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The Educators' Lean and Mean No FAT Guide to Fair Use

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 on.

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 educational use.

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.

Setting Precedents

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).

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 television.

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 requests.

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.