Clarifying Copyright for Educators

A great deal of confusion exists in the educational community surrounding the issue of using copyrighted materials in classroom instruction. I was fortunate to attend Dr. Renee Hobbs' copyright workshop recently at the ISTE2010 conference, and captured these high-points of her presentation on the latest in copyright law. It should also be noted that ISTE NETS-T, section 4, urges educators to model and teach responsible digital citizenship. Only by becoming informed of our rights as educators can we fulfill this charge.

Everytime something is created, the U.S. Constitution automatically grants the creator certain rights controlling proliferation of their creative works. The intent of our Founders was to foster innovation and knowledge-sharing in early American society. According to Section 1, Article 8, U.S. Constitution, 1787:

"Government can establish a copyright system 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."

The next major piece of legislation governing copyright in the United States was the Copyright Law of 1976. The so-called "Fair Use Doctrine" contained in Section 107 of the Copyright Law of 1976 provides guidelines which allow educators to use copyrighted materials legally:

"The fair use of a copyrighted work is not an infringement of copyright. This includes reproduction in copies for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

a) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

b) the nature of the copyrighted work;

c) the amount and sustainability of the portion used in relation to the copyrighted work as a whole; and

d) the effect of the use upon the potential market for or value of the copyrighted work."

According to Dr. Hobbs, there is a limited educational exemption for classroom instruction (Copyright Clarity, pg. 23, Hobbs):

"Section 110(1) is the part of the Copyright Act of 1976 that allows educators to use 'lawfully made' copies of copyrighted materials in the classroom 'or similar place devoted to instruction' for educational purposes. What is a lawfully made copy?

* A photocopy of a printed article

* A school-purchased DVD

* A privately purchased copy of a DVD

* An off-air taped movie

* A rental DVD (from Netflix or Blockbuster)

Section 110(1) is like a narrow layer of extra protection for educators who use print or digital copyrighted materials in face-to-face teaching situations. But we should never interpret the law as saying we can 'only' use copyrighted materials in face-to-face teaching situations. For other situations, educators can rely on the doctrine of fair use."

I asked Dr. Hobbs after the workshop whether "Terms of Use" for digital media providers supercede Fair Use, and she said that in many cases it can--which she said is covered in the advanced portion of her 3-day workshop.

Another important point to understand on the subject of copyright, is "Creative Commons" licensing (Copyright Clarity, pg. 21, Hobbs):

"Creative Commons is an alternative licensing scheme, founded by Professor Lawrence Lessig, now at Harvard University Law School, which aims to make it easy for people to build upon other peoples' work. These licenses allow creators to enable how others can use their work. Many individuals and non-profit organizations have made their work available under these new licenses in order to encourage sharing. People can also make fair use of materials created under a Creative Commons license. But Creative Commons licenses will never be available for a lot of the materials that teachers and students need to use, especially those produced by large commercial media firms."

Transformative Use (Copyright Clarity, pg. 44, Hobbs) - Case study of Bill Graham Archives v. Dorling Kindersley (DK) (2006)

In this case, a book publisher used copyrighted images of concert posters in a larger work that was deemed of more benefit to society than the harm suffered by the copyright holder from such use. The court's opinion is summarized nicely in this posting by Christopher Meatto: http://harvardlaw74.com/casebook-quick-read-bill-graham-archives-v-...

The important point I take away from this case is when use of copyrighted material "...adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message." then it is allowed under Fair Use.

Dr. Hobbs also urged educators to inform themselves of these laws and come to their own conclusions on Fair Use when deciding whether to use copyrighted materials for instruction. If you can back up your use with sound logical reasoning, the courts will respect that, and typically mitigate damages to zero in cases where the educator was incorrect in his/her rationale.

Finally, there are some excellent copyright resources out on the MediaEducationLab website which Dr. Hobbs has assembled from her work at Temple University. At the workshop, she showed us a couple of fun music videos contained on the website which explain copyright in an engaging way:

User's Rights, Section 107 (alternative)

I encourage you to explore these and other resources contained on the Media Education Lab website to become informed on your rights as educators to use copyrighted works.

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Comment by David Ligon on August 1, 2010 at 9:27am: ***ADDENDUM***

Digital Millenium Copyright Act of 1998

The Digital Millenium Copyright Act of 1998 covered in Chapter 5 of "Copyright Clarity", is yet another law affecting educators which should be included in this discussion (although we did not focus much on this at Dr. Hobbs' 1 hour workshop). That law, sponsored by the music and recording industry, was intended to reduce media piracy but had the affect of preventing educators and students from using portions of digital songs and movies through a technology security process known as Content Scrambling System (CSS). Just a few days ago, Dr. Renee Hobbs and other educational copyright advocates won a DMCA exemption to CSS protection for educational purposes. On the downside, There appears a restriction imposed by the Copyright Office on which digital copying tools are allowed to be used, which is discussed in this news article: Copyright Office Decides on DMCA Exemptions, July 27, 2010