Is it fair?

FAIR USE

Copyright law attempts to find a balance between the rights of creators of original works and the public interest. The right of the owner of copyright to reproduce or authorize others to reproduce his work is subject to certain limitations, including the doctrine of fair use. The doctrine of fair use has been codified in section 107 of the U.S. copyright law (title 17, U. S. Code), which includes a list of purposes for which the reproduction of a particular work may be considered fair. (1)

Section 107 establishes four factors to be taken into account when determining whether or not a particular use is fair:

  1. “The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
  2. The nature of the copyrighted work
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  4. The effect of the use upon the potential market for, or value of, the copyrighted work.” (2)

There is no simple test to determine fair use. Fair use should be considered carefully for each situation by weighing the four factors cited above, and if there is doubt about the application of the fair use doctrine in a particular situation, then the use of the copyrighted material in question should not be used. (3, 4)

DISTANCE EDUCATION

The fair use exemption lists education, research, and scholarship among potential fair use scenarios. Although fair use allows educators to use copyrighted works without permission, however, “it should not be assumed that every use of a copyrighted work in an educational environment is a fair use.” (5) Additionally, citing the source of the work or restricting access to students only does not constitute fair use. (6)

Distance education raises additional issues about the use of materials for educational purposes. Digital multimedia, including PowerPoint Presentations, audio and video clips, and scanned documents, are often made available via course Websites or content management systems. (7)

The Digital Millennium Copyright Act, in an effort to extend copyright balance to digitized materials, in effect restricted the use of materials in online classes. The Technology, Education, and Copyright Harmonization Act (TEACH) addresses those restrictions by “expanding the Fair Use exemption of copyright law to include online education at accredited nonprofit colleges and universities.” (8) Under the TEACH Act, accredited, nonprofit educational institutions may transmit performances and displays of copyrighted works as part of a course, provided certain conditions are met.” (9)

In addition to considering the four factors established by section 107 of the U.S. copyright law, instructors should weigh how long the work will be available to students and if the location of the materials is restricted to students enrolled in the class. (10) The Copyright Advisory Office of Columbia University recommends that the content management system or course Website should include only material for which the instructor, the library, or another unit of the educational institution possesses a lawfully obtained copy.” (11)

CONTENT

An instructor may want to create content for a course and include material created by others. It is legal to link to copyrighted materials hosted elsewhere; therefore, an instructor can avoid potential copyright infringement by linking to a Website. Additionally, works in the public domain are owned by the public and are not protected by intellectual property laws. These works are free to be used and can be included in content without the consideration of fair use criteria. (12)

Some content can be found for use through Creative Commons licenses, the intent of which is to provide for the sharing of information. In fact, Creative Commons “licensing and contract arrangements include dedication to the public domain and open content licensing terms.” (13)  Creative Commons licenses support the Open Educational Resources movement by providing instructors with an avenue for remixing materials and lesson plans and redistributing lectures. (14)

SOURCES:

  1. http://www.copyright.gov/fls/fl102.html
  2. http://www.copyright.gov/fls/fl102.html
  3. http://www.ala.org/ala/issuesadvocacy/copyright/copyrightarticle/whatfairuse.cfm
  4. http://www.copyright.gov/fls/fl102.html
  5. http://www.ala.org/ala/issuesadvocacy/copyright/copyrightarticle/whatfairuse.cfm
  6. http://copyright.columbia.edu/copyright/fair-use/practical-applications/posting-course-materials-online/
  7. http://citl.indiana.edu/services/instructionalTechnology/fairuse.php
  1. http://www.washburn.edu/copyright/faculty/copyrightprimer.html
  2. http://citl.indiana.edu/services/instructionalTechnology/fairuse.php
  3. http://citl.indiana.edu/services/instructionalTechnology/fairuse.php
  4. http://copyright.columbia.edu/copyright/fair-use/practical-applications/posting-course-materials-online/
  5. http://citl.indiana.edu/services/instructionalTechnology/fairuse.php
  6. http://citl.indiana.edu/services/instructionalTechnology/fairuse.php
  7. http://creativecommons.org/education
Advertisements