Fair Use and Copyright in Instruction
The University of Arizona
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Welcome
Copyright has become increasingly important on campuses of late as there have been multiple cases, some still working their way through the courts in which colleges and universities have been sued for the manner in which they provide instructional material to students.
This tutorial will explore copyright and what you as a University of Arizona instructor can do to ensure your activities are in alignment with the law.
You will learn about how copyright is defined in U.S. law and take a look at limitations on copyright owners such as fair use and specific educational exemptions.
Lastly, you’ll be given an opportunity to evaluate some scenarios and determine if they infringe on copyright laws. You will also be given a list of resources where you can get more information.
Quiz
What do you already know about using copyrighted material in the classroom? Take this quiz and find out.
Question 1: How does the U.S. Copyright office define copyright?
A) Copyright is a constitutional right automatically granted to the author or creator of a work once it has been fixed and published in any and all formats.
B) Copyright is a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works.
C) Copyright is a basic right granted to all citizens of the U.S. in order to allow for the creation and distribution of information in a fair and just environment. Copyright allows for the creator to seek monetary rewards for their original work.
Answer: B – Copyright law grants rights for both unpublished and published works.
Question 2: Which of the following statements about copyright protection is correct?
A) A new work is currently protected under copyright for the life of the author plus an additional 70 years after their death.
B) A work is protected throughout the life of the author but ceases upon his/her death.
C) A work is protected according to the will of the author who has full rights as specified in their will up to 500 years after death.
Answer: A – Copyright law states that a work is protected 70 years after the death of the author.
Question 3: Which of the following statements about copyright protection by a corporate author is correct?
A) Works for hire are protected for 95 years from the first publication or 120 years from creation, whichever is shorter.
B) Corporate authors or works for hire have the same protection as original authors: 70 years after death.
C) Works for hire are in the public domain and no longer hold copyright protection 50 years after their first publication.
Answer: A – Copyright law differs with protection when it comes to works for hire.
Question 4: Which of the following types of works CAN be copyrighted?
A) Systems, familiar designs, processes and federal government works.
B) Ideas, facts, names, and slogans.
C) Books, music, images, and other works fixed in a digital format.
Answer: C – Any original work of authorship that is fixed in a tangible medium of expression is subject to copyright.
Question 5: How is an original work protected by copyright?
A) Copyright is a legal process that begins with the filling of registration through the U.S. copyright office.
B) Copyright goes into effect immediately once an expression has been “fixed.” No copyright notice is required.
C) Copyright begins once the original author identifies a work as copyrighted with the international copyright symbol - ©.
Answer: B – Since 1978 copyright goes into effect immediately and no notice is needed.
Whiteboard
Copyright vs. Fair Use
Copyright is often thought of as a single, indivisible right. In reality, owners are granted a “bundle” of rights. Those rights must be weighed with the rights of individuals including educators to use a work.
Remember that not all works are subject to copyright. Works in the public domain refer to works that have either lost their copyright or were never subject to copyright. These include works first published in the U.S. before 1923 and works from the federal government.
In this portion of the tutorial, we will look at the rights of copyright owners and the Fair Use doctrine.
Copyright Owners Rights
So what can the owner of a work do that you cannot?
Click on each folder tab to find out more about that type of right.
Reproduce: The owners of a copyrighted work have the right to reproduce a work including photocopying it our downloading it from the web.
Derivative works: The owners of a copyrighted work have the right to make derivative works of the original work. This includes translating a work into a different language or turning a novel into a movie.
Distribute: The owners of a copyrighted work have the right to distribute a work. This could mean selling a work through a bookseller or posting a work on the web. Distribution in this sense is reserved for copyright owners and not fans on a torrent site.
Display: The owners of a copyrighted work have the right to legally display a work publicly including a book chapter online or presenting a photograph for display.
Perform: The owners of a copyrighted work have the right to perform a work publicly including reciting a poem or showing a movie.
Transmit (Digital Transmission): The owners of a copyrighted work have the right to perform a work publicly by means of a digital transmission including the right to make a work available through a podcast.
Education Exemptions
Although copyright owners do have many rights, there are some exemptions to those rights. Section 110 of the US Copyright Law provides exemptions for educational purposes.
Section 110 (1) allows for displaying or performing entire works in face-to-face instruction. Section 110(2) allows for performing or displaying “reasonable and limited portions” of lawfully acquired copies of works in online instruction. Copying still requires fair use or getting permission.
The Fair Use Doctrine
The Fair Use Doctrine allows for limited use of copyrighted material without requiring prior permission from the copyright holder.
Fair Use is a means to balance the economic incentive of copyright holders with the public’s right to re-use works to promote learning and the creation of new works.
It’s a vague law that lists four factors to be weighed when determining whether a use is a fair one. Other factors can be considered by the courts as they determine if a use meets the goals of copyright law.
The Four Factors of Fair Use
We’re going to take a look at the stated factors, and keep in mind that all four factors must be taken into consideration but all factors do not have to be in favor to make a use a fair one.
Factor 1: Purpose and Character
Is the work being used for commercial purposes or for non-profit educational purposes?
Comment, criticism, and classroom uses are paradigm cases of fair use.
In a recent court case in Georgia, copying a book chapter for course readings was found to lean in favor of fair use.
Courts also favor transformative uses of works over merely providing a new service that substitutes for the same market. The greater the difference is between your use and the use and market the work was originally created for, the greater chance your use will be fair.
Factor 2: Nature of the Work
The second factor to consider is the nature of the work being used. Creative works such as poetry and movies get greater protection than more factual works. Consumables such as workbooks get greater protection.
Factor 3: Amount of Work
The third factor you need to consider is the amount of work being used in relation to the whole. The use of entire works is not favored, so a good rule of thumb is to use only the amount that you need.
The statute does not give any precise limits here. A recent court case in Georgia found that copying one chapter or 10% of a book is favored fair use.
You also need to consider the qualitative amount that you are using. This means that you need to be careful that you are not copying and distributing the most important pieces of a particular work.
Factor 4: Effect on Market
The fourth factor you need to consider is the effect of the use on the market. This factor is particularly important in educational settings.
For example, if an instructor makes copies of a resource like a workbook that has been created for students to buy, they are, in essence, replacing the market and are not complying with fair use.
Fair Use or Copyright Infringement?
Directions: Read the scenario and then decide if the use described is within fair use guidelines or could lead to copyright infringement.
Scenario 1: Ricardo is an instructor in the Department of Latin American Studies. He is teaching an undergraduate course this year in Latin American politics. He has students purchase two textbooks, but has additional readings including the last chapter of the book Modern Latin America (512 pages) by Thomas E. Skidmore. He scans the 25 pages of the chapter and places a digital copy in D2L for his students to read.
Is this Copyright Infringement? Or Allowable Use?
Answer: Allowable Use, Using one chapter that amounts to less than 10% of a scholarly book is likely fair use and has been found to be so in a recent court case.
Scenario 2: Erica is a graduate teaching assistant in the Department of Slavic Studies. She is teaching a course on Russian literature and has asked her students to read several novels and short stories. She scans a copy of Ronald Hingley’s 1965 translation of Chekov’s short story “Ward Number Six” and places it in the course D2L site for students to download and read.
Answer: Copyright Infringement. Copying the Chekov story would more likely infringe the copyright. Although Chekhov’s original writings are in the public domain, but more recent translations are protected. Copying the short story would be a mere substitute for buying a copy.
Scenario 3: Lee is an adjuct instructor in the Sociology Department where he is teaching a course in statistics. He makes print copies of a 200 page report, Older American 2012 published by the United States Federal Interagency on Aging for each student in his class and distributes them in class.
Answer: Allowable Use. Because this report is a U.S. Federal document, it is in the public domain and freely available to anyone.
Fair Use in your Classroom
Some tips for using works in your classes
Avoid addressing copyright concerns by LINKING to a licensed or otherwise legal copy already available online rather than loading a new copy of it into D2L. Limiting access to just those students in your class, as you can in D2L, also helps demonstrate the educational purpose of your use and limits the impact on the market for the work.
You can also use just a certain amount of a work as opposed to the entire work. Remember to use just what you need to meet your learning goal.
Copy Infringement Penalties
You should also be aware of penalties for infringement. The statute sets penalties at $750 - $30,000 per work infringed, and it gets up to $150,000 for willful infringement. Infringers can also be held responsible for court costs and opponent’s attorney’s fees.
Directions: Read the scenario and then decide what the instructor could do to avoid possible copyright infringement.
Scenario 4: Last year, Becca, a teaching assistant in Anthropology, taught the course Native Peoples of the Southwest. One of her favorite journals, Anthropologia, released a thematic issue with several useful articles. Since the University of Arizona Library has a full subscription to the journal, she used six articles from the thematic issue and placed a copy of each in D2L. Later, her advisor, who is on the editorial board for the journal, saw this and suggested that using so many articles from the same journal issues constitutes copyright infringement. What could Becca do next time to make these readings available and avoid copyright issues.
A) Link to the articles via D2L
B) Make paper copies of the articles and distribute them in class
C) Use no more than half of the issues.
Answer: A – Since the Library provides electronic access to the journal articles, linking to them from the D2L course will avoid having to raise the fair use question completely.
Scenario 5: Edwina is an instructor in the Media Arts Department where she teaches a course that includes a unit on special effects in movies. She wants to show different scenes from a few movies including Avatar. She rips a copy from her own DVD and posts the copy of the film in her D2L site for students to watch it. One of her students downloads and then shares it over a torrent site. He gets a notice from the copyright owner for file sharing and tells Edwina that she is liable because she gave him the copy. What would Edwina do to avoid any copyright issues?
A) Stream the video instead of placing a copy of it in D2l
B) Give students access to a website that shows parts of the movie
C) Only stream key pieces from the film opposed to the entire film