Copyright is the law! Specifically, it's the part of the United States Code (Title 17) that protects the authors of original works, regardless of whether or not the work has been published. The 1976 Copyright Act (Section 106) gives the owner the following rights:
To reproduce/copy the work. This includes duplicating parts of the work.
To prepare derivative works .
To distribute copie s to the public by sale or transfer of ownership, or by rental, lease, or loan.
To perform and/or display the work publicly . This means showing a movie, music cd or performing a dramatic work.
WHAT WORKS ARE PROTECTED?
Copyright protects "original works" that are fixed in a tangible form of expression including works in the following broad categories:
literary works (including computer programs and most compilations);
musical works, including any accompanying words
dramatic works, including any accompanying music
pantomimes and choreographic works
pictorial, graphic, and sculptural works (including maps and blueprints)
motion pictures and other audiovisual works
sound recordings
architectural works
Copyright law begins with the concept that the copyright owner has exclusive rights to the many uses of a protected work, specifically copyright law protects the owners' rights to reproduce, distribute, make derivative works, and publicly display or perform the work. Like many other laws, copyright law has some important exceptions and the Copyright Act includes important exceptions to those rights. The best known and most important exception to owners' rights, for educational institutions, is the fair use exemption.
The Fair-Use Statute
Fair use today is embodied in Section 107 of the U.S. Copyright Act and it exempts limited uses of materials from infringement liabilities. The full text of the fair-use statute (which immediately follows) is explicit that the right of fair use is specifically applicable to teaching, research, and scholarship. The statute is also clear that the right of fair use has a limited scope which is dependent on four statutory factors. These factors are open to diverse interpretations; the law and subsequent cases offer no hard and fast rules for determining which activities may be legally allowable. The courts have been clear that establishing whether a given activity is a fair use is a case-by-case determination.
Following is the full text of the fair-use statute from the U.S. Copyright Act.
Section 107 of the Copyright Act of 1976. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified in that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include --
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
While it is clear from the statute that fair use is intended to apply to teaching, research, and other such activities, it is equally clear that an educational purpose alone does not make a use fair. The purpose of the use (i.e., educational use) is, in fact, only one of four factors that must be analyzed to determine whether or not an activity is lawful.
The academic community, along with various professional associations and publishers, has established a beginning set of educational fair use guidelines to provide "greater certainty and protection" in regards to photocopying. These guidelines are not part of the federal Copyright Act; however they have been recognized by the Copyright Office and by judges as minimum standards for fair use in education. These guidelines are also limited in their scope of possibly copying activities. Keeping that in mind, a faculty member or student who follows the guidelines can feel comfortable that a use falling within these guidelines is a permissible fair use and not an infringement. Many judges have looked to these guidelines when making related fair use determinations. The educational use guidelines can be found in Circular 21, provided by the Copyright Office ( http://www.copyright.gov/circs/circ21.pdf ). [Circular 21 attached as supporting documentation?]
In other fair use situations, there are no adopted guidelines and the only way to prove that a use is permitted is to submit the matter to court or arbitration.
QUESTIONS
1. What Is an "Educational Use"?
The educational fair use guidelines apply to material used in educational institutions and for educational purposes. Examples of educational institutions include K-12 schools, colleges and universities. Libraries, museums, hospitals and other nonprofit institutions also are considered educational institutions under most educational fair use guidelines when they engage in nonprofit instructional, research, or scholarly activities for educational purposes.
2. What does "Educational purposes" mean?
- non-commercial instruction or curriculum based teaching by educators to students at nonprofit educational institutions
- planned non-commercial study or investigation directed toward making a contribution to a field of knowledge, or
- presentation of research findings at non-commercial peer conferences, workshops or seminars.
3. How have the four factors been fleshed out by interpretations and court cases?