States Code, copyrightable work must be tangible. An original work must be written down or recorded before it is protected by copyright. Copyrightable work must also be creative. Facts are not copyrightable, but a clever collection of facts might be. Ideas are not copyrightable but a particular expression of an idea probably is.

What Is or Isn't Copyright Protected?

An author/creator does not have to register a work or display the copyright symbol for the work to be protected by copyright law. Most everything is copyrighted if the work is original and in tangible form. If there is a doubt as to whether something is copyrighted, assume it is and ask permission to use it. According to the U.S. Copyright Office there is only a short list of works that are not copyrighted:

1. works that have not been fixed in a tangible form of expression

2. titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents

3. ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices -- as distinguished from a description, an explanation, or an illustration

4. works consisting entirely of information that is common property and contains no original authorship, such as standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources

Other tangible works that are not copyright protected, according to the U.S. Copyright Office, are works in the public domain. The public domain includes:

1. works published before January 1, 1923

2. works published between 1923 and 1978 that did not contain a valid copyright notice

3. works published between 1923 and 1978 for which the copyright was not renewed

4. works authored by employees of the federal government

5. works that the copyright owner has freely granted to the public domain.

The 1976 revision of the U.S. Copyright Act established that no works published after January 1, 1978, will pass into the public domain until at least 2048. Anonymous works are copyright protected until 95 years after publication. FAIR USE

According to http://www.fhsu.edu/forsyth_lib/copyright, Section 107 of U.S. Copyright Law "creates a limitation on copyright protection called fair use. It protects socially beneficial borrowings of copyrighted works. It is not permission to use all copyrighted works at will for education." There are four factors that determine whether educators, nonprofit organizations, news media, and researchers may legally copy materials without permission: purpose, nature, portion, and market impact (Fischer, Schimmel, & Stellman, 2003). Fair use requires weighing and balancing all four factors before reaching a conclusion.

Fair use is a flexible doctrine that Congress wants us to test and adapt for changing needs and circumstances. The law provides no clear and direct answers about the scope of fair use and its meaning in specific situations. Instead, we are compelled to return to the four factors and to reach creative and responsible conclusions about the lawfulness of our activities. Reasonable people will always differ widely on the applicability of fair use, but any reliable evaluation of fair use must depend upon a reasoned analysis of the four factors of fair use. The four factors also need not lean in one direction. If most factors lean in favor of fair use, the activity is allowed; if most lean the opposite direction, the action will not fit the fair-use exception and may require permission from the copyright owner. http://www.copyright.iupui.edu/highered.htm#purpose

1. purpose---works that are used for nonprofit educational purpose are more likely to be considered fair use

2. nature---works that are published, factual, and out of print are more likely to be considered fair use

3. portion-- small percentages of works are more likely to be considered fair use

4. market value-- market impact should be negligible. PRINTED MATERIALS

The Ad Hoc Committee of Educational Institutions and Organizations on Copyright Law Revision, the Author's League of America, Inc., and the Association of American Publishers, Inc. developed guidelines for educational copying. Teachers are allowed to make single copies of the following works for use in research or classroom instruction:

1. a single chapter from a book

2. a newspaper article or an article from a periodical

3. a short poem, short essay, or short story

4. a cartoon, graph, chart, diagram, drawing, or picture from a book, periodical, or newspaper.

Multiple copies can be made for classroom use if the number of copies do not exceed one copy per student in the class and as long as the copying meets the tests of brevity, spontaneity, and cumulative effect and each copy must include a copyright notice.

According to Fischer, Schimmel, and Stellman a definition of brevity includes:

1. an entire poem less than 250 words and no more than two pages long

2. an excerpt from a longer poem no more than 250 words

3. an article, essay, or story less than 2, 500 words

4. an excerpt from prose less than 1000 words or 10 percent of the works, whichever is less

5. one cartoon, chart, diagram, or picture from a book or periodical.

Fischer, Schimmel, and Stellman defines spontaneity as:

1. copying must be at the instance and inspiration of the teacher

2. the inspiration and decision to use the material must be so close in time that it would be unreasonable to request permission.

To meet the test of cumulative effect, Fischer, Schimmel, and Stellman report that:teachers are limited to copying material for only one course in the school in which the copies are made no more than one single essay, story, poem, or article, two excerpts from the same author, or more than three from the same collective work or periodical during one term may be copied there must not be more than nine instances of multiple copying for one course during one term. Consumable materials such as workbooks or answer sheets to standardized tests must not be made. Copies of works to take the place of an anthology are prohibited. A performance of a copyrighted dramatic work is not a copyright violation if there is no admission charge and no compensation paid to performers or promoters.

PRINTED MATERIALS: FAIR USE FOR LIBRARIES There are fair use exceptions for libraries, according to Fischer, Schimmel, and Stellman when:

1. Libraries can only make reproductions when there is no purpose of commercial advantage.

2. Library collections must be open to the public.

3. Libraries can not reproduce more than one copy of a work.

4. A notice of copyright must be included in the reproduction.

A library may make copies when these requirements are followed in the following circumstances:

1. when copies are made to preserve an unpublished work in facsimile form that is currently in the library

2. to replace a published work in facsimile form that is damaged, lost, or stolen if it has been determined that a replacement cannot be obtained at a fair price

3. when copies are made for a user or another library on behalf of a user if the copy will not be used for purposes other than private study or research

4. the copy must contain a copyright notice.

A library will not be held liable for copyright infringement when it displays a notice of the copyright law on its copying equipment (Fischer, Schimmel, and Stellman, 2003).

AUDIO AND VIDEO GUIDELINES

The guidelines developed in 1976 for the educational use of music include the following:

Multiple copies of sheet music may be copied in an emergency, provided purchased replacement copies are substituted as soon as possible.

1. For academic purposes other than performance, multiple copies of excerpts of works may be made if the excerpts don't include more than 10 percent of the whole. The number of copies may not exceed one copy per student.

2. For academic purposes other than performance, a single copy of an entire performable unit may be made if the unit is out of print or available only in a larger work.

3. Purchased sheet music may be edited or simplified if the character of the work is not distorted and if lyrics are not altered.

4. A single copy of a sound recording of a student performance may be made for evaluation or rehearsal purposes.

5. A single copy of a sound recording of copyrighted music may be made from sound recordings owned by an educational institution or an individual teacher for the purpose of aural exercises may be retained by the educational institution or individual teacher.

6. Copying to create, replace, or substitute for anthologies, compilations, or collective works; copying works intended to be consumable, such as workbooks, exercises, or standardized tests; copying for the purpose of performance (except in an emergency); copying as a substitute for purchase; and copying without the inclusion of the copyright notice are not permitted.

These guidelines allow educators to tape a radio or television broadcast for instructional use only if:

1. The program is recorded simultaneously with the broadcast.

2. The program is being broadcast without charge.

3. The program is recorded only in response to a specific request.

4. The program is recorded (but not necessarily used) in its entirety.

5. The program is not altered.

6. The tape is retained by the educational institution for no longer than 45 days after the date of the recording.

7. The tape is used only once with each class during the first ten consecutive school days of the 45-day retention period.

8. The tape is used from the tenth to the 45th day of the retention period for teacher-evaluation purposes only.

9. Bought or rented videos designated for home use can be used for student instruction, but not for entertainment.

http://www.education-world.com/a_curr/curr280.shtml

NEW TECHNOLOGY

The only tangible works that can be copied without asking permission or considering fair use guidelines are works in the public domain and works that are not copyright protected. Consider the following:

1. Most information on the Internet is not in the public domain.

2. Most software, including freeware, is not in the public domain.

3. To determine whether a multimedia resource is copyright protected or in the public domain is to relate it as closely as possible to a print resource.

4. Asking permission is polite, even if you're not legally required to do so.

Educators can use copyrighted works to create educational multimedia projects for:

1. face-to-face student instruction

2. directed student self-study

3. real-time remote instruction, review, or directed self-study

4. presentation at peer workshops and conferences

5. for personal uses such as tenure review or job interviews.

6. fair use guidelines allow students to use copyrighted works to create educational multimedia projects for

7. fulfilling course requirements

8. inclusion in portfolios as examples of academic work

9. for personal uses such as job and graduate school interviews.

http://www.education-world.com/a_curr/curr280d.shtml

Time limit on fair use is two years from completion of the multimedia work. Copies are usually limited to two. Portion limits for multimedia projects are:

1. motion media-up to 10% or 3 minutes, whichever is less

2. text-up to 10% or 1000 words, whichever is less

3. poetry - to 250 words, but limited to: three poems or portions of poems by one poet or five poems or portions of poems by different poets from an anthology

4. music, lyrics, and music video - to 10% or 30 seconds, whichever is less

5. photos, illustrations, cartoons, and images - to 5 works from one author and up to 10% or 15 works, whichever is less from a collection

6. database information - to 10% or 2500 fields or cell entries, whichever is less

http://www.utsystem.edu/OGC/IntellectualProperty/faculty.htm#mm

CRITICAL LEGAL POINTS

Copyright law attempts to balance the rights of authors with the rights of the public to have access to the Author's work. The original copyright law was enacted after the development of the printing press. As the ability to copy works quickly and cheaply increased, the need for protection of the creators of the works increased (Hoffman, 2001). Successfully maintaining the balance between creators and users is easier said than done. Furthermore, the advancements of digital technology continue to make copyright law even more complicated.

The first federal law was the Copyright Act of 1790 and has evolved into the current law, The Copyright Law of 1976. This law deals with general guidelines, not specific situations. Currently, the United States Copyright Office in Washington, D.C. oversees the copyright registration process and disperses copyright information and as new technologies and forms of expression evolve, it is up to the courts to fill in the details of copyright law (McDonald, n.d.).

New bills in Congress:

1. The Berman-Coble Bill, July 2002, H.R. 5211--Allows a copyright owner to use technological remedies against infringement, including illegal file-sharing on peer-to-peer networks.

2. Anti-Counterfeiting Amendments of 2002--S. 2395 creates liability for trafficking in illicit authentication features: any watermark, symbol, code, certification. The Consumer Broadband and Digital Television Promotion Act (S. 2048) requires a "broadcast flag," a digital rights management device, in all "digital media devices" to prevent piracy. Digital Media Consumer's Act (DMCRA): H.R. 5544, would change the Digital Millennium Copyright Act (DMCA) of 1998 to reaffirm fair use for consumers.

3. Digital Choice and Freedom Act, H.R. 5522. Calls for restoration of public rights.

Recent laws:

Technology, Education and Copyright Harmonization (TEACH) Act of 2002.
This law is a complicated and strict law is important for distance education. Go to http://www.ala.org/washoff/copyright.html for a summary of this bill. The Teach Toolkit from North Carolina State University systematically covers the steps needed to implement and use the TEACH Act.

The Digital Millennium Copyright Act. This law offers copyright protection for use of materials on the web. For anyone seeking to use web resources, it is advisable to seek advice from an attorney or a copyright librarian. Fort Hays State's copyright librarian, Suzanne Veseley, can be located at svesley@fhsu.edu. & http://www.fhsu.edu/forsyth_lib/

Copyright Cases:

Eldred v. Ashcroft (decided in the Supreme Court, 15 Jan. 2003). The challenge against the Sonny Bono Copyright Extension Act, which has extended copyright protection time to the life of the author plus 70 years, was decided in the Supreme Court on January 15, 2003. The Sonny Bono Extension Act will remain law.

Verizon Internet Services Inc. v. RIAA, 2003 WL 141147, D. D.C. 2003. (Jan. 21, 2003). The recording industry asked Verizon last summer to reveal the name of a customer believed to have downloaded more than 600 songs in one day, but Verizon refused, saying that such a move would violate customer privacy. But U.S. Judge John Bates ordered Verizon to turn over the customer's name. RIAA now says MP3 file sharing networks such as Kazaa could face legal action.

Campbell v. Acuff-Rose Music, 114 S. Ct. 1164, 1174 (1994). The courts have ruled that verbatim, substantial, copying of course materials for distribution to students is copyright infringement and not fair use, even in the absence of a profit motive.

Basic Books, Inc. v. Kinkoís Graphic Corp (1991)- The courts ruled that commercial copy shops cannot sell unauthorized coursepack anthologies without obtaining permission from the copyright holders and paying a few for the use of the copyrighted materials.

Encyclopedia Britannica Educational Corp. v. Crooks (1983)--Established that widespread taping of television programs for systematic distribution exceeds fair use for educational purposes.

Wihtol v. Crow, 309 F.2d 777 (1962)--Courts have ruled that a teacher may not draft new arrangements of copyrighted music and distribute copies to a school choir.

LEGAL SCENARIOS

1.	Can the second grade teacher make copies of an illustrated children's book to distribute to members of the class? No. Fair use limits educators to two pages from an illustrated work less than 2,500 word.
2.	Can the kindergarten teacher show the video, Kindergarten Cop, to her classroom as a reward for good behavior? No, videos must be used for educational purposes only, not entertainment or reward.
3.	Can the librarian loan out the district's copy of the software, Jumpstart Kindergarten? Yes, the library may lend software to patrons.
4.	Can music be included in the senior class video? Yes, if they acquire public performance rights for the music, if they play music from public domain selections, or if they play up to 10% or 30 seconds, whichever is less, of clips of music.
5.	Can the high school teacher make a copy of the book, Huckleberry Finn, for each student in a class? No, only 10% of a work or 1,000 words, whichever is less, may be copied from a work longer than 2,500 words.

CONCLUSION

In order to make informed decisions about proper use of materials, it is important that educators are aware of copyright guidelines. Steps to avoid misuse of copyright are as follows:

1.	Adopt a written policy following Title 17, United States Code.
2.	Establish a means to communicate the law, policies and guidelines to all employees and students.
3.	Train staff in copyright policy.
4.	Post copyright and fair use guidelines. An informational guide to copyright and fair use guidelines can be found at http://www.halldavidson.net/.
5.	Staff and students must be held accountable for following copyright guidelines.
6.	The general rule of thumb concerning copyright is "If in doubt, ask permission!" Copyright charts, articles, quizzes, and handouts for classroom planning in multimedia and video are available at http://www.halldavidson.net/. A complete listing of text and amendments can be found at http://www.copyright.gov/title17/.

References

Fischer, Louis, Schimmel, David, & Stellman, Leslie R., (2003). Teachers and the Law (6th Ed.) Boston: Allyn and Bacon.

Copyright Websites

http://www.copyright.gov/title17/

http://www.copyright.iupui.edu/highered.htm#purpose

http://dictionary.reference.com/search?q=copyright

http://www.education-world.com/a_curr/curr280.shtml

http://www.education-world.com/a_curr/curr280a.shtml

http://www.education-world.com/a_curr/curr280d.shtml

http://www.fhsu.edu/forsyth_lib/copyright

http://www.halldavidson.net/

http://www.stfrancis.edu/cid/copyrightbay/purpose.htm

http://www.utsystem.edu/OGC/IntellectualProperty/faculty.htm#mm