copyright and fair use

Copyright is a form of protection provided by the laws of the United States for original works of authorship fixed in a tangible medium of expression. This includes literary, dramatic, musical, architectural, cartographic, choreographic, pantomimic, pictorial, graphic, sculptural, and audiovisual works. (https://www.copyright.gov/help/faq/definitions.html

Basics

1. Owners of a copyrighted work have the exclusive right to reproduce, distribute, publicly perform, publicly display, and create derivatives of that work. Copyright violations occur when someone other than the copyright holder uses the work in one of these manners, without the permission of the copyright holder.

Exclusive Rights:

• • • to make copies of their works

    • to publicly perform and communicate their works to the public, including via broadcast

    • to make adaptations and arrangements of their works

    • to make authorized translations of their works

2. Copyright does not protect facts or ideas themselves, only the expression of those facts or ideas.

3. Generally speaking, copyright is automatic the moment a work becomes a tangible medium. This goes back to the point above--the work must go from idea or concept into actual expressed form.

4. Copyright protection lasts a long time. Currently in the United States, the copyright term is the life of the creator plus 70 years.

Purpose of Copyright

Utilitarian

• Copyright is intended to provide an incentive to creators with the aim to encourage the creation of new works.

• This purpose could be tied to the monetary and legal connection of a creator to the work.

Author's Rights

• Copyright is intended to guarantee attribution for creators and to preserve the integrity of creative works.

• This purpose could be tied to recognizing the personal connection creators have with their works.

Section 107 of the Copyright Act:

“The fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” (https://www.copyright.gov/title17/92chap1.html#107)

"The only way to get a definitive answer about whether an instance is fair use is to have it resolved in court. Judges consult and consider the four factors." (https://fairuse.stanford.edu/overview/fair-use/four-factors/)

Factors of Fair Use Determination

1. The purpose and character of the use, including whether such use is of a commercial nature, or is for nonprofit educational purposes;

2. The nature of the copyrighted work;

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4. The effect of the use upon the potential market for or value of the copyrighted work.

In addition to copyright, there are other laws governing intellectual property rights. So while copyright may not be the condition applicable to a particular scenario, one of the following may be and therefore due attention must be given.

Trademark Law

The general purpose of trademark law is to protect the public from being confused about the source of a good, service, or establishment. It also helps producers of goods and services protect their reputations. Finally, it can help the public by giving them a simple way to differentiate between similar products and services.

Example

If you saw a restaurant with the iconic Golden Arches symbol on its sign as you drove down the road, you would assume that the restaurant was either a McDonald's or an entity associated with McDonald's. Your assurance of your belief in the restaurant's identity and therefore available products is a result of trademark law.

Patent Law

The purpose of patent law is to give inventors a limited time during which they retain a monopoly over their invention. Typically, patents give inventors the exclusive right to make, have made, use, have used, offer for sale, sell, have sold, or import the inventions covered by the patents. The monopoly is only temporary as the intent is to balance the exclusive rights with the need to progress new ideas as a benefit to society.

Patent law appears in Article 1, Section 8, Clause 8 of the U.S. Constitution wherein Congress is empowered "To promote the progress of science and the useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

Example: Take a look at the patent for Eli Whitney's cotton gin, which is part of the the National Archives. Primary source documents like this patent are freely available online through the National Archives and include background information as well as teaching resources.

As an employee of the Wake County Public School system, you should be aware of related school board policies:

• WCPSS School Board Policy 3230/7330 Copyright Compliance

• WCPSS School Board Policy 3225/4312/7320 Technology Responsible Use

Using Questionable Resources

• Pirated material of any format is illegal under the law. Use of that material is a further violation. Educators should not use materials that are in violation of copyright law even if the educators in question did not originate the violation.

• Material should be acquired through legal, appropriate means (ex. no bootleg or homemade recordings). This often means that schools must purchase resources at a cost.

Legal Ramifications of Copyright Violations

In the News: Houston Independent School District (TX) was found by a federal jury to owe $9.2 million to DynaStudy, a company that makes test prep materials. The federal jury determined that Houston ISD teachers and administrators repeatedly violated copyright. Read further in this article from the Houston Chronicle.

When creating content (presentations, handouts, websites, etc.), pay attention to the licensing and permissions of images, audio, etc. that you include. Use sources that are already in the public domain or have greater permissions for non-commercial use, like education.

Examples:

• Creative Commons licensing (copyright holder grants permission for certain types of use, sometime requiring attribution)

• Public Domain (works owned by the public)

When it's appropriate, include source citations on classroom materials and presentations. This can be done under images, at the end of the document or on a final slide, or in the form of in-text citations. Word of caution: Simply citing a source and/or copyright owner does not equate to permission. The clearest path to permission is to make a request of the copyright owner. With documented permission from that source, fair use is unnecessary.

Evaluate the resources you recommend to students to make sure they follow ethical use guidelines. Model good decisions about sources, citations, and fair use.

Creative Commons is an entity that allows individuals and organizations to freely and legally share knowledge and creative products. Creative Commons provides copyright licenses in a standardized format that simply and clearly indicate permissions and conditions. (https://creativecommons.org)

Understanding Creative Commons Licenses

Creative Commons provides six license options in a standardized format that simply and clearly indicate permissions and conditions. The licenses are founded in copyright. So if copyright would normally apply, then it is also an instance when Creative Commons could be a licensing option should the creator choose.

From a user standpoint, following the guidelines of each license applies when one would comply with copyright. However, instances of fair use mean that the Creative Commons license's guidelines are not applicable. Example: A teacher could make a derivative of a work with a CC BY-ND or CC BY-NC-ND license if the circumstance qualifies as fair use.

No matter the circumstances of the use, it is always best practice to provide attribution for the work. Additionally, it is often easier to follow the rules of the license than try to determine if fair use is at play. The licenses are permissive to the user in their nature as they follow the broader emphasis on the benefits of sharing.

Choosing and Applying a Creative Commons License

Creative Commons licenses, including the CC0 license for public domain, are irrevocable, meaning that they are a legal agreement that cannot be cancelled. Once you apply a Creative Commons license to a work, the license applies to the work until copyright expires. (Remember: Life of the creator plus 70 years)

To assign a Creative Commons license to a work, you must either own or control the copyright for the work. You also can only apply a CC license to the part of the work within the larger whole for which you are responsible as the originator. A Creative Commons license does not apply to elements that have their own copyright terms.

Example: With EL Education materials, EL Eduation has a CC BY 4.0 license on all of the work that EL Education has created. However, there are works within the EL Education curriculum that have copyright terms unto themselves. Think of works written or produced by other creators. In those instances, EL Education obtained the rights to use those works and thus educators must abide by that agreement and only use as the works have been provided.

Deciding on a License:

First, a creator must decide:

1. Why they want to share the work

2. How they hope others will use the work

The Creative Commons website has a tool that walks through these questions so that a creator can choose the right license based on the intent.

Applying the License:

1. When a creator adds a license to a work, it's recommended to include a link to the explanation of the license that can be found on the Creative Commons website.

2. A creator should make it clear what the CC license covers and locate the notice in a place that is clear to the public and/or other users.

3. A full notation includes:

   1. T - title of the work

   2. A - author of the work

   3. S - source of the work (i.e. a link to the resource if applicable)

   4. L - license of the work with a link to the CC license information

Example: Copyright and Fair Use Toolkit by Kendra Allen is licensed under CC BY-NC-SA 4.0

• A creator should indicate in the work is based on someone else's work.

  • If a creator's work is a modification or adaptation of another work, it should be indicated along with attribution to the creator of the original work with a link to the original work if possible.

The public domain is not a place. A work of authorship is in the “public domain” if it is no longer under copyright protection or if it failed to meet the requirements for copyright protection. Works in the public domain may be used freely without the permission of the former copyright owner. (www.copyright.gov)

Because copyright no longer extends to works in the public domain, then any of the six licenses in the Creative Commons suite also do not apply and cannot be applied.

How do works become part of the public domain?

1. The copyright has expired.

2. The owner failed to follow the copyright renewal rules.

3. The copyright owner deliberately put it in the public domain (see below).

4. Copyright law does not protect this type of work.

PRO TIP:

Just because the work is old or the author is dead, it doesn't automatically mean the work is in the public domain. Additionally, the absence of a copyright symbol does not mean the work is in the public domain.

Public Domain Tools

When you locate something that is in the public domain, it could have one of two markings indicating its public domain status. Each marking represents different qualities, including the legality of the work as being assigned to the public domain officially.

CC0: CC Zero or Creative Commons Zero

This license allows creators to dedicate their works to the worldwide public domain to the greatest extent possible. This has a legal effect on the work as the copyright holder, the creator, is making the distinction that they have given their permission to share their work with "no rights reserved." If you find a resource with this marking or notation, you can safely know that it can be used freely without any implications of possible violations.

Public Domain Mark

This is a label used for works that are known to be free of all copyright restrictions. Unlike CC0, however, it is not a legal tool; the label is meant to be informative about status. For example, it is often used by museums and archives that work with very old materials, which by definition would fall out of copyright and into the public domain by status of age and nature of the rights belonging to the works and their creators. As you come across materials, this is also a helpful indicator to distinguish works that have public domain status.

• Advanced Search in Google images:

  • Go to Settings

  • Select Advanced Search

  • Scroll down to Usage Rights

  • Select:

    • "Free to use or share"

    • "Free to use share or modify"

• Other ethical image options:

  • Unsplash

  • Pixabay

  • The Noun Project(Note: differences between free and paid registration)

  • Wikimedia Commons

  • Library of Congress Prints and Photographs Online Catalog

  • Digital Public Library of America

The best way to avoid any potential copyright violations is to create your own image, photo, etc. This goes for students as well. When you author your own content, you are the intellectual property right holder. By using photos you take, for instance, you have full rights to alter, copy, publish, distribute, etc. Stock photos can be fun, but let your creativity flow.

Licensing stipulations and user agreements prevent schools and individual teachers from accessing, showing, and broadcasting streaming video content unless specifically allowed by the video content provider. In WCPSS, video content accessed through Discovery Education or PBS Videos (via NCWiseOwl) can be used freely by students and staff for instructional use. Use of services such as Netflix, Hulu, and Amazon Prime--among others--is prohibited on the basis of licensing violations. The single exception is stated below.

Netflix

Netflix is extraordinarily specific about the exception for which a school may be granted permission for "educational screenings of documentaries." To use Netflix outside of the terms in this statement is a violation of the user agreement to which a Netflix account holder contractually agreed upon signing up for the service. A school cannot have a Netflix account. Only specific titles are available to be used under this special use agreement.

Copyright owners have the sole right to reproduce their work. This includes creators of books, art, music, and theater. If a school makes a recording of a creative work, they have created a reproduction that requires permission from the copyright holder. The performance rights for music vary depending on how the music is used. Musical and theatrical licensing houses can facilitate the purchase of proper licenses, similarly to how schools may purchase a Public Performance License to show movies in their aftercare program.

If schools wish to live-stream or record performances, they should first investigate the following:

• • Are additional public performance licenses required? See further resources from:

    • National Association for Music Education

    • Harry Fox Agency

    • Music Theatre International Do’s and Don’t of Licensing

    • ASCAP License Agreement for Wake County (includes WCPSS)

  • How does the act of streaming or recording the performance hold up when considered within the four factors of fair use:

    • Nature of Use--Is the streaming or recording for non-profit use? If so, then it favors fair use.

    • Nature of the Work Used--Typically, performances use works that are highly creative (music, theater, a recording of a book read aloud), and most performance rights stipulate a face-to-face setting. This means that streaming and recording situations do NOT favor fair use. However, if technical measures are used so that the live-stream or recording can only be viewed by students within the school, this weighs more strongly in favor of fair use.

    • Amount of Work Used--If a work is reproduced in its entirety, this does NOT favor fair use.

    • Effect on the Market--Are there licensing fees that a copyright holder is owed in order for you to perform the work in a recording or live-stream?

As with most issues of copyright, these situations are dependent on multiple factors. The arts and music educators in your building can be additional resources to help you understand how the creative works students perform are licensed.

Step 1:

If the text is available for purchase in an audio format, that should be the first choice of action whenever possible if time and budget allow. With purchase, students other than those with specific needs will also be able to have access and equal benefit.

Step 2:

A text may be recorded by the nonprofit, educational institution directly serving the student with the documented disability. However, it may only be used by the student with the IEP/504 Plan at the point of need. It cannot be distributed, copied, or used with other students. (Reference Copyright.gov, Section 121)

Locating and using illegally-produced videos of book read-alouds from sites like YouTube, even if used only with students with 504 Plans/IEPs, is not permissible. The allowance granted by law specifically states that only the educational institution serving the student has rights to make a recording at the point of need for the specific student per the 504 Plan/IEP.

There are websites with granted permission for recorded readings (ex. Storyline Online)

The WCPSS Special Education department can also be contacted for information regarding BookShare access for students who meet the criteria. If locating material online, teachers should verify rights have been obtained by the site from the publisher before using.