The Educators' Lean and Mean No FAT Guide to Fair
By Hall Davidson
You can't afford to ignore the law, but neither can you afford to overlook
the needs of your students. The good news for educators heading into a
new millennium is that abiding by--and helping to shape--fair use copyright
principles and guidelines is really not that difficult. For help, read
Is it legal for students to use copyrighted clips from videos, CDs, or
the Internet to create multimedia reports? Can they save these into digital
portfolios or post them on a school Web site? Does it violate copyright
law for teachers to show this student work at educational conferences?
These are the sorts of questions that abound in technology-rich schools
today. While some educators set poor examples by blatantly ignoring the
law, many others find themselves paralyzed by all the uncertainties. This
is unfortunate, since thorough knowledge of "fair use" as it
has been interpreted over the years is all that is needed to answer many
of the most common questions related to multimedia today.
In those gray or controversial areas in which legal precedents have not
yet been set, common sense and a willingness to blaze new and ethical
trails may be your best guides. In fact, there exists the opportunity
for educators knowledgeable in copyright law to stake out reasonable uses
that will help ensure an enlightened legal digital age for teachers in
the new millennium. Understanding Fair Use
Those of you using technology for instruction may be pleasantly surprised
at what is legal and ethical. This is because of fair use--the great legislative
hall pass given by government to educators (and others involved in education
or criticism) in section 107 of Title 17 of the 1976 Copyright Act. Under
certain circumstances, this pass allows teachers to navigate safely through
the corridors of copyright protection. The pass is powerful but valid
only in places dedicated to instruction.
The Digital Millennium Copyright Act signed into law in October of 1998
updated aspects of copyright law. It did not, however, change the basic
concept of fair use. Courts judge fair use cases based on the so-called
four factors. These are: the purpose of the use, the nature of the work,
the portion used, and the effect on the market. The intent of section
107 is clear, but the details--how much is too much to use, for example--were
never defined in the law. Over the years, however, a number of groups
have convened to draw up guidelines for users. Perhaps the best known
are the guidelines set into the congressional record in 1981 by the House
subcommittee headed by Robert Kastenmeier, and the multimedia guidelines
adopted in 1998 by the Conference on Fair Use. The latter are not legally
binding rules and they do have their critics who believe they limit fair
use too severely. There's little doubt, however, that sticking to these
conservative guidelines will keep you out of trouble.
Here are some general misconceptions that might have led you to the
"wrong" answers: You thought it was about money. Copyright is
about control. It doesn't matter whether or not what you did involved
money. What matters more is whether or not it had to do with instruction.
Instructional use gives you an exemption; nonprofit use does not. You
thought it was about giving credit, you're complying with copyright laws.
Even if you give credit, using copyrighted materials without permission
is forbidden for all but a narrow range of purposes. You thought copyright
law was criminal law. Copyright issues for the most part fall under civil,
not criminal, law. No one can give or get exemption from criminal law
(as President Clinton and Dr. Kevorkian found out), but copyright holders
can offer whatever latitude they want with their own copyrights. Cable
channels, PBS, certain artists, and others have authorized extended rights
for schools. You thought copyright protection was created to protect people
or enrich them. Copyright in America was born to "promote science
and the useful arts," not to protect commercial interests. It was
to benefit society at large. Public education benefits the same society.
The No FAT Guide
So what is the bottom line? What can teachers and students do in the digital
age? As new media take hold, it is often possible to apply older guidelines
to newer scenarios. But how do you proceed when the old rules don't apply?
I would like to propose a rule of thumb I think will help.
Before I provide this advice, I should warn you that I'm not an attorney.
Ken Starr and F. Lee Bailey, just for reference points, are attorneys.
True, I have done presentations with attorneys and have given copyright
workshops for educators across the country, but why should you take copyright
advice from somebody who is not a lawyer?
Well, as you probably know, intellectual property attorneys are terrific
to have around when you're in trouble or want the clear-cut rules of case
law laid out as they apply to you. In gray, misty areas without clear
precedent, however, they tend to err on the conservative side. It's what
they get paid for. If you're looking to do the right thing as an educator
in the new millennium, there are times when you'll need to be guided by
common sense rules such as the one I call "The No FAT (Fear And Trembling)
Educators' Gray Area Guide to Fair Use."
Here's how it goes. If you're considering using copyrighted materials
for instructional purposes, do it!...provided that:
1. you are in a place dedicated to instruction and the material will stay
there (rather than being distributed to a wider audience);
2. you are using a legitimate copy as your source;
3. the service or resource you are using is not available for sale for
In other words, don't use technology for entertainment or reward; don't
pretend the cafeteria or auditorium is a classroom when it's not; and
don't use bootleg copies of videos, CDs, or software. The creation of
a video yearbook may be an educational project, but giving or selling
it to the world at large is not. Don't do multiple simultaneous boots
of software when a school site license is for sale. Buy or don't buy educational
products, but don't steal them.
Overall, know your fair use history, use common sense and be ethical.
Oh yes, and don't miss the opportunity to ask questions or share your
stories with us online this month at www.techlearning.com.
Technology tends to run ahead of the law, causing problems for educators
who want to do the "right thing" without holding their students
back. Applying older guidelines doesn't always work. For example, a small
portion of a symphony recording might be sufficient for a music theory
course (the sort of situation the creators of most fair use guidelines
focused on), but a much larger percentage of a political song might be
necessary for a soundtrack illustrating a particular point in a multimedia
project. Similarly, one could argue that a distinction needs to be made
between Web sites posted for the general public and those meant for a
select audience (parents of students at a particular school, for example,
or participants in an international educational project).
One of the only ways fair use will be broadened to keep up with the times
is if educators and educational institutions demonstrate all the good
things that can result when the law is enlightened. For proof that the
choices you make today really can affect the law, we have to look back
only as far as the VCR.
Back in the 1970s, Universal, representing a consortium of studios and
other copyright holders, sued Sony, representing the manufacturers of
VCRs. These machines were, by their very nature, recording devices and
the manufacturers were building television tuners right into them, making
it possible to tape television programs and movies off the air. The manufacturers
were making money selling the machines, but were not sharing it with the
makers of the material being recorded.
This unauthorized duplication would seem to be a pretty clear case of
copyright infringement. But by the time it reached the U.S. Supreme Court
in 1983, VCRs were becoming ubiquitous and it appeared they were not seriously
harming the copyright holders. What's a Supreme Court to do? They responded
not by altering the law of the land but by changing the laws of physics.
They ruled that people with VCRs were not really copying material. They
were "time shifting"--simply changing the time at which they
were viewing broadcast material. It turns out the Supreme Court made a
fantastically wise decision. VCRs opened up a huge new market. Studios
sometimes now make more money on tape sales than on theatrical releases.
Hardware manufacturers like Sony, seeing the future, actually bought studios
and other content creators. If the law had preceded the practice of technology,
this almost certainly would not have happened. So the common users of
the home VCR beat a path that industry and the law followed. The rights
of the copyright holders were made secondary to the benefit of society
and, in the end, even the copyright holders benefited.
Multimedia Fair Use at a Glance
Wondering what exactly you can do when creating educational presentations
using each of the media below? Here's a quick summary of current fair
use guidelines and practices.
Audio: Teachers can copy portions of recordings for academic purposes
other than performances and use them with students. The Conference on
Fair Use (CONFU) multimedia guidelines suggest limiting the portion used
to 10 percent and no more than 30 seconds--although this is an area where
educators involved in multimedia authoring with students might eventually
push the envelope (see "Setting Precedents," page 64).
Video: You can use videotapes and movies for instruction. (Note: Watching
an entire movie may not have much instructional value unless you're teaching
a film class.) School-made VCR recordings are more like library books
that can be kept for a set time. According to widely accepted guidelines,
you can show them for up to 10 days after the broadcast and keep them
for an additional 45 days for evaluation purposes. If you want them longer,
somebody generally has to pay for them--unless the distributor has chosen
to grant educators broader rights, as is often the case with educational
Multimedia: Authoring for curriculum-based projects may include
material from CDs, books, the Internet, and other sources. The resulting
projects cannot be distributed outside the classroom community, although
they can be shared with family members since students' homes are considered
to be part of the learning community.
Internet: Taking things off the Web and using them in projects
is OK, but posting them back online is not. You might say it's like the
difference between cutting things out of the newspaper and making copies
of the paper to resell. Posting on a protected Intranet, however, is permissible
since it's viewed as remaining inside the classroom community. It is generally
believed that "implied public access" permits Web site builders
to include links to other sites without requesting permission. Netiquette
dictates removing such links, however, if the site being pointed to so
Distance Learning: The issue of extending classroom walls electronically
was addressed by the U.S. Copyright Office earlier this year in a report
to the Senate. The Copyright Office recommends extending to teachers and
students in a distance learning course the same fair use rights they would
have in a regular classroom. In other words, the mere fact that the class
is being taught using digital transmission should not cause it to be interpreted
as a public distribution or performance. Return to top
Hall Davidson is executive director of educational services and telecommunications
at KOCE-TV in California where he has received numerous awards including
an Emmy for Best Instructional Series.