Copyright

There are three exceptions to the exclusive rights in copyright that help serve educational needs:

Face-to-face teaching – Section 110(1)

Allows performance or display of protected material in a face-to-face teaching setting.

Must be in a classroom and at a non-profit educational institution.

Does not allow copying. This is an exception to the exclusive rights of performance and display, but not the right of reproduction.

Copying may still be allowed by fair use, however.

Performance and display in the classroom must employ a legally obtained copy – no “bootleg” copy is eligible for this exception, but borrowed copies are OK.

“Transmission” to registered students – Section 110(2), a.k.a. The TEACH Act

Allows digital copies in course management systems under a specific set of conditions.

Text and images may be transmitted (displayed) in amounts comparable to in-class teaching.

Music and video may be used in portions; entire songs may be used if “non-dramatic.”

Access must be restricted to students registered in the course, and notice that the material is protected must be given.

Technological measures to prevent the material from being retained after the course is over or copied to others are required. Streaming of music and video is a good way to meet this requirement.

The institution should have policies and educational programs about copyright in place to take advantage of this exception.

Fair Use – Section 107

A flexible exception that allows socially valuable uses of copyrighted material, including educational copying.

Fair use applies in many situations, but its application is never certain. A good faith decision in each situation is important.

Four factors are balanced to determine fair use:

1. The purpose of the use should be for non-profit education. If the use adds to the original in some creative way (like commenting on a poem or making a parody), the fair use argument is stronger.
2. Factual material is more susceptible to fair use; creative work like music and art gets stronger protection. Unpublished work also gets more protection
3. Use only that amount of the original work that is necessary to accomplish the educational purpose.
4. Avoid uses that substitute for purchasing available copies; damaging the market for the original counts heavily against fair use.

For a quick overview of what you can do with copyrighted material in the classroom, see Know your Copyrights from the Association of Research Libraries.

1. They must be shown as part of the instructional program.
2. They must be shown by students, instructors, or guest lecturers.
3. They must be shown either in a classroom or other school location devoted to instruction such as a studio, workshop, library, gymnasium, or auditorium if it is used for instruction.
4. They must be shown either in a face-to-face setting or where students and teacher(s) are in the same building or general area.
5. They must be shown only to students and educators.
6. They must be shown using a legitimate (that is, not illegally reproduced) copy with the copyright notice included. Further, the relationship between the film or video and the course must be explicit. Films or videos, even in a "face-to-face" classroom setting, may not be used for entertainment or recreation, whatever the work's intellectual content.

Agreement on Guidelines for Classroom Copying in Not-For- Profit Educational Institutions With Respect To Books And Periodicals Multiple Copies for Classroom Use:

Multiple copies (not to exceed in any event more than one copy per pupil in a course) may be made by for the teacher giving the course for classroom use or discussion, provided that:

Original text available in the document located at http://www.copyright.gov/circs/circ21.pdf

1. The copying meets the tests of brevity and spontaneity as defined below; and,
2. Meets the cumulative effect that as defined below; and,
3. Each copy includes a notice of copyright.

Definitions:

Brevity:

• a) Poetry: (a) A complete poem if less than 250 words and if printed on not more than two pages or (b) from a longer poem, an excerpt of not more than 250 words.
• Prose: (a) Either a complete article, story or essay of less than 2,500 words, or (b) 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. (Each of the numerical limits stated in "i" and "ii" above may be expanded to permit the completion of an unfinished line of a poem or of an unfinished prose paragraph.)
• Illustration: One chart, graph, diagram, drawing, cartoon or picture per book or per periodical issue.
• "Special" works: Certain works in poetry, prose or in "poetic prose" which often are intended sometimes for children and at other times for a more general audience fall short of 2,500 words in their entirety. Paragraph "i" above notwithstanding 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:

i. The copying is at the instance and inspiration of the individual teacher; and ii. 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:

i. The copying of the material is for only one course in the school in which the copies are made. ii. 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. iii. There shall be not more than nine instances of such multiple copying for one course during one class term. (The limitations stated in "ii" and "iii" above shall not apply to current news periodicals and newspapers and current news sections of other periodicals.)

Prohibitions:

Notwithstanding any of the above, the following shall be prohibited: A. 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 are reproduced and used separately. B. There shall be no copying of or from works intended to be "consumable" in the course of study or teaching. These include workbooks, exercises, standardized tests and test booklets and answer sheets and like consumable materials. C. Copying shall not: a. Substitute for the purchase of books, publisher's reprints or periodicals; b. Be directed by higher authority; c. Be repeated with respect to the same item by the same teacher from term to term. D. No charge shall be made to the student beyond the actual cost of the photocopying.