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In this age of the Internet, classroom VCRs, and distance education,
many teachers and administrators aren't sure what they're allowed
to copy and use in their schools and classrooms. But it's important
to understand and comply with copyright laws and guidelines, both
to stay out of legal trouble and to set a good example for students.
Educators have special privileges under copyright law, but they
also have a special responsibility to respect -- and to teach
students to respect -- the intellectual property rights of others.
This responsibility is especially important now that the Internet
makes so much copyrighted material so accessible to so many people.
Copyright is a property right granted to authors as a stimulus
to creativity. Once an author's rights expire, the materials enter
the public domain, where anyone may use the material. Works copyrighted
before 1978 were protected for 28 years, and the author could
renew the copyright for an additional 47 years, after which the
works would enter the public domain. Works copyrighted in and
after 1978 are protected for the life of the author, plus 70 years.
If a work is produced by more than one author, then the copyright
extends through the life of the surviving author, plus 70 years.
According to the 1976 copyright law, a copyrighted work is "any
tangible medium of expression, now known or later developed, which
can be perceived, reproduced, or otherwise communicated, either
with the aid of a machine or device." Ideas cannot be copyrighted,
but the format in which the ideas are expressed can be.
In some areas involving such issues as photocopying and multimedia
productions, groups of educators, producers, and copyright holders
have developed "fair use" guidelines to clarify the rights of
educators to use copyrighted material for specific purposes. Typically,
these negotiated guidelines are presented to Congress, which,
essentially, gives its blessing without formally adopting the
guidelines as law. Educators might, in fact, have more legal rights
than fair use guidelines indicate, but the guidelines provide
a "safe zone" so educators can feel comfortable knowing they are
following agreed-on standards.
A committee of authors, publishers, and educators, for instance,
developed fair use guidelines for classroom and teacher photocopying
that were approved by Congress in 1976. These guidelines allow
classroom teachers to make single copies of a chapter of a book;
an article from a periodical or newspaper; a short story, short
essay or short poem; or a chart, graph, diagram, picture, or cartoon
from a book, periodical, or newspaper. As long as they give full
credit to the source when copying materials, teachers may also
make multiple copies of short poems and excerpts of long poems;
short articles; one chart, graph, diagram, or picture from a single
book; or short combinations of prose, poetry, and illustrations.
Copyrighted, syndicated cartoon characters are not permitted to
be copied, however, even for educational purposes.
As classroom technology has developed, so have copyright laws
and guidelines regarding the use of other media.
Taping broadcasts
In 1981 a congressional subcommittee developed guidelines for
off-air taping for educational use. These guidelines permit nonprofit
educational institutions to tape programs from open air (not satellite
or cable) broadcasts for instructional (not entertainment) use,
under the following conditions:
- The broadcast is recorded off-air simultaneously with broadcast
transmission and retained by the educational institution for
a period not to exceed 45 calendar days after the date of the
recording. The program then must be erased.
- Each teacher uses the taped programs only once with each
class during the first 10 consecutive school days of the 45-day
retention period. Programs may not be used with students after
that time. (School days do not include vacations, holidays,
weekends, examination periods, or other scheduled interruptions.)
After the first 10 consecutive school days, off-air recordings
may be used up to the end of the 45-day retention period only
for teacher-evaluation purposes and may not be used for student
exhibition or any nonevaluation purpose without authorization.
- Off-air recordings are made only at the request of, and used
by, individual teachers. Recordings may not be made regularly
in anticipation of requests. No broadcast program may be recorded
off-air more than once at the request of the same teacher, regardless
of the number of times the program may be broadcast.
- A limited number of copies are reproduced from each off-air
recording to meet the legitimate needs of several teachers requesting
the same program. Each additional copy shall be subject to all
provisions governing the original recording.
- The program is recorded in its entirety, including copyright
notice, and may not be altered. Off-air recordings may not be
physically or electronically combined or merged to constitute
teaching anthologies or compilations. But programs need not
be used in their entirety: During playback, sections may be
omitted that are not felt to be appropriate.
- The programs being recorded are transmitted by television
stations without charge to the general public. That is, these
guidelines do not pertain to cable or satellite broadcasts except
when permission has been granted by the copyright holders or
when the station is also available on open broadcast channels.
- Educational institutions establish appropriate control procedures
to maintain the integrity of these guidelines.
"Home Use Only" videocassettes
If an educational institution purchases a copy of a videocassette
bearing the warning label "For Home Use Only," the 1976 copyright
law allows use of the tape for face-to-face instruction with students
if the tape is incorporated as part of systematic teaching activities.
That is, teachers are not permitted to use these tapes just to
entertain students. Under the Section 110(1) performance exemption,
copyright law allows educators to use such tapes only for instructional
purposes unless a specific agreement was made at the time of purchase.
The use of rental videocassettes bearing the "Home Use Only"
warning label falls generally under the same Section 110(1) exemption
for education, depending how the video is rented. If the school
or an individual rents a video, but has signed a rental agreement
or a membership card that states that the use of the videos is
restricted to "Home Use Only," this rental agreement, or contract,
might override the special exemption given to educators. To be
on the safe side, make sure schools do not use videos that have
been rented under a signed agreement that restricts use solely
to "home use."
Networking and duplicating software
A network license is required for each individual software title
being loaded on the network. Simply loading a program onto a network,
without permission or a license, constitutes a copyright violation.
Many educational software companies offer network-licensed versions
of their products
Generally, it is a violation of the federal copyright law to
make duplicate copies of computer software. The federal copyright
law was amended in 1980 to allow the owner of a copyrighted computer
program to make or authorize someone else to make another copy
if the following criteria are met:
- The new copy or adaptation is created in order to be able
to use the program in conjunction with the machine and is used
in no other manner. In order to print on a printer not supported
by the software, for instance, it is permissible to add a printer-driver
program to a program, make a copy of the revised program using
the new printer driver, and use the revised program on the owner's
equipment.
- The new copy or adaptation is for archival purposes only,
and all archival copies must be destroyed if continued possession
of the computer program should cease to be rightful -- if, for
instance, the computer is sold with the working copy to another
individual. An archival copy is one that may not be used and
is kept in the event the working copy is damaged or destroyed,
at which time the archival copy may be placed in service. Note:
An archival copy is not a "back-up" master and may not be used
to generate another working copy.
- Any copies prepared or adapted are not leased, sold, or otherwise
transferred without the authorization of the copyright owner.
Multimedia productions
In 1996, Congress accepted a set of fair use guidelines developed
by a consortium of colleges and universities for using educational
multimedia. These guidelines apply when faculty or students wish
to incorporate in their productions segments of material taken
from a variety of copyrighted sources, such as CD-ROMs, laser
discs, audio recordings, and videotapes. The guidelines define
the nature of a multimedia production, under what conditions such
productions may be used, the length of time they may be kept,
and the limitations established on portions taken from a variety
of copyrighted sources.
In general, students may make a multimedia production to meet
the requirements of a specific course; to perform or display the
work in the course for which it was created; and to use in a portfolio
as proof of academic work, to support a position application,
or to support graduate school interviews.
Educators are permitted to make multimedia productions in order
to teach students how to develop multimedia productions, to deliver
curriculum-based instruction, to present at conferences, and to
include in a professional portfolio.
The guidelines set specific time limitations that determine
when and how long such productions may be used. Students may use
the production only during the time period of the class for which
it was produced, but may retain the production longer for portfolio
use. Educators may use the program in teaching courses for up
to two years after the first instructional use with the class,
but may retain the production longer for portfolio use.
Under these conditions, the guidelines set the following limits
on how much material may be used in a multimedia production:
Motion media -- up to three
minutes, or 10 percent of the original production, whichever
is less.
Text -- up to 10 percent,
or 1,000 words, whichever is less.
Poetry -- entire poems,
up to 250 words; no more than three poems per poet; no more than
five poems from a single anthology. If a poem is longer than 250
words, use is limited to 250 words from the selection; no more
than three excerpts by a poet; no more than five excerpts by different
poets.
Music, lyrics, and music videos
-- up to 10 percent of the original work, but no more than 30
seconds. Alterations are not permitted to change the basic melody
or character of the musical work.
Illustrations and photographs
-- not more than 10 percent, or 15 images, whichever is
less. No more than five images may be used from a single artist
or photographer.
Numerical data sets -- up
to 10 percent, or 2,500 field or cell entries, whichever is less,
from a copyrighted database or data table. "A field entry," according
to the guidelines, "is defined as a specific item of information,
such as a name or Social Security number, in a record or database
file. A cell entry is defined as the intersection where a row
or column meets on a spreadsheet."
The Internet
Many schools are encouraging teachers and students to create
materials that can be posted on the web. Special care must be
taken to make sure everyone is following copyright guidelines
and laws, because web postings are the widest form of publication
and obviously can provide evidence of possible copyright infringements.
What may be done legally in a classroom might not be legal on
the Internet or other electronic networks, because many of the
privileges granted to educators under the law are specific to
classroom use and not to transmissions.
Unless it is otherwise stated, assume that all materials on
the Internet -- including web sites and graphics -- are copyrighted,
and that existing copyright guidelines, such as those involving
photocopying, multimedia, and fair use, apply. The recent Digital
Millennium Act confirmed many of the rights of authors who have
had their works published on the Internet, but introduced some
special privileges for libraries and educational institutions.
Before Congress passed the Digital Millennium Act in October
1998, courts were beginning to hold Internet or online service
providers liable for what was carried on their systems. This was
a major, although often unrecognized, concern for schools and
libraries that had been wiring their institutions under the E-Rate
and creating wide-area networks to access the Internet. As Internet
and online service providers, schools and libraries could be sued
for activities taking place on their networks.
The Digital Millennium Act has placed limits on such liability
by not holding online service providers liable for transitory
communications (messages, programs, and data being sent over the
system); system caching (the temporary holding in memory of a
web site that has been visited); information stored on systems
or networks at the direction of the users; and information-location
tools, such as hyperlinks, online directories, and search engines.
But the preceding exemptions do not apply if the service provider
-- that is, the school or library -- is placing such information
on the system for use by its students, faculty, or patrons.
The Digital Millennium Act also attempted to outlaw the manufacture
and distribution of devices designed to circumvent the technological
protection measures (TPMs) that protect copyrighted materials
from being accessed by those not authorized to do so. (With this
provision, Congress hoped to head off a situation similar to the
one that occurred with cable television, when some people bought
descramblers so they could access special channels without paying
for them.) A special provision in the law would have allowed libraries
and educational institutions to circumvent TPMs for the purpose
of evaluating materials for possible use or acquisition. Once
the institution made a decision, any further browsing or use of
the material would have been illegal.
Effective lobbying efforts resulted in a two-year moratorium,
ending in October 2000, on the portion of the law related to accessing
copyrighted works protected by TPMs. During this moratorium, rules
are being developed to determine whether users, including libraries
and educational institutions, are likely to be negatively impacted
by such technological restrictions. Educators can certainly hope
that the result will be a provision that continues the access
privileges that have precedent in current fair use of copyrighted
materials.
Distance education
More copyright restrictions apply to distance learning classrooms
than to classrooms with face-to-face instruction. Transmitted
performances of nondramatic literary and musical works and displays
of works are permitted in distance education under the following
circumstances:
- The performance or display is a regular part of the systematic
instructional activities of a governmental body or a nonprofit
educational institution. A distance-learning teacher, for instance,
may read aloud from a text -- but not from a novel under copyright.
- The performance or display is directly related to and assists
with the teaching content of the transmission.
- The transmission is made primarily for reception in classrooms
or similar places devoted to instruction and/or to persons who,
because of disabilities or other special circumstances, cannot
be in classrooms or other areas devoted to instruction.
These exemptions do not apply to the performance of dramatic
works or dramatic-musical works; nor would they permit the use
of motion pictures or other audiovisual works. Schools desiring
to transmit copyrighted video, film, audiovisual works, or dramatic-musical
works (such as opera or musical comedy) still need to pursue licensing
rights.
But this might change. The Digital Millennium Act charged the
Copyright Office with conducting a distance-learning study and
producing a report, with recommendations, to help Congress decide
whether the current law met the needs of education or whether
modifications needed to be made. The report,
submitted in May 1999, can be found at . I recommend reviewing
the document and telling your legislators what you think. This
is especially important if you are interested in implementing
distance learning activities in your district.
It's also important to become familiar with the other information
available on the web sites listed on page 30. If you know the
rules, you can help your schools do the right thing in following
the copyright laws and guidelines.
Gary
Becker, manager of media productions
for Seminole County Public Schools in Sanford, Fla., is a national
copyright law consultant and the author of Copyright: A Guide
to Information and Resources, second edition, and other reference
works on the subject.
FOR MORE INFORMATION
Copyright
Information Sites
(source: Pennsylvania State University)
Copyrights
(source: Legal Information Institute)
Fair
Use Documents for multimedia and distance learning
(source: Pennsylvania State University)
U.S. Copyright Office,
Library of Congress
When Works
Pass into the Public Domain
(source: Cornell University Law Library)
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