Copyright VS Fair Use: All Bark and No Bite

[Lesley Ann Wallace]

Copyright has always seemed like a big, big deal when you gather around a copy machine watching what others arduously hold under the top cover so that no one might peek, or when one might be checking student papers knowing good and well that those words could definitely not come out spelled right in certain student’s work.

In my educational career, I am more open or in the sense of Fair Use, more bold, when using others works to enhance instruction, but then I am a literacy specialist and if I wanted to get students to learn to read and comprehend better, I need to hand them something other than the blandness of some text book to move their fingers across, more motivating than chapter books that represented a picture less environment and looked only visual in the sense of endless strings of words, more words, and just words.

I know students need more. They are motivated by sellers like, ideas that interest them, issues that are current, issues that are fearsome or exciting, and issues embedded in the changes of their own popular culture.

I found this information, this gold nugget, in periodicals with its pictures, medium length readable text, and topics answering questions that peak student attention. What did I do? How could I have been so blatantly reliant on Fair Use to copy and share entire articles with students?

Well, I realized early on my employment of periodicals to teach students was a definable characteristic of Fair Use material and I smirked quietly as instructors watched me copy off what they considered wrong, terribly wrong, lawfully wrong, BUT oh, so right. Literacy development amongst my students also proved too, that grabbing the students’ attention is the sure fire way to make them better readers.

I am telling you this because the “hot off the press” article backed by legal council and significant organizations, that I have attached supports my professional belief about using copyright work in education. History teachers, tech teachers, general ed. teachers, all teachers, use media literacy to support learning in their content areas and Fair Use gives us permission to use information as we see fit. Of course, citing is fittingly important too, but you already know that.

Some of you may disagree with me-that is what forums are for but-

If you find yourself cowering as new materials take center stage in students’ lives, materials like, movie clips, songs, blogs, podcasts and more, read this article and decide for your self-become amused, amazed and much more bold in deciding what to use in your teaching and learning environments.

http://www.centerforsocialmedia.org/files/pdf/Media_literacy_txt.pdf

[Jane Blume]

If you want more information about Fair Use, these Fair Use Checklists can help you determine if your use is "Fair." The two checklists are from the Copyright Management Center at Indiana and Purdue Univerisities and from Yakima Valley Community College. (We have received permission from both colleges to link to their websites.)

[Lesley Ann Wallace]

Thanks Jane you awesome!

[tonykuphaldt]

Section 107 of US Code Title 17 is official US law on the subject of fair use. Here is the section in its entirety:



§ 107. Limitations on exclusive rights: Fair use40
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 by 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 —

(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.

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.


Of course, there is still legal room for interpretation. It would be a court's decision whether or not these four factors justify "fair use" in any particular circumstance. However, the way I've seen most teachers copy others' materials (e.g. copy of a photograph, or a paragraph of text, here and there in their lecture presentations) would be a real stretch for anyone to claim as infringement of copyright.

A teacher making photocopies of a booklet for his/her students to use, so that students won't have to buy it . . . well that's a different case entirely. And yes, I have heard of the latter being done!

[Liz Hale]

Be aware of "no bite." If caught in copyright violation, the fines can start at $10K for the faculty member personally as well ast $100K to the institution.

Copyright is larger and more complicated that most would like. And it changes from what you do in the classroom, decide to sell thru the bookstore, and now, post on-line. The digital copyright debate and protection conversations have just begun. Will online "print" material go thru all the challenges as did music? time will tell. but trust me....just assuming you're in "fair use" or "providing access to disabled students" doesn't mean its necessarily so.

You're right...grabbing that great cartoon and sharing with your class that day is totally ok. Sharing it with every class thereafter for the next 3 years is not. Jane's references noted are great. If you need something more bookstore related, I should still have a few copies of "Questions & Answers on Copyright for the campus Community" put out by National Association of College stores with help of Association of American Publishers, Copyright Clearance Center, Software and Information Industry Association and a few others.

[Jane Blume]

Liz has some excellent points. I know BTC negotiated a fine down to $10,000 in the early 90s for an unintential copyright infringement. I have taught classes to K-12 teachers and heard of a teacher that was fined $10,000 for copying form a workbook. She had to pay it herself. Neither the school system or the union would represent her. I have frequently seen workbooks being copied. I always mention it to the user because "consumables" such as workbooks are never under "Fair Use." (My name is frequently mud after such a conversation....)

If an instructor has filled out a fair use checklist and keeps it on file, it would show a good faith effort to follow the copyright law. Giving proper attribution (citation) is important even if it is under "fair use." If an instructor shows that they have tried to follow the guidelines under Fair Use, their chances of proving "fair use" is greatly enhanced.

When Lesley first sent me this document, here was my response to her:
"Very interesting. The question I have is now is how much "media literacy" is done at BTC. (I like the discussion of it on page 10 under "Description".) Most show videos, DVDs, etc. for the information. The "literacy" aspect is a part of what may be missing from showing media frequently at any college or school. As people's skills (instructors and students) increase in the manipulation of media, this will become more and more important. I like how it states on p. 15 that the traditional "rules of thumb" are not written into law and can still be interpreted for fair use. I see we need to probably do quite a bit more with teaching students and instructors attribution and model citation practices (p.10, Limitations) Jeff's workshop at the faculty in-service day was a great start."

We are in the finishing stages of a copyright policy for the college. Traci Harpine and I (mainly Traci) have a Copyright website that we have compiled and hope that it will be available by the end of December.