1. Copyright 101: what
can I use?
The easy to use guide for teachers
and trainers when dealing with
questions surrounding copyright and
fair-use policies.
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2. Objectives for training session
At the conclusion of today’s training, the learner will be able to:
Analyze major changes in copyright law and policy from early years to present day
Evaluate the definition of “fair use” and how it applies to roles in education
(including digital learning)
Create solutions to presented case studies in order to meet standards of fair use
and comply with copyright law
Resources used in this presentation: The Stanford Law Library,
Copyright and Fair Use Section
(http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/index.h
tml)
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3. History of copyright law
Did you know? The ability to create and enforce a copyright is
mentioned in the US Constitution! (Article 1, Section 8, Clause 8)
The “Copyright Clause” as it is known states:
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;
Read that section again. Do you think that the founding fathers were
talking about protecting the intellectual rights of individuals or their
ability to make a profit from their work, or both? Explain.
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4. The basics of fair use principle
Fair use is defined as a shared belief that the public is entitled to freely
use portions of copyrighted materials for purposes of commentary and
criticism (Stanford Law Library).
Just because you can comment or criticize a copyright owner doesn’t
mean that you won’t face legal action! Fair use is not a shield to say
anything without consequences!
There is no absolute set of standards that say what is fair use and what
isn’t. Interpretation of whether fair use is correct or not is based on
past precedent.
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5. Four factors used in fair use
If a copyright infringement case goes to court, judges typically look at
whether or not a violation occurred based on these four standards:
The purpose and character of the material used
The nature of the copyrighted work
The amount taken (How much did you use?)
The effect your use (a little or a lot) has on the open market
In defense of their actions, some people claim to give credit to the
original owner and be ok. This is WRONG! Acknowledging the owner
without permission is not an acceptable defense in court.
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6. Fair use in the digital age
Let’s look at the main four areas of fair use and how they would apply
to the digital age of education today.
Area #1: The purpose of and character of your use (Are you using
everything exactly or are you changing something?)
Example: A movie clip from YouTube. If you wanted to play a clip from YouTube in
class of a well known movie to illustrate something, is that ok?
Answer: If legal decisions were handed down on this rule alone, you would
absolutely be guilty of copyright infringement. Based on this area alone, you did not
change anything from the original work.
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7. Fair use in the digital age
Area #2: The nature of the copyrighted work
Case law supports those who sample facts rather than fiction (factual items that
could be found in other places)
This is a great area for all teachers- using the work for academic (non-profit)
purposes versus business/industry (profit) is something that is very closely examined.
Proving that you aren’t trying to make a profit off of someone’s work is a big help in
your case!
Example: In Dr. Gunter’s history class, she wants to include a portion in her lesson
on Abraham Lincoln using information from the US Library of Congress. The site
includes videos, text, and external links to scanned PDF documents. Would Dr.
Gunter be in trouble here?
Answer: On this area alone, NO. Using material from a government site for a non-
profit purpose (academics) would meet the standard of fair use.
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8. FAIR USE IN THE digital age
Area #3: The amount taken (How much copyrighted material are you
using?)
Many people try to hide behind this rule (I only took a little bit!) but whether you
use a little or a lot doesn’t matter. The standard here is what did you take?
For almost everyone, taking the “heart” of the work is going to get you in trouble. In
the eyes of the court, you are taking the main part of the copyrighted work. This will
get you into trouble every time.
What then is the “heart” of the work? In simple terms, it’s the most memorable
piece of a work.
Example: John wants to have a great presentation for his online class. To get
everyone’s attention, he decides to include the first fifteen seconds of the song “Eye
of the Tiger.” Based on this, is John guilty of copyright infringement?
Answer: Rocky, Adrian, and Apollo Creed are coming to make John pay for using
their song!
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9. Fair use in the digital age
Area #4: The effect of your use on the open market (Financial
implications of the work sampled)
Let’s be honest- Money is the number one factor in copyright infringement cases.
While there is definitely an open source argument here, how would Warner
Brothers feel if you posted a season of Chuck or How I Met Your Mother online for
free?
This area is simple- if your infringement, in any part, is taking money away from the
original owner, then you are in trouble. Even though each area is measured together
in a case, this one often decides the fate of most issues in court.
Example: Because of how powerful it is as an educational film, you decide to make
DVD copies of the film Waiting for Superman to distribute to your class so they can
watch at home. Are you in trouble?
Answer: Are you kidding me? Absolutely!
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10. Fair use cases: fair use or not?
Google was sued recently because users viewed information through
their search engine that had been taken off the Internet and only shown
through a cached (old copy) version. How do you think the case turned
out?
This is a tricky one! Google was not liable in this case- judges claimed
that the fact that cached copies were present, it is not Google’s fault if a
user clicks on them or not.
Users who put up pages in HTML have the option to turn off caching- the site in
question in this case did not.
More information see (Field v. Google Inc, 412 F. Supp. 2d 1106)
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11. fair use cases: fair or not?
The life of Muhammad Ali is a great story to share with students- a
documentary film crew wanted to make their film personal and specific.
To do that, they borrowed 41 seconds of live footage of his fight versus
Joe Frazier. Is this covered by fair use?
The answer is YES! Even though they didn’t change anything at all, they
only used a small portion of the original footage and used it simply for
informational purposes.
More information see (Monster Communications Inc vs. Turner
Broadcasting Inc, 935 F. Supp. 490)
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12. conclusion
Copyright infringement, even in the non-profit view of educators, is
something to be taken very seriously! Using a little or a lot of a
copyrighted work is a serious offense!
Online educators have a responsibility to look for open source material
or seek written approval before using online material
It is the responsibility of the teacher/user to know when content
changes what permissions may be needed in the future. Do not assume
anything!
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