Copyright and the Use of Other’s Works in the Educational Setting
Background
San Diego State University policy states,
The University shall protect and shall not infringe on the copyrights
of others within or without the University community. Use of copyrighted
works without permission of the owner may subject the user and the
University to liability from an infringement action or other possible
causes of action. Administration, faculty, staff, and students shall
restrict their use of copyrighted materials according to University
policies, University guidelines, applicable statutes, and relevant
court decisions.
There is often a misconception on university campuses that the use
of another’s copyrighted work is permissible, if it is not being sold
or is just being used for instructional or research purposes. Unfortunately
this is an oversimplification of what is permissible under United States
and international copyright laws. Members of the SDSU community should
make themselves aware of what the laws allow so that they may abide
by University policy.
U.S. Copyright Act
The U.S. Copyright Act, Section 106, grants the copyright owner the
exclusive rights to:
- reproduce;
- prepare derivative works;
- distribute to the public, and;
- publicly[1]
perform or display the work.
Fortunately for educators, the Copyright Act also provides several
limitations to these copyright owner’s rights. Those that are of general
importance to education include: fair use, Section 107; reproduction
by libraries and archives, Section 108; and exemption of certain performances
and displays, Section 110.
For further information see:
Fair Use, Section 107
Fair use has been used for years by educators to limit the exclusive
rights of copyright owners. Section 107 states, “… the fair use
of a copyrighted work … for purposes such as criticism, comment, news
reporting, teaching (including multiple copies for classroom use), scholarship,
or research is not an infringement of copyright.” However, it
is not as simple as it may sound in the quote above. There are four
criteria that must be considered when determining if a use may be considered
fair. They are:
- the purpose and character of the use;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used; and
- the effect of the use upon the potential market for or value of
the work.
Fair use, however, is difficult to interpret and “Although the
courts have considered and ruled upon the fair use doctrine over and
over again, no real definition of the concept has ever emerged. Indeed
… no generally applicable definition is possible, and each case raising
the question must be decided on its own facts.”[2]
Since it is difficult to determine what is “fair use” there
have been guidelines developed to assist (see Guidelines below).
For further information see:
- Circular 21: Reproduction of Copyrighted Works by Educators and
Librarians, U.S. Copyright Office, http://www.copyright.gov/circs/circ21.pdf
- Copyright Crash Course, University of Texas System, http://www.utsystem.edu/OGC/IntellectualProperty/cprtindx.htm
- Copyright Management Center, Indiana University, http://www.copyright.iupui.edu/
- Fair Use of Copyrighted Works, Consortium for Educational
Technology in University Systems, http://www.cetus.org/fairindex.html
- Guidelines for ECR [Electronic Course Reserves] Access
to Copyrighted Materials, SDSU Library, http://infodome.sdsu.edu/about/depts/reserve/copyright.shtml
Reproduction by Libraries and Archives, Section 108
Libraries are granted rights under Section 108 to duplicate, and allow
patrons to duplicate, materials in their collections within certain
restrictions. Acceptable uses include preserving deteriorating works
that are no longer available, and providing materials for research and
interlibrary loan.
For further information see:
Exemption of Certain Performances and Displays, Section 110
(Including Distance Learning)
Section 110 was amended in November 2002 to address the use of copyright
protected materials in distance learning. This revised section allows
faculty to provide certain materials to distant students via electronic
means, such as a website. There are a number of requirements and restrictions
including: allowing access to the materials to only those students enrolled
in the class, protecting the materials from being retained by a student,
limiting the amount of certain materials that may be included, and using
only materials that are an integral part of the instruction.
For further information see:
Guidelines
At the urging of Congress, attempts have been made to help define what
would be considered a fair use of copyrighted works. The guidelines
have never been enacted into law, and are usually compromises worked
out between groups representing copyright owners and educators, with
input from the Copyright Office. These guidelines do not supersede fair
use and sometimes contain language such as, “Uses that exceed
these guidelines may or may not be fair use,” and “The purpose
… is to state a minimum and not the maximum standards of educational
fair use…” They are often considered too restrictive by educators,
too liberal by copyright owners, and several have been ignored by certain
groups that feel they do not truly represent their best interest. However,
they provide guidance as to what is considered acceptable and offer
protection when followed.
Guidelines that have been developed include:
- Classroom Copying in Not-For-Profit Educational Institutions with
Respect to Books and Periodicals
- Educational Use of Music
- Off-Air Recording of Broadcast Programming for Educational Purposes
- Fair Use Guidelines for Educational Multimedia
- Photocopying and Interlibrary Arrangements.
For further information see:
Summary
It is incumbent upon us to protect the intellectual property, and associated
copyrights, of those who spend their time and money creating works.
We should be allowed to use materials, which we legally acquire, within
reasonable limits. The U.S. Copyright Law provides both protections
for the creator, and allowances for educators. The law is often confusing,
difficult to interpret, and constrains us in ways we don’t like. But
we can always, and should, ask permission[3]
of the copyright owner if we wish to use materials in ways that go beyond
what is permissible under fair use, other sections of the law, or the
various guidelines. Permission is often given, sometimes refused, or
at times agreed to upon payment of a fee. Those wishing to use materials
that are copyrighted in a foreign country will need to abide by that
country’s laws, which are often more restrictive than those of the United
States.
What is important is that we have made an effort to abide by SDSU policy
and have set an example for the students we teach.
[1] Publicly
refers to persons outside of the “normal circle of a family and
its social acquaintances”, thus performances or displays at SDSU
should be considered public.
[2] Circular
21: Reproduction of Copyrighted Works by Educators and Librarians,
U.S. Copyright Office, p. 6
[3] See
“Obtaining Permissions” in Fair Use of Copyrighted Works,
Consortium for Educational Technology in University Systems, http://www.cetus.org/fairindex.html
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