Many educators interpret fair use as freedom to use copyrighted materials as long as their use is restricted to instructional purposes. Are they correct in that belief? Not exactly! Learn how the law really works. Included: Fair use guidelines for educators!
Copyrights and Copying Wrongs, the first part in the Education World series on copyright and fair use, set out a good rule of thumb for using copyrighted material -- when in doubt, ask permission.
There are, as always, exceptions to the rule. For example, if your use of the materials falls under the fair use doctrine, you don't have to get permission to use copyrighted materials. Be careful, though. The fair use doctrine is not a license to steal!
The fair use doctrine was created to allow the use of copyrighted works for criticism and commentary, parody, news reporting, research and scholarship, and classroom instruction.
Many educators, however, interpret the fair use doctrine as freedom to use any copyrighted materials as long as their use is restricted to instructional purposes.
"They are not correct in that belief," said former copyright attorney Nancy Willard.
"The fair use doctrine, established in a long line of court cases, provides a limited basis by which people can use a copyrighted work without getting permission from the creator," Willard told Education World. "The essence of the fair use doctrine is that a person is not using the work in such a manner that is, or has the potential of, diverting income from the creator."
"To determine whether a use is fair requires consideration of four factors," Willard added. "The first factor is the purpose of the copying, and copying to support an educational use certainly meets this standard. There are three other factors, though: how much has been copied, what kind of material has been copied, and the potential financial loss to the creator. So, although your heart and intentions may be pure, the other factors must still be considered."
Those factors, codified in Section 107 of the Copyright Act, are
When evaluating a particular use of copyrighted materials in relation to those four factors, you should ask yourself the following questions regarding
"Over the years, librarians, educators, and publishers have developed voluntary guidelines to address fair use," Willard told Education World. "Although these guidelines are not statutory, they are contained in the legislative history of the Copyright Act."
Those guidelines allow educators, under most circumstances, to copy
The guidelines do not allow users to
Educational technology existed, of course, -- in the form of audio and video -- long before the Internet, software, digital images, and multimedia productions invaded our classrooms. Guidelines for the use of such "primitive" technologies were developed.
The guidelines developed in 1976 for the educational use of music include the following:
In 1981, a congressional subcommittee developed guidelines for off-air taping of television and radio broadcasts for educational use. Those guidelines allow educators to tape a radio or television broadcast for instructional (not entertainment) use if
In addition, guidelines established in 1976 allow educators who have bought or rented videocassettes designated for home use only to use those videocassettes for face-to-face student instruction -- but not for student entertainment.
Obviously, copyright law is complicated and easily misinterpreted. Even those with the best intentions -- and the best lawyers -- are liable to make mistakes.
The Copyright Website provides some fascinating examples of some big names who made costly copyright errors.
So what are the chances you'll find yourself in court? Pretty slim -- although they increase dramatically if your use of a work interferes with the owner's potential income. Most copyright owners don't want to take teachers or school systems to court. They just want to stop the copyright infringement. If you make a mistake in good faith and you're asked to stop using a particular work, do so immediately.
In addition, Nancy Willard offers the following recommendations to help teachers and school districts avoid problems:
Click here to return to the main page of the Education World copyright series.
Editor's Note: The information contained in this article is, to the best of our knowledge, correct and up-to-date. Copyright laws and the circumstances surrounding the use of copyrighted materials can be difficult to interpret, however, and information in this article should not be construed as legal advice.
Article by Linda Starr
Copyright ©2010, 2015 Education World