Copyright for Instructors

November 22, 2016
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Navigating copyright for class materials can be difficult, especially where digital media is concerned. While many educational uses of digital media constitute fair use, fair use law is complicated, and media producers (especially film) often do things to prevent piracy that also make it difficult-to-impossible for us to exercise our fair-use rights.

That said, there are some things that are clearly allowed within an educational context, and some helpful online resources for navigating the grayer areas.

Following is a summary of basic guiding principles for legally using digital media in educational settings. Note that I am not a lawyer. However, I am both a teacher and a creative professional (musician, editor, coder, web designer), and have read and thought about these issues a lot. Hopefully what follows will be of help to you.

Overview

The University of Texas has an excellent crash course on copyright, which describes the basic legal rights of content creators.

The Copyright Act gives all authors a set of rights that only they may exercise. These include the right to make copies, to prepare derivative works, to publicly distribute, display and perform the work, and in the case of digital sound recordings, to perform the works over a digital network.

With this short set of rights, you would have near perfect control over your works, in fact, too perfect a control over your works. So, the law provides some breathing room so that the public can benefit from the increased numbers of works, which after all is the goal of the law. To use those works, the public enjoys rights to display their own copies, to lend them or give them away, even to sell them, and to reproduce parts of the works in certain circumstances, even to reproduce the entire work in some cases, as a fair use. For more information about fair use, read Fair use of copyrighted materials.

A creator’s rights persist for their entire lifetime, plus 70 more years. After that, works become part of the public domain, and anyone can use them for any purpose, without attribution or paying royalties. (Note that new republications of public domain works are still public domain, but new critical editions that contain original scholarship alongside, even inside, the original content are copyrighted.)

And it is worth noting that these rights belong to an author whether or not they claim them or include a copyright notice on their work. That wasn’t always the case, but under current law, any fixed created work is copyrighted. (Not every type of work is copyrightable, though. See this page for more info.)

Fair use

While there are a few well defined use cases in which the use of copyrighted material is definitely legal or definitely illegal in the US, there is a large gulf of practices that fall somewhere in between. In those cases, the definitive ruling of legal/illegal comes only when the copyright holder sues the party using the material and a judge rules on it. That’s incredibly unhelpful for those of us making use of copyrighted materials in our own work, but this flexibility is there in order to allow for informed reason to prevail in situations that could not be anticipated in detail by lawmakers.

Generally, courts take the following four parameters in mind when deciding if a use of copyrighted material is illegal or fair use:

  • Purpose – Is the purpose academic, commercial, personal, religious, accessibility? No purpose wholly exonerates or implicates, but it does tip the balance along with the other three parameters.
  • Nature – What is the nature of the work that incorporates copyrighted material ― published, unpublished, fiction, non-fiction, artistic, educationally important, a parody? Again, this tips the balance, but doesn’t make the ruling on its own.
  • Amount – How much of the original work is appropriated by the new work? Small amounts favor fair use, but large amounts do not rule it out. Again, it depends on the four parameters taken together.
  • Effect – What is the (typically financial) effect on the copyright holder of the work being appropriated? Does it eat into their ability to make a living/profit off of selling the original? Does it promote purchase of the original? Does it open up a new market not already engaged by the original?

Taken together, these four parameters are weighed by a court to decide how “fair” (or infringing) the use is. Columbia University has put together a Fair Use Checklist to help people determine ahead of time if their use is likely to fall under fair use. There is no simple formula, but the more boxes you tick under “favoring fair use” and the less you tick under “opposing fair use,” the safer you are.

Reasonably safe practices

Fair use law is fluid, and hard for non-lawyers (and most non-IP lawyers, and even some IP lawyers!) to parse. However, both case law and legal/industry consensus have led to a collection of practices that are generally understood to constitute fair use. If you are doing one of those things, you’re probably safe. (Again, I’m not a lawyer, but I’m pretty confident in these based on my research.)

Here are some of those practices:

  • You have the right to make a backup copy of any media you purchase, to ensure that you don’t lose the content if the original is destroyed, or to use the backup on a daily basis in order to preserve the original. (Think musicians writing notes on their sheet music and violently turning pages during practice, but preserving a clean original copy.)
  • You have the right to make a copy of media you purchase onto another format (called format shifting) for personal use, such as putting music from a CD onto an mp3 player (or back in the day, a cassette tape) so you can listen to it in your car or while exercising.
  • You have the right to sell media you purchase to someone else, as long as you don’t retain any copies you have made (called the law of first sale).
  • You have the right to loan media you purchase to others.
  • You have the right to make a transformative (as opposed to derivative) work.
  • You have the right to make a parody work (think Weird Al Yankovic).
  • Asking a copyright holder whether or not a particular use case constitutes fair use in their eyes makes it less likely to be fair use in the court’s eyes. In other words, in gray cases, it is legally better to ask for forgiveness than permission.
  • Musicians cannot perform a copyrighted work from a photocopy. They must perform from the original sheet music (or from memory, of course!), though they are allowed to use copies in a live performance for the purpose of facilitating page turns.

There are, however, a couple common educational cases where things are rather murky:

You have the right to quote passages or include audio/video clips in your own creative work, with attribution, but without obtaining permission or paying royalties. However, what constitutes the limit on the size of quotes is not explicitly defined by law (see the four parameters above), and ultimately is only determined for a specific case when that case is brought before a judge. While that flexibility is necessary to make the law work, that’s not very helpful! Most people will tell you that if your quote is less than 10% of the work, and either less than a full book chapter or less than 30 seconds of audio/video, you’re good. However, note that not everyone recommends the same things, and the won’t-get-you-sued standard and the won’t-get-you-found-liable standard can be very different. In some cases, reproducing the entire work is fair use. It’s best to get an intellectual property (IP) lawyer involved if you’re going to publish something with substantial reproductions. In a university, the library is the best place to start when navigating this issue.

And while there are legal cases in which the distribution of copies of an entire work constitutes fair use, before distributing a copy of an entire length film, musical, or printed work, please consult an IP lawyer or a librarian who specializes in IP issues.

There is one caveat to note. Most DVDs and ebooks today come with digital rights management (DRM), a form of encryption that limits what you can do with the media your purchase. In 2000, a US appeals court ruled that it was illegal to break DRM even if what you intend to do with the data constitutes fair use. In 2010, however, a US appeals court ruled that it was only illegal to break DRM if you then used the newly unencrypted media illegally. It’s hard to know where the case law on DRM will ultimately settle, so proceed with caution (and with advice from someone who knows the law well).

Follow-up resources

This is just the tip of the iceberg, but hopefully it helps you navigate these issues more readily. If you want to dig deeper, here are a few resources that I’ve found helpful (including those already linked above):