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Copyright in the Classroom: Copyright Law

Welcome to the Jefferson College Library -Copyright in the Classroom libguide! Use this guide to get started with including resources created by others in your classroom. There are various considerations to make before using material for your class- take

Takeaway- This If Nothing Else

Guiding principles

  • Assume content has copyright, unless you can prove otherwise.
  • Fair-use is not a 'right', it is a legal defense.
  • Copyright is an ethical consideration as well as a legal one.

Fair Use: Not Carte Blanche

© Silvia Tolisano and Meryl Zeidenberg 2014

What's fair use?

“In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

1.the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2.the nature of the copyrighted work;
3.the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4.the effect of the use upon the potential market for or value of the copyrighted work.”
 
Purpose and Character
 
•Not restricted to list of purposes in preamble
•Works copied for educational, non-profit or personal use are more likely to fall within fair use than works copied for profit
•Transformative uses fall within fair use (e.g. parodies, criticism & commentary)
•Does it add something new, further purpose, different character, or alter with new expression, meaning, or message
•Commercial—a higher bar to finding fair use, but not insurmountable. Likewise, non-profit helps fair use claim, but doesn’t guarantee it.
 
Nature of Works
 
•Original intent of copyright is to promote commerce and the exceptions don’t thwart this original purpose
•Works more likely to be subject to fair use include factual and non-fiction works;  published works; and, works important to favored education objectives
•Works less likely to be made fair use of include highly creative work (art, music, novels, films, plays), unpublished work
 
Amount and Sustaintiality
 
•Quantity--smallest amount possible for favored educational purposes
•Quality--substantiality—is this part of the work the “heart” of the work—no matter how small?
•But, use of the entire work in some form may be fair
 
Effect of Use on the Market
 
•Tends to be the most crucial factor (e.g. making copies of text books so that your students don’t have to purchase it)
•Not just this one instance of copying, but widespread conduct like this. What if every instructor, every school, and every library decided to make a copy rather than purchase one?
•“Potential” doesn’t mean “theoretical,” but a market that the rights-holder might logically enter given the work.
 
 

Copyright- History and the Letter of the Law

Copyright protection has behind it Constitutional Authority because of the importance placed on the creation of new ideas and inventions in an emerging country, and has precedent in the US as far back as 1710.

Article 1, Section 8 of the US constitution says ' The Congress shall have the power…To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and  Discoveries…”

Article 1, Section 8 tells us that copyright is meant to ensure and encourage commerce. Part of the incentive to produce something- be it a poem, a painting, or an epic work of fiction, is that you will eventually be rewarded for your efforts. Copyright provides assurances that allow artists, writers, and other creative types to produce work. It protects the livlihood of creators, and ensures that they will receive credit for their work. Without copyright, there would be less motivation to create for the market, because anyone could just steal your idea and profit off of it (either fanancially, or professionally). Copyright ensures that an idea has certain protections, which enable the creator to control their work for a given period of time.

The Mission of the Copyright Office—”promote creativity by administering and sustaining an effective national copyright system”

What's Protected?

What's protected?
 
•Original works of authorship (e.g. diary, software program, script & song)
•Fixed in any tangible medium of expression (buildings, digital or analog recordings, books, paintings)
•From which they can be perceived, reproduced, or otherwise communicated (photographed, recorded, scanned, copied, reposted)
•Either directly or with the aid of a machine (verbally transmitting someone’s work, creating copy of artwork, scanning & distributing web pages or documents)
 
What's not protected?
 
•Ideas and facts
•Works in the public domain, federal government works, unfixed works (those that have not been recorded in a fixed form- like a song you made up, or the idea for a screenplay you never actually wrote down)
•Titles, names, short phrases, processes, systems, and slogans
•Familiar designs, numbers, lettering, fonts, and symbols
 

Is it fair use?

1. A professor copies one article from a periodical for distribution to the class. Is it fair use?
Yes: 84 votes (78.5%)
No: 23 votes (21.5%)
Total Votes: 107
2. A professor has posted his class notes on a web page available to the public. He wants to scan an article from a copyrighted journal and add it to his web page. Is it fair use?
Yes: 18 votes (20.93%)
No: 68 votes (79.07%)
Total Votes: 86
3. A professor wishes to use a textbook he considers to be too expensive. He makes copies of the book for the class. Is this fair use?
Yes: 5 votes (5.62%)
No: 84 votes (94.38%)
Total Votes: 89

Answers to above polls.

1. Yes. Distribution of multiple copies for classroom use is fair use. However, the repeated use of a copyrighted work, from term-to-term, requires more scrutiny in a fair use evaluation. Repeated use, as well as a large class size, may weigh against fair use.

2. No, if access is open to the public, then this use is probably not a fair use. No exclusively educational purpose can be guaranteed by putting the article on the web, and such conduct would arguably violate the copyright holder's right of public distribution. If access to the web page is restricted, then it is more likely to be fair use.

3. No. Although the use is educational, the professor is using the entire work, and by providing copies of the entire book to his students, he has affected the market. This conduct clearly interferes with the marketing monopoly of the copyright owner. The professor should place a copy on reserve or require the students to purchase the book.

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