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Applying Fair Use to
New Technologies

Part 4 of a Series on Copyright and Fair Use




If experts can't agree on acceptable fair use guidelines for works created using new technologies, what can educators do? Fortunately, some resources are available! Included: Fair Use Guidelines for Educational Multimedia.

Is Fair Use a License to Steal?, part 2 of the Education World series on copyright, provided a list of fair use Guidelines for Educators for using copyrighted resources. If you're expecting an equally organized list of guidelines for using the latest technological resources, you're going to be disappointed. That list simply doesn't exist. The fair use guidelines contained in the Copyright Act of 1976 do not address many of the issues that have arisen in the digital age and no new guidelines have been developed.

 

Creating Multimedia Projects

Fair use guidelines allow educators to use copyrighted works to create educational multimedia projects for

* face-to-face student instruction

* directed student self-study

* real-time remote instruction, review, or directed self-study

* presentation at peer workshops and conferences

* such personal uses as tenure review or job interviews.

 

Fair use guidelines allow students to use copyrighted works to create educational multimedia projects for

* fulfilling course requirements

* inclusion in portfolios as examples of academic work

* such personal uses as job and graduate school interviews.

"There was an effort to develop some additional guidelines several years ago," according to Nancy Willard, a former copyright attorney and project director at the University of Oregon Center for Advanced Technology in Education, "but the participants were unable to agree to a common set of guidelines.

"In 1994," Willard told Education World, "the U.S. Department of Commerce established CONFU: The Conference on Fair Use to bring together copyright owner and user interests to discuss fair use issues that new technologies raise and to develop guidelines for fair use by librarians and educators. The CONFU participants spent more than two and a half years trying to develop new fair use guidelines. Proposed guidelines were developed in three areas -- digital images, distance learning, and educational multimedia. In the end, however, the participants could not reach consensus. Copyright owners thought the guidelines gave too much away, and educators and librarians thought the guidelines were unworkable and overly restrictive."

See the CONFU Background Information and Guidelines to learn more about the CONFU process and its problems.

 

WHAT'S A TEACHER TO DO?

If even the experts can't agree on acceptable fair use guidelines for works created using new technologies, what can educators do? Fortunately, some resources are available. The most specific are those regarding educational multimedia projects created by teachers for instructional purposes or by students as part of course requirements.

In 1996, the Consortium of College and University Media Centers (CCUMC) convened a diverse group of publishers, educators, industry representatives, and legal experts to draft a set of fair use guidelines for educators and students to use while creating multimedia projects that include copyrighted works. The guidelines they developed, although not legally binding, do represent an agreement among most institutions and organizations affected by educational multimedia. Following the guidelines should keep you and your students safe from charges of copyright infringement.

 

FAIR USE GUIDELINES FOR MULTIMEDIA PROJECTS

The Fair Use Guidelines For Educational Multimedia state that educators who create educational multimedia projects containing original and copyrighted materials may use those projects for

  • face-to-face student instruction.
  • directed student self-study.
  • real-time remote instruction, review, or directed self-study for students enrolled in curriculum-based courses, provided there are no technological limitations on access to the multimedia project and that the technology prevents copying of the copyrighted material.
  • teaching courses for a period of up to two years after the first instructional use. After two years, educators must obtain permission for each copyrighted portion in the project.
  • presentation at peer workshops and conferences.
  • such personal uses as tenure review or job interviews.

The guidelines also allow students who create educational multimedia projects containing copyrighted materials to use their projects for

  • educational uses in the course for which they were created.
  • portfolios as examples of their academic work.
  • such personal uses as job and graduate school interviews.

The guidelines require, however, that all multimedia projects that include copyrighted materials

  • credit the sources, display the copyright notice, and provide copyright ownership information. (The credit identifies the source of the work, including the author, title, publisher, and place and date of publication. The copyright ownership information includes the copyright notice, year of first publication, and name of the copyright holder.)
  • state on the opening screen and on any accompanying print material a notice that certain materials are included under the fair use exemption of the U.S. Copyright Law and have been prepared according to the multimedia fair use guidelines and are restricted from further use.

The guidelines place restrictions on how the completed multimedia projects may be retained and stored.

  • No more than two copies of a project may be made. One copy may be retained by the creator; the other must be held in the school's library or media center.
  • Online instructional projects may be used only over a secure network for a period of 15 days after the initial use. After that period, one of the two copies of the project may be placed in the media center for on-site use by students enrolled in the course.
  • Students may not make their own copies of instructional projects.
  • Projects cannot be replicated or distributed for any purpose other than those listed in the guidelines without obtaining permission from all copyright owners.

The guidelines also limit the amount of copyrighted multimedia material that can be included in educational projects to

  • up to three minutes or 10 percent, whichever is less, of a single copyrighted motion media work.
  • up to 10 percent or 1,000 words, whichever is less, of a single copyrighted work of text.
  • an entire poem of less than 250 words or up to 250 words of a longer poem but no more than three poems by one poet or five poems by different poets from a single anthology.
  • up to 30 seconds or 10 percent, whichever is less, of music and lyrics from a single musical work.
  • up to five photographs or illustrations by one person and no more than 15 images or 10 percent, whichever is less, of the photographs or illustrations from a single published work.
  • up to 2,500 fields or cell entries or 10 percent, whichever is less, from a numerical database or data table.

The guidelines specifically exempt K-6 students from adhering strictly to those portion limits.

 

SOFTWARE AND THE WEB

The guidelines above refer only to the creation of educational multimedia projects, although they might also be used as a guide to help determine the applicability of fair use exemptions to Web-based technology. As a rule, however, the best way to determine whether your use of a multimedia resource is fair use is to relate it as closely as possible to a print resource. Do you want to download a Web-based graphic to create a slide show for next month's regional tech conference? Do you want to copy a table on metric conversions for tomorrow's math lesson? First determine whether you could use the works if you found them in a comparable print publication.

Fair use of computer software is another issue. At the present time, fair use applies only to software that has been purchased. Most software today is licensed to users, rather than owned by them, and its use is governed by the licensing agreement rather than by the fair use doctrine. Most licensing agreements do not allow users to copy and distribute commercial or shareware software, although some may permit copying a small section of code to illustrate a programming technique.

 

WHAT ABOUT THE CONFU GUIDELINES?

Of course, CONFU did propose fair use guidelines for new technologies, including Educational Fair Use Guidelines For Distance Learning, Educational Fair Use Guidelines For Digital Images and Fair-Use Guidelines For Electronic Reserve Systems. So, why not simply follow those guidelines -- even though the groups that developed them failed to endorse them -- until more universally acceptable guidelines are developed? The answer is, of course, go ahead, use them -- but be aware that many educators and librarians have reservations about them.

"It is unknown whether the guidelines developed [by CONFU] represent a 'safe harbor' for educators and librarians," Nancy Willard told Education World. "Some educators and librarians fear that following the guidelines will result in undercutting a more expansive scope of fair use. Following CONFU, members of a number of educational, scholarly, and copyright user organizations -- including the National Education Association, the National School Boards Association, and the American Library Association -- issued the following Conference on Fair Use Joint Statement:"

"CONFU participants' inability to craft consensus guidelines presents educators, scholars, and librarians -- and their national representatives -- with the opportunity and responsibility to explore the appropriate parameters of fair use to the extent that experience and good faith permit. Members of the educational, scholarly, and copyright user communities listed below, therefore, individually and collectively commit themselves to the following:
  • We will share experiences concerning: the application of new technology in library and educational environments, 'fair uses' made of copyrighted works, proprietors' responses to requests for permission to use copyrighted materials, and sources of helpful information regarding fair use and other privileges under copyright law;
  • We will participate in organized efforts to capture and disseminate such information;
  • We will assist in the development of 'User Community Principles' and educator- and librarian-generated 'Best Practices' concerning fair use, distance learning, and other activities supported by current copyright law;
  • We will work to extend the application of fair use into digital networked environments in libraries and educational institutions by relying on it responsibly to lawfully make creative use of information;
  • We will resist relying on any proposed code of conduct which may substantially or artificially constrain the full and appropriate application of fair use; and
  • We will encourage our members to reject any licensing agreement clause that implicitly or explicitly limits or abrogates fair use or any other legally conveyed user privilege."

"The unfortunate result of the situation," Willard said, "is that teachers are in an incongruent position of trying to push the limits of the fair use exception at the same time that they have an obligation to teach students about respect for copyright law."

 

EDUCATION WORLD'S COPYRIGHT SERIES

 

The Educator's Guide to Copyright and Fair Use
Part 1: Copyrights and Copying Wrongs
Part 2: Is Fair Use a License to Steal?
Part 3: Copyright Law and New Technologies
Part 4: Applying Fair Use to New Technologies
Part 5: District Liability and Teaching Responsibility

 

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
Education World®
Copyright © Education World

 

 

Updated 05/25/2010
 

 

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