With the widespread use of the Internet to access resources for education, teachers and students are faced with issues of intellectual property rights far more complex than in the old days of the simple photocopy machine – although photocopies remain an issue. Books limited copyright defenders to publishers and authors, music to songwriters and record companies; the Internet has opened up a wide world of creators and distributors in new and old media who are forcefully protecting their intellectual property rights .
The law itself has been widely seen to be stilted towards copyright owners, particularly since the Digital Millennium Copyright Act (DMCA). Record labels’ lawsuits against illegal music downloaders have created an aura of criminalization about copyright. And yet the continually evolving culture of the Internet, which favors collaboration and the use of derivative works, is still a step ahead of the law Given the prevalence of the ever-changing, all-encompassing media landscape, educators should be concerned about their ability to teach about popular culture without violating copyright by using necessary examples from the media in their classes. Some believe that educators have more freedom under the fair use doctrine than they or the general education profession believes.
What is fair use? It is the right to use copyrighted material without asking or payment under some circumstances – especially when the cultural or societal benefits of the use prevail . This would seem to make fair use a broadly applicable standard for education. In fact, there are specific exemptions for teachers in Sections 110(1) and (2) of the Copyright Act (for “face-to-face” in the schoolroom and equivalent practices in distance education. However, most school districts and teachers operate under what critics regard as limited interpretations of fair use that in turn constrain what is used in the classroom. The best litmus test to see if your use of materials fall under fair use is to refer to the four factors a judge would consider:
1.The purpose and character of your use;
2.The nature of the copyrighted work;
3.The amount and substantiality of the portion taken, and
4.The effect of the use upon the potential market.
When considering purpose, fair use is more likely when the copyrighted work is “transformed” into something new or of new utility, such as quotations merged into a paper, and perhaps pieces of a work intermingled into a multimedia product for your own teaching needs or included in commentary or criticism of the original.
When considering nature, or the characteristics of the work, courts prefer the fair use of nonfiction, rather than fiction. Commercial audiovisual works generally receive less fair use than do printed works. A consumable workbook will definitely be subject to less fair use than would a printed social science text.
Amount is measured both quantitatively and qualitatively. No exact measures of allowable quantity exist in the law. Quantity must be evaluated relative to the breadth of the entire original and in light of the amount needed to serve a proper aim. One may also reproduce only a small portion of any work, say the key scenes of a film, but still take “the heart of the work.” This concept is a qualitative measure that may weigh against fair use.
Effect on the market is perhaps even more complicated than the other three factors. This factor means fundamentally that if you make a use for which a purchase of an original theoretically should have occurred—regardless of your personal willingness or ability to pay for such purchase—then this factor may weigh against fair use. Occasional quotations or photocopies may have no adverse market effects, but reproductions of software and videotapes can make direct inroads on the potential markets for those works.
The Internet and the traditional library are both requisite tools for today’s teachers and students. Yet the use of materials found in person or on line may be covered by the fair use doctrine or qualify as copyright infringement. Copyright law undergoes steady change and no court can keep up with today’s pace of technological change. Use the four factors cited above when in doubt about your use of copyright material.
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