Cecily Zamora
Copyright law is a complex topic, and it can be challenging for educators to navigate what constitutes fair use of copyrighted materials in their teaching. The concept of fair use is a critical exemption in education, allowing for the unlicensed use of copyrighted works under specific circumstances. This exemption aims to promote freedom of expression, which is vital in educational settings. To determine whether a proposed use falls under fair use, several factors must be considered, including the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the potential market effect. These factors are not exhaustive, and each case of copyrighted material usage must be carefully evaluated, even in educational contexts. While copyright law protects intellectual property, it also provides exemptions for educational purposes, recognising the importance of real-world context and credible sources in the learning experience.
| Characteristics | Values |
|---|---|
| Purpose | Nonprofit educational purposes |
| Nature of the copyrighted work | Creative works like books, poems, movies, songs, and modern art are protected |
| Amount | Directly related to the educational objectives of the course |
| Market effect | The use of copyrighted work should not harm the market or sale of the copyrighted material |
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Fair use guidelines for educational multimedia
Copyright law provides for the principle of "fair use", which allows the reproduction of copyrighted works for limited, educational purposes, without constituting copyright infringement. The four factors of the "fair use test" are:
- Purpose and character of use: The use must be for non-profit education purposes, rather than commercial purposes.
- Nature of the copyrighted work: The law of fair use applies more narrowly to highly creative works, such as novels, short stories, and poems.
- Amount and substantiality: Only small portions of the work relevant to the educational objectives should be used. For text and data, this means up to 10% or 1,000 words of a single work, 250 words of a poem, and no more than three poems by a single poet. For multimedia projects, this includes up to 10% or three minutes of a video or motion media work, and up to 30 seconds of music.
- Effect of the use: The use of copyrighted material should not harm the market or sale of the copyrighted work.
Educational fair use guidelines apply to materials used by students or faculty in educational institutions for non-commercial teaching, studies, presentations, or research. It is important to give attribution to the original source and include a copyright notice when using copyrighted material. To avoid the risk of legal issues, many institutions use content licensing companies to provide pre-cleared educational resources.
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Nonprofit educational context
Copyright law provides for the principle of "fair use", which states that the reproduction of copyrighted works for limited, educational purposes does not constitute copyright infringement. The "fair use" principle is highly fact-specific, and there are four factors that must be weighed to determine if the "fair use" exception applies.
- Purpose and character of the use: This factor considers whether the use is of a commercial nature or for nonprofit educational purposes. For example, sharing a link to a recent news article in a learning management system for instructional purposes in a nonprofit educational context is permissible.
- Nature of the copyrighted work: The type of copyrighted work being used is considered. For example, the law of fair use applies more narrowly to highly creative works such as novels, poetry, and art.
- Amount and substantiality of the portion used: This factor looks at the amount of the copyrighted work being used in relation to the whole. The more transformative the use, the less likely it is to cause market harm as the original and new works serve different purposes.
- Market effect of the use: This factor considers the impact of the use on the potential market for or value of the copyrighted work. Instructors should consider whether the copying harms the market or sales of the copyrighted material and whether the materials are reasonably available and affordable for students to purchase.
Educational fair use guidelines apply to material used by students or faculty of educational institutions for noncommercial teaching, studies, presentations, or research. Examples of educational institutions include K-12 schools, colleges, universities, libraries, museums, hospitals, and nonprofit organizations.
It is important to remember that there are no bright-line rules written into the law for fair use, and each use case of copyrighted material should be carefully considered as there are limits to what qualifies as fair use, even in a classroom setting.
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Face-to-face instruction
Copyright law can be tricky to navigate for educators, especially with the exponential growth of online teaching materials. However, copyright law does have several exceptions that allow for the use of various types of media in an educational context.
Instructors are allowed to use copyrighted materials for face-to-face instruction, as long as it is for a non-profit educational purpose. This means that films, articles, images, and other media can be used in a classroom setting as long as it is for instructional purposes. The TEACH Act permits the instructor to share images and other media with enrolled students, as long as the students are instructed not to share or download the content beyond their own individual study needs.
Educators must be careful not to photocopy or distribute entire works, as this is generally considered riskier and is less likely to be protected by fair use. For example, an instructor should not photocopy entire workbooks, textbooks, tests, or other consumable materials. The amount of the work used should be directly relevant to the educational objectives of the course.
Instructors should also consider whether the copying will harm the market or sale of the copyrighted material. Materials used in class should be cited and include a copyright notice, and instructors should consider whether the materials are reasonably available and affordable for students to purchase.
The four factors of the fair use test are:
- Purpose and character of use: whether the use is commercial or for non-profit educational purposes.
- Nature of the copyrighted work.
- Amount and substantiality of the portion used: the amount of the material used should be relevant to the educational objectives of the course.
- Market effect of the use: whether the use of the copyrighted work will negatively impact the market or sale of the material.
It is important to remember that there are no shortcuts or bright-line rules written into the law for fair use. Each use case of copyrighted material should be carefully considered as there are limits to what qualifies as fair use, even in a classroom setting.
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Copyrighted material in the classroom
Copyright law provides for the principle of "fair use", which states that the reproduction of copyrighted works for certain limited, educational purposes does not constitute copyright infringement. The "fair use" exemption applies to teaching, scholarship, criticism, comment, news reporting, research, and instruction. However, it is important to remember that there are no shortcuts or bright-line rules written into the law for fair use.
To determine whether a proposed use is fair, four factors must be considered:
- Purpose and character of use: Whether the use is of a commercial nature or for nonprofit educational purposes.
- Nature of the copyrighted work: Whether the work is factual or highly creative.
- Amount and substantiality: The amount of the work used in relation to the whole, and whether it is substantial or goes to the "heart" of the work.
- Market effect: Whether the use of the copyrighted work negatively impacts its potential market or value.
Educators should also consider whether the materials are reasonably available and affordable for students to purchase themselves. Only those portions of the work relevant to the educational objectives of the course should be used, and students should not be charged a fee for the materials.
Multimedia works, which combine copyrighted media elements such as motion media, music, text, and graphics, should only be used in small portions. For example, up to 10% or three minutes of a motion media clip, whichever is less, or up to 1,000 words of text.
Instructors should also provide a copyright notice and citation to the original source of publication. The American Library Association recommends using "Notice: This material is subject to the copyright law of the United States".
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Educational fair use guidelines
Copyright law is a complex area, and it can be challenging for educators to navigate what constitutes "fair use" of an image, video, written work, or quote. The concept of "fair use" is a critically important exemption in education, and it is relied upon in many different situations.
The Copyright Act establishes a four-factor test, the "fair use test," to determine whether a use of a copyrighted work is fair and does not require the permission of the copyright owner. The four factors are:
- Purpose and character of the use: This includes whether the use is of a commercial nature or for non-profit educational purposes.
- Nature of the copyrighted work: The type of work being used is considered, with the law of fair use applying more narrowly to highly creative works.
- Amount and substantiality of the portion used: Only the portions of the work relevant to the educational objectives of the course should be used, and it should not be substantial if the work is highly creative.
- Effect on the market for the copyrighted work: Consider whether the use of the copyrighted material will harm its market or sales.
It is important to remember that there are no bright-line rules written into the law for fair use, and misconceptions are common. For example, it is not true that "all educational use is fair use" or that "using 10% of any work is okay." While the 10% standard has been proposed and approved by a consensus of educators, scholars, and publishers, it has been rejected by at least one federal appeals court, which emphasized a flexible case-by-case analysis.
Educators should also be aware that copyright law applies to distance learning outside the classroom and the posting of materials on the internet. In these cases, it is likely that permission from the copyright owner is required. Additionally, copying and distributing works created by others is generally riskier, and educators should consider whether the materials are reasonably available and affordable for students to purchase.
To help navigate these complexities, many educational institutions are turning to content licensing companies to provide pre-cleared educational resources that can be licensed for educational purposes. Educators can also use tools such as password-protected spaces, Creative Commons licenses, and free resources like Project Gutenberg to find works that can be used without violating copyright.
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