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Copyright Education Project
Transcript of Copyright Education Project
for Middlebury Faculty My dear Faculty members:
I'm just a small owl, but I know a lot about copyright! I want you to feel confident about the right way to use copyrighted materials in your teaching. I promise to make it easy to understand! Shall we begin? Because this is the section that limits the exclusive rights of copyright holders "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research ..." We'll make it easy for you! Fair Use 101 There are many, many sections within the 1976 Copyright Act. My very favorite section? Section 107! You know why I like this section? But wait just one sec: there are some hoops we need to jump through first. The hoops are called the "Four Factors," and you should get to know them. They are ... 1
Purpose and character of the use 2
Nature of the copyrighted work 3
The amount used in relation to the whole 4
The effect of the use on the market Don't laugh! Owls are a little nerdy by nature! Once you understand Fair Use, the whole world opens up! Using copyrighted materials for educational purposes (as opposed to for-profit /commercial purposes) is generally favored as fair use. However, educational use does not equal a "slam dunk" -- all factors need to be considered.
The idea of a use being "transformative" is very important in a fair use evaluation, and that plays into the second factor ... When we talk about this factor, what we mean is: what is this material? Is it factual/scientific? Is it highly creative like a poem or song? Usually, the more "factual" the material, the greater likelihood that its use will be considered fair.
But this is where we should think about "transformation." Consider the use of a poem in class: its nature is creative, which would weigh against fair use. But then we should think about the first factor (purpose of use). And its purpose in a creative writing class, for example, might be to demonstrate how the syntax is working in an Elizabeth Bishop poem. And we realize that this use is transforming the work from one thing (a creative expression) to another (a lesson in prosody). "It is like what we imagine knowledge to be:
dark, salt, clear, moving, utterly free,
drawn from the cold hard mouth
of the world ..." Let's stay with these first two factors for a bit longer and think about the flip side of the poetry example.
Consider the use of a "Spanish for Beginners" workbook. The nature of the work is obvious. And when used in a Spanish 101 class, it's hard to argue that the workbook is being transformed into something new. In fact, it's being used exactly as it was intended. So while the use is educational, it is not transformational, and this weighs against a fair use evaluation. But wait! We still have two more factors to consider! The implication with this factor is that the less material used, the more likely it is to be fair use. The more used, the less likely. Think about novels, journal articles, collections of essays. What portion of these items should be considered "fair"? You may have heard about certain fair use "rules of thumb" over the years: using only 10% of a book, or only one or two chapters, and so on. These rules of thumb are not based in the law, and are very often needlessly restrictive. I want to caution you against relying on "bright lines" regarding fair use. Fair use, for better or worse (but mostly for better!), is an essay question, not true/false. And for this we should rejoice, because it gives us flexibility in ways that rules like "only use 10%" cannot. In some cases the use of an entire work could be considered fair. Think about a haiku, a song, a photograph -- in these examples, the entirety of the material must be used in order for the educator to make her point. One cannot typically use just the bottom corner of a photo! Robert Frank, "The Americans" --Elizabeth Bishop
from "At the Fishhouses" Hang in there, here comes the final factor! This is the "let's think about money!" factor: the one where we determine if there will be economic harm to the copyright owner due to our use. It's important to only use the amount needed for your teaching, and no more. If one chapter will suffice, use just one -- not three. Remember the word "appropriate" when determining the amount. Think about it this way: if we provide this material to our students for free, how will the market be affected?
At the same time, ponder this question: who is the market for this material? If a student needs to read the new Michael Chabon book, cover to cover, for his class on contemporary fiction, he needs to buy it. The purpose of the use may be educational, but between the nature of the work (creative), the amount (all of it), and the effect (significant), one would be hard-pressed to say this use is "fair." For example: a student needs to use a calculus textbook in her calculus class. She is clearly the market for this textbook. The class will use most of the book during the semester. What would happen if the professor scanned the whole book and made it available online? The market would certainly be affected by this action: x number of students would no longer need to buy this book. Did you notice how naturally the third and fourth factors speak to each other? Amount and effect? Here's a different kind of example that looks at amount and effect: a professor is using a few chapters from a book on the history of psychology. This book is not written with undergrads in mind; rather, it's aimed at scholars in the field. A student who needs to access a relatively small portion of the text is not the primary market for this book. A strong argument for fair use should be made! OK, so you've learned about the four factors, and I've given you some examples. Maybe you're thinking: "duh, silly owl, of course I can't scan an entire textbook!" Or, "yeah, I know that using a small amount is fine and dandy." What you're really wondering is: how do I solve the fair use questions that aren't so obvious? Here are some of the tricky questions I've gotten
from faculty over the years:
Want to assign a large portion of a text, but the book is out of print and used copies cost $200 a pop
Need to make an entire symphony recording available online for their students
Want to share several chapters of their unpublished manuscript on E-Reserves
Received an article via interlibrary loan and want their students to read it
Want to compile an assortment of film clips for use on a course website First, please remember: your friends in the library are here to help! We want you to use the very best resources for your teaching, and we want you to do so legally and with confidence! There are plenty of available resources to help us answer tough copyright questions. Here's a cheat sheet to use when you're not sure how to proceed: First, check to see if the material in question is still under copyright! I like to use this handy chart from Cornell:
http://copyright.cornell.edu/resources/publicdomain.cfm Next, search the Copyright Clearance Center to see if Middlebury's "Academic License" allows for a more expansive use of the material than would typically pass under a fair use evaluation:
Please note: just because a use isn't permissible under the CCC license doesn't make the use illegal, or impossible to justify under fair use. It just means that we need to be more careful about our determination; I'll show you how! Under copyright? Or in the Public Domain? Copyright Clearance Center Fair Use Evaluator So the material in question is under copyright, and the CCC license isn't helping. Let's assume you've already done a quick-and-dirty fair use evaluation in your head; let's now formalize the process with the incredibly helpful Fair Use Evaluator:
This program will step you through each of the four factors, and allows you to enter info specific to the particular case. When it's finished you can print a hard copy, or save a pdf, as a record that you made a good-faith effort to determine fair use. Ownership You'll notice that I haven't mentioned a thing about "ownership" yet -- that's because it doesn't appear anywhere in Section 107! Whether you or the library owns an item, or not, doesn't factor into a fair use evaluation. However, it should be considered a "best practice" to know these things. So, search for the book, film, or CD in our catalog:
http://biblio.middlebury.edu/search~S2 Answers ... kind of ... The classic answer to every fair use question is: it depends! And it applies to those tricky questions that I mentioned earlier. But let me give you my first impressions anyway:
Large portion of out-of-print text? The unreasonable price of used copies could help a fair use argument
Entire symphony recording online? If a case is made that the entirety is needed for teaching
Unpublished manuscript on E-Reserves? OK only if the rights haven't been assigned to a publisher (who has right of 1st publication)
Interlibrary loan article? Possible, since ownership isn't part of fair use
Film clips on course website? Could make an argument for transformational use Just remember The more you use fair use, the easier it gets! Until you feel like a pro, please be in touch with any questions.