Copyright and Fair Use

Before you begin adding content to your website, you need to make sure you understand copyright law and fair use of copyrighted materials for educational purposes. Many educators assume that any use of copyrighted material is acceptable in the interests of educating their students. Knowing copyright law will help you make decisions about the types of content to include on your website and keep you in the clear legally. In this module, you will learn what you need to know about copyright law and fair use, and you will be introduced to Creative Commons media in the second part of the module.

What is Copyright?

We are living in exciting times. Students and teachers have access to a wide variety of resources through the proliferation of computers and the World Wide Web. Unfortunately, much of the information and media on the World Wide Web is copyrighted, and students and teachers often inadvertently infringe copyright in the name of creating presentations or lessons for school.

Image Courtesy MikeBlogs on Flickr
Image Courtesy MikeBlogs on Flickr
Basically copyright gives the original creators of a work exclusive rights to reproduce, distribute, or perform their works. Copyright law applies to nearly all creative and intellectual works: books, recordings, images, video, audio, articles, websites, art, music, dance, architecture, and computer programs are just some of the works protected by copyright.

Works are protected by copyright automatically if they original works of authorship and fixed in a tangible medium of expression. They do not need to be registered with any government agency. Even if you do not see a copyright symbol—©—a work may still be copyrighted. It takes a surprisingly small amount of creativity to qualify for copyright. In addition, determining whether a work has been fixed in a tangible medium of expression is often tricky. For more information, please visit Columbia University's Fundamentals of Copyright and listen to copyright professor Kenneth Crews's first podcast entitled Overview and the second podcast entitled Basic Mantra and Some Exclusions and return to this wiki when you are done.

Copyright restrictions can often last for decades, and the law varies depending on the country. US copyright law protects work for the life of the author plus 70 years. Usually the author or creator of the work is the copyright holder. If a creator was hired to create the work as part of his/her occupation for a company, the copyright holder would be the company, in which case the copyright on the work last for 95 years from publication of the work or 120 years from the creation of the work, whichever amount of time is less. For more information about the duration of copyright, visit Columbia University's Fundamentals of Copyright and listen to copyright professor Kenneth Crews's podcasts Duration of Copyright 1 and Duration of Copyright 2 and return to this wiki when you are done.

This video examines copyright:

Fair Use

With such a long period of time and automatic protections, you may be wondering how you can use media for educational purposes without infringing upon the rights of the creators of that media. Section 107 of the US copyright law includes a provision excepting fair use for educational purposes from the provisions of copyright law. Whether the use of copyrighted materials constitutes fair use depends on a variety of factors:
  1. Is the use for nonprofit or commercial use?
  2. What is the nature of the copyrighted work?
  3. How much of the work are you using?
  4. What potential effect will your use of the work have on the market for or value of the copyrighted work?

When you are determining whether or not to use a copyrighted work, you need to weigh all four of these factors. Unfortunately, it isn't always easy to determine whether a use constitutes fair use or even whether others, including a court, might agree. However, you can bolster your case for use of a work if you carefully consider the four provisions described above. Columbia University's Fundamentals of Copyright examines fair use using example situations teachers might find themselves in.

Nonprofit versus Commercial Use

For reasons that may seem obvious, courts favor nonprofit uses of copyrighted works over commercial uses. After all, commercial use signifies a profit on the part of the user—a profit that is most likely not passed on to the creator of the copyrighted work unless an agreement has been made whereby the user can reproduce the copyrighted work. Therefore, you are probably safe in using a copyrighted image in a presentation at your school because the use stays within the confines of your school, and you are not profiting from use of the image.

In an age when remixing and mashups—new works derived from copyrighted works—are becoming popular, confusion over whether or not creating derivative works infringes copyright abounds. Fair use is likely to be supported if the copyrighted work is made into something new or is used in a new way. For example, incorporating images in a digital film for the purposes of teaching might be considered fair use. Take a look at the following video for an example (note: most of these images are outside of copyright restriction already, but clearly the video represents transformative use of these images for educational purposes). Interestingly enough, the video's creator might be on more questionable ground with his use of music, although he can possibly argue that it, too, is transformative and that his use is not likely to impact the market for or value of Yo-Yo Ma's music.

This video morphs images of women from Western art created over the last 500 years. It was created by Philip Scott Johnson and set to Bach's Sarabande from Suite for Solo Cello No. 1 in G Major, BWV 1007 performed by Yo-Yo Ma.

Using works for the purpose of analysis or criticism is also likely considered fair use under this part of the provision, even if multiple copies are made for classroom consumption.

Nature of the Copyrighted Work

Courts have had the tendency to apply fair use differently to different types of work. Though works are copyrighted at the moment of creation, courts have tended not to consider use of unpublished works fair use. In addition, use of nonfiction work is often considered fair use whereas use of creative works such as stories, poetry, and modern art is a grayer area. Classroom resources such as workbooks or tests that are purchased as part of a teacher resource bank are copyrighted, and if you publish them on a website—for instance, uploading the handouts or test study guides to your website so students may download them—you are probably not protected by the fair use provision, even if the copyright restriction allows you to photocopy the material for classroom use. The reason is that the materials might be viewable by a wider audience than your classroom. If, however, your handouts are locked behind a password on a website, you are probably protected because you are not extending the availability of the copyrighted material beyond the provisions in the license for classroom use.

Amount of Work

The fair use provision of the copyright law does not dictate an amount of a work that is acceptable to use. The amount of material used needs to be examined in light of the overall length of the work. You will probably not be covered under fair use if you photocopy or upload an entire work to your website. Images are a gray area because most of the time, the full image needs to be used in order to meet the user's objectives. Using video clips is also a gray area because of the nature of the clip used. It's possible to use only a small part of a work and in so doing, use the most important part of the work. Therefore, amount of work used is considered not just on the basis of how much you use but also on the quality or value of the portion you use.

Effect on Value or Market for Work

When it can be unclear how much is permissible to use or what value the work used is, the effect on the value or or market for the work can often help you decide whether you are abiding by the fair use provision. This part of the fair use provision considers the impact your use of the material might have on the profits that the copyright holder will make from the work. If you are using the work for commercial purposes, your use might indeed have a significant impact on the value or market for the work. If you do not use the work for commercial purposes, the value of or market for the work is less likely to be impacted with the exception of copying whole films. Therefore, if you rip a DVD and upload it to your website for students to view, you are probably not complying with the fair use provision.

For more information, please return to Columbia University's Fundamentals of Copyright and listen to copyright professor Kenneth Crews's podcasts on Five Exclusive Rights and Moral Rights, Fair Use 1, Fair Use 2, Fair Use 3, Fair Use 4, and Other Limitations and Exceptions. Columbia's Fundamentals of Copyright site also has an excellent Fair Use Checklist that you can download in PDF format and use to determine whether a work you wish to use can be considered fair use or would infringe copyright.

View this slideshow, including video, about fair use.

Eric Faden of Bucknell University shares an introduction to fair use through, well, fair use:

Fair Use Quiz

Are you ready to see how much you understand the fair use provision of copyright law? Take this quiz. Note: If you can't see all of the text, try mousing over the area where the text is located and the text will appear.

Note: Some questions adapted from a fair use quiz by Hall Davidson.

Visit the next page for an explanation of the quiz answers.

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