THE EDUCATOR AND THE COPYRIGHT LAW
(A QUICK REFERENCE SOURCE)INTRODUCTION
As an educator, you must know about the copyright law and how it applies to the work that you perform. At some point all educators are likely to be faced with an event or activity that bears directly on the copyright law. The law limits what you may copy, under what conditions, and for what purposes. Authors and producers have specific rights under the law that cannot be denied. The law was also designed, however, to enable educators and students to have access to information and to reproduce copyrighted materials under clearly defined limitations for educational purposes. An understanding of the concept of fair use is a key factor in determining what may or may not be copied. Section 107 of the copyright law states that,
the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section (Sec. 106) for the purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use) scholarship, or research is not an infringement of copyright.
Furthermore, Section 107 lists the following four criteria for evaluating the fair use of copyrighted materials in an educational setting:
- *the purpose and character of the use, including whether such is of a commercial nature or is for nonprofit educational purposes,
*the nature of the copyrighted work,
*the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and
*the effect of the use upon the potential market for or value of the copyrighted work.
Books, Workbooks, Dramatic Scripts, Periodicals, Poems, Articles, Microforms, Charts, Graphs, Diagrams, Drawings, Cartoons, Photographs, Paintings, Maps
Single Copying for Teachers
A single copy may be made of any of the following by or for a teacher at his or her individual request for his or her scholarly research or use in teaching or preparation to teach a class: chapter from a book, article from a periodical or newspaper, short story, short essay or short poem whether or not from a collective work, chart, graph, diagram, drawing, cartoon or picture from a book, periodical or newspaper.
Multiple Copies for Classroom Use
Not to exceed in any event more than one copy per pupil in a course, multiple copies may be made by or for the teacher of the course for classroom use or discussion. The copying must meet the tests of brevity, spontaneity, and cumulative effect as defined below and must include a notice of copyright.
Note: With the exception of a single copy of a cartoon, multiple copies of a single illustration per book or per periodical issue may be made.
DEFINITIONS
Brevity
POETRY: A complete poem if less than 250 words and if printed on not more than two pages or, from a longer poem, an excerpt of not more than 250 words.
PROSE: Either a complete article, story, or essay of less than 2,500 words, or an excerpt from any prose work of not more than 1,000 words or 10% of the work, whichever is less, but in any event a minimum of 500 words.
Note: Each of the numerical limits above may be expanded to permit the completion of an unfinished line of a poem or an unfinished prose paragraph.
ILLUSTRATION: One chart, graph, diagram, drawing, cartoon, or picture book or per periodical issue.
SPECIAL WORKS: Certain works in poetry, prose, or in poetic prose which often combine language with illustrations and which are intended sometimes for children and at other times for a more general audience fall short of 2,5000 words in their entirety. Such special works may not be reproduced in their entirety; however, an excerpt comprising not more than two of the published pages of such special work and containing not more than 10% of the words found in the text thereof, may be reproduced.
Spontaneity
The copying is at the instance and inspiration of the individual teacher, and the inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission.
Cumulative Effect
The copying of the material is for only one course in the school in which the copies are made.
Not more than one short poem, article, story, essay or two excerpts may be copied from the same author, nor more than three from the same collective work or periodical volume during one class term. There shall not be more than nine instances of such multiple copying for one course during one class term.
Note: The limitations stated above shall not apply to current news periodicals and newspapers and current news sections of other periodicals.
Prohibitions
Copying shall not be used to create or to replace or substitute for anthologies, compilations, or collective works. Such replacement or substitution may occur whether copies of various works or excerpts therefrom are accumulated or reproduced and used separately. There shall be no copying of or from works intended to be consumable in the course of study or of teaching. These include workbooks, exercises, standardized tests, test booklets, answer sheets, and like consumable materials. Copying shall not substitute for the purchase of books, publishers' reprints, or periodicals. Copying shall not be directed by a higher authority or repeated with respect to the same item by the teacher from term to term. No charge shall be made to the student beyond the actual cost of photocopying.
Printed Scores, Arrangements, etc.
Permissible Use
Emergency copying to replace purchased copies which for any reason are not available for an imminent performance provided purchased replacement copies shall be substituted in due course.
For academic purposes other than performance, multiple copies of excerpts of works may be made, provided that the excerpts do not comprise a part of the whole which would constitute a performable unit such as a section, movement or aria, but in no case more than 10% of the whole work. The number of copies shall not exceed one copy per pupil.
For academic purposes other than performance, a single copy of an entire performable unit (section, movement, or aria, etc), that is confirmed by the copyright proprietor to be out of print or unavailable except in a larger work, may be made by or for a teacher solely for the purpose of his or her scholarly research or in preparation to teach a class.
Printed copies which have been purchased may be edited or simplified provided that the fundamental character of the work is not distorted or the lyrics, if any, altered or lyrics added if none exist. In no case can you write a derivation arrangement of a copyrighted work and then photocopy (reproduce) it for classroom use.
Prohibitions
*Copying to create or replace or substitute for anthologies, compilations or collective works
*Copying of or from works intended to be consumable in the course of study or of teaching such as workbooks, exercises, standardized tests and answer sheets and like material
*Copying for the purpose of performance, except as noted above in an emergency
*Copying for the purpose of substituting for the purchase of music, except as noted above in an emergency
*Copying without inclusion of the copyright notice which appears on the printed copyRECORDS, DISCS, and AUDIO TAPE RECORDINGS
A single copy of a portion of a sound recording may be made by or for a student (i.e. song from a record, but not the entire recording). The copy can only be used in the educational context in which it was made and may not be sold or performed for profit.
A single copy of the recordings of performances by students may be made for evaluation or rehearsal purposes and may be retained by the educational institution or individual teacher.
A single copy of the entire sound recording of copyrighted music or a portion thereof may be made from sound recordings owned by an educational institution or an individual teacher for the purposes of constructing aural exercises or examinations and may be retained by the educational institution or individual teacher.
Note: Making multiple copies of a sound recording is questionable and must not create or replace or substitute for anthologies, compilations, or collective works. The criteria of fair use, as stated above, must be carefully considered in such a case. Questions pertaining to multiple copies of sound recordings should be referred to the copyright proprietor for permission to copy.
FILMS and FILMSTRIPS
(for Slide Programs)A single copy of a portion of a copyrighted film or filmstrip may be made by a student for educational purposes if the material is owned by the school which the student is attending.
A single copy of a small portion of a film or filmstrip may be made by or for a teacher for scholarly or teaching purposes. Note: Extreme care must be exercised in this instance as the small portion of the film or filmstrip may contain the very essence of the material in question. The fair use guidelines, as stated above, must be carefully evaluated before undertaking this kind of reproduction.
Caution
No one is permitted to copy any portion of a film or filmstrip sent to the school for preview or rent or owned by another school or institution without the express written permission of the copyright holder. The copyright of a film governs the performance (showing) as well as the copying of it. It is permissible to show a film to students using closed-circuit television if the system is confined to one building. Showing a film via closed-circuit television outside the building is not permitted.
RADIO (Off-Air Taping)
A single copy of a small portion of a copyrighted radio program may be made by a student for educational purposes. Such a copy may not be sold or performed for profit.
Copies of broadcasts by National Public Radio may be made by schools and retained for an indefinite period for educational purposes.
Copying of broadcasts on commercial radio, except for copyrighted musical selections (see above section on Records, Discs, and Audio Tape Recordings), is governed by the same copyright laws that apply to off-air taping of commercial television; however, there is no special provision allowing libraries to tape radio news programs (see below on Television).
A broadcast program may be recorded off-air simultaneously with broadcast transmission (including simultaneous cable retransmission) and retained by a non-profit educational institution for a period not to exceed the first forty-five (45) consecutive calendar days after the date of recording. Upon conclusion of such retention period, all off-air recordings must be erased or destroyed immediately. Broadcast programs are television programs transmitted for reception by the general public without charge.
Off-air recordings may be used once by individual teachers in the course of relevant teaching activities and repeated once only when instructional reinforcement is necessary. These recordings may be shown in classrooms and similar places devoted to instruction within a single building, cluster, or campus, as well as in homes of students receiving formalized home instruction, during the first ten (10) consecutive school days in the forty-five (45) calendar day retention period. School days are school session days not counting weekends, holidays, vacations, examination periods, or other scheduled interruptions within the forty-five (45) calendar-day retention period.
Off-air recordings may be made only at the request of and used by individual teachers, and may not be regularly recorded in advance of requests. No broadcast program may be recorded off-air more than once at the request of the same teacher, regardless of the number of times the program may be broadcast.
A limited number of copies may be reproduced from each off-air recording to meet the legitimate needs of teachers under these guidelines. Each such additional copy shall be subject to all provisions governing the original recording.
After the first ten (10) consecutive school days, off-air recordings may be used up to the end of the forty-five (45) calendar day retention period only for teacher evaluation purposes. (i.e. to determine whether or not to include the broadcast program in the teaching curriculum) and may not be used in the recording institution for student exhibition or any other non-evaluation purpose without authorization.
Off-air recordings need not be used in their entirety, but the recorded programs may not be altered from their original content. Off-air recordings may not be physically or electronically combined or merged to constitute teaching anthologies or compilations.
All copies of off-air recordings must include the copyright notice on the broadcast programs as recorded.
Note: The copying or use of video tapes from subscription programs transmitted via subscription television cable services such as HBO or Show Time is illegal. Such programs are licensed for private/home use only and may not be used in public schools.
HOME VIDEOTAPE OR RENTAL STORES *Alachua County has a public performance license for movies by several companies so the statement below does not apply to them. See Public Performance of Videos .
Teachers and pupils are exempt under Title 17, Section 110(1) to perform copyright works in face-to-face instruction, with the following limitations:
The performance is part of a systematic course of instruction and not for entertainment, recreation or cultural value.
Attendance at performances is limited to the pupils enrolled in the course and to their teacher(s).
The performance is given in a classroom or a similar place devoted to instruction, including libraries and gymnasiums, so long as attendance limitation (item 2) is satisfied.
The performance is given from a legitimately made copy, which was not sold under license or contract restricting school performances.
Educational institutions should attempt to rent video programs from sources who indicate, in their rental agreements, that performance rights have been granted for instructional or entertainment use in an educational setting. Do not assume!The Compact Disk-Read Only Memory storage of large amounts of printed and graphic material has led to the release of bibliographic and research based source materials. When an institution purchases such an item, the database may be accessed as a reference source. As such, faculty and students may copy sections as per the guidelines for the reproduction of the other printed materials for the purpose of research and teaching.
However, a question has arisen as to the possibility of networking multiple computers to access one CD-ROM reader/player and its software. Currently, the consensus of legal interpretations is that unless the database information is in the public domain, this would be considered a potential infringement in lieu of the purchase of multiple copies for more than one reference station. This interpretation in no way restricts an institution from negotiating a purchase agreement or license which would allow such an activity to take place.
Back-up copies
You may make a backup copy of a computer program for archival purposes in the event your original copy is destroyed or damaged. This copy is not to be used on a second machine at the same time as the original. You may adapt a program to meet your needs, but you cannot copy, give away, or sell an adaptation of a program and you cannot make multiple copies of adaptations for instructional use.
Multiple-loading or booting from one disk into multiple machines at the same time and Network use
Unless the software has a license that explicitly permits you to do so, you would likely be in violation of the copyright laws if you loaded multiple computers with programs from one disk for use at the same time. The legal concept is "proliferation of simultaneous users" and is designed to protect the copyright holder from loss of sales. In the absence of a network license, you would likely be in violation of copyright laws if you downloaded a program through your network to multiple stations at the same time. The law does imply that software may be loaded and used on one computer and then after it has been turned off it may be loaded into another computer.
CONVERTING PROGRAMS TO A DIFFERENT FORMAT AND TRANSFERRING PROGRAMS TO HARD DISK
In general, changing a copyrighted work from one format to another is considered creating a derivative work, a right reserved for the copyright holder. The safest recommendation would be to contact the copyright holder (producer) of the material desired to be converted and request permission to make this change.
TAPING FROM SATELLITE
Direct satellite reception at one location site on a campus or in a school building appears to be permissible, assuming the signals were not scrambled when transmitted. The redistribution of the signal through a closed circuit system or by videotape is not considered permissible, unless a license or agreement has been reached for such redistribution of the original signal.
In terms of recording or retransmitting programming intercepted from other countries, the United States has entered into an international satellite convention (agreement) which prohibits the unauthorized interception and redistribution of such signals. Educational institutions desiring to utilize satellite programming should negotiate rights with the appropriate copyright holders or appropriate foreign government offices regulating transmissions from countries.
CLOSED CIRCUIT TELEVISION TRANSMISSIONS
Section 110(1) of the copyright law provides a specific classroom exemption from the performance right, allowing the showing of motion pictures and other audiovisual works for the purpose of "face-to-face teaching activities." In attempting to clarify the limitation of the terms "face-to-face" and whether this must be interpreted literally, clarification is found in the House of Representatives report in relation to this section of the law. The intent of this exemption is to allow the use of motion pictures and other audiovisual works for classroom instructional purposes, on-site. As long as the instructor and pupils are in the same building, the exemption would extend to using electronic devices for amplifying sounds and transmitting images. Section 110(1), therefore, doesn't require that the teacher and students must be able to see each other, but it does require their simultaneous presence in the same place. By definition, this exemption would exclude closed circuit, ITFS or cable transmissions between buildings or campuses, but is interpreted to permit closed circuit distribution within a building. (According to Gary Becker in Copyright a Guide to Information and Resources, 2nd Edition, "within a building" would include all buildings making up a a single school such as a high school. It would not include a campus consisting of more than one school.)
The preceding right to perform for classroom instructional use is limited, however, if you purchase or rent the material and the purchase agreement or rental contract indicates that permission is not granted for use over a closed circuit system. A number of the major audiovisual distributors sell their films and videocassettes with direct performance privileges. It is important one carefully reads all contracts and the conditions of the purchase agreement before assuming that one may employ the Section 110(1) exemption. One way to protect yourself and your institution at the time of purchase or rental is to state, on your purchase order, your intent to use the material for closed-circuit distribution in your building. If the order is filled, you have a document that can be used to support a challenge of copyright infringement.
PROHIBITIONS OF REPRODUCTION
OF AUDIOVISUAL WORKS*No duplication of cassette tapes for archival, backup, or for multiple use unless reproduction rights were given at the time of purchase.
*No reproduction of musical works (i.e. records) or converted into another form for use, such as audiotapes.
*No reproduction of "ditto masters" produced commercially as individual items, in sets, or as part of a multi-media kit if they are available for sale separately. (Once the master is used up in the ditto process, it may not be photocopied or reproduced in any other manner unless permission is obtained.)
*No reproduction of any audio-visual work in its entirety, except for off-air taping as per the guidelines given under Off-Air Taping.
*No conversion of one media format into another, i.e. 16mm to videotape.
*No narrating entire stories onto audio tape.SCHOOL BOARD OF ALACHUA COUNTY POLICY ON REPRODUCTION OF COPYRIGHTED MATERIALS (EGAA)
School Board employees may reproduce copyrighted materials under the copyright provisions of the United States Code, Title XVII. Any reproduction of copyrighted materials shall be done either with the written permission of the copyright holder or within the bounds of the Congressional "Fair use" guidelines; otherwise the individual responsible for reproduction may be liable for breach of copyright under existing laws.
Willful infringement may result in disciplinary action. In the case of a court action for damages, a finding of willful infringement would preclude the Board paying any judgment rendered against the employee or paying any attorney's fees or costs incurred by the employee in conjunction with a lawsuit, and may render the employee liable to the Board for any damages the Board is deemed liable to pay.
COPYRIGHT INFRINGEMENT
The copyright law specifies a normal penalty of from $250 to $10,000 in statutory damages for each violation, but the penalty can be as much as $50,000 for willful violation. Even if a defendant is judged not to be in violation of the law, court costs and attorney's fees must still be borne by the individual and/or organization charged with the copyright infringement.
PERMISSION TO COPY
If a question exists as to whether a particular act of copying might be in violation of the copyright law, it is prudent to request permission. A copy of each request must be kept on file in the school and an additional copy forwarded to the appropriate subject area coordinator.
The request should include the following information as appropriate:
Title, Author(s), Editor(s), or Publisher, Producer(s), or Distributor
Edition, Copyright and/or Production Year
Exact amount of material to be used (i.e. lines, running time, etc.)
Reference to the initial contact individual, by name, in the letter if the initial contact was made by phone
Nature of the use (i.e. how many times, when, and with whom the material will be used)
Number of copies to be made
How the material will be reproduced______________________________________________________
Adaptation of two brochures entitled "Print Material and Copyright Law: An Educator's Responsibilities and Rights" and "Nonprint Media and the Copyright Law: An Educator's Responsibilities and Rights" from the Anne Arundel County Public Schools, Annapolis, Maryland. Permission was granted for copying. Additional information was used from the "Copyright Packet" developed by FAME Copyright Law Implications Committee (September 1987) and The Copyright Game Resource Guide by Gary Becker.
Please refer to the following sources for additional information on copyright:
- Washington Newsletter, November 15, 1976
- Copyright and Educational Media
- Applying the New Copyright Law: A Guide for Educators and Librarians
- Using Copyrighted Videocassettes in Classrooms and Libraries
- Copyright and the Librarian
- The Copyright Game Resource Guide
- 20 Questions Librarians Ask About Taping Copyrighted Television Programs for Educational Use
