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Copyright Material: What constitutes Fair Use?

Over 2500 years ago, Aristotle explained that people create new ideas from old ideas. Since there are no new ideas under the sun, creativity consists of bringing old ideas together in new ways. (P. 8 HOBBS)

The Purpose of Copyright

Encourage the dissemination of information to the masses Designed to encourage the development of new ideas and information

Information that will benefit society as a whole

What is copyright?
Copyright is the owners legal right to reproduce, display, transmit, or modify work they have created. Its a type of authors right; called intellectual property.

Copyright Confusion
Lack of Formal Training Misinformation Biased Educational Guidelines

I heard it from a teacher, who got a memo from another teacher, who read in an email that you could actually get in trouble for using videos in the classroom. (p. 22 HOBBS)

See No Evil
With fair use, the skys the limit. (p. 22 HOBBS)

People can use anything they want if they dont make a profit off it. (p. 22 HOBBS)

Close the Door Policy

Although educators are permitted to Make a photocopy of a printed article Use a school purchased DVD Use a privately purchased copy of a DVD Use an off-air taped movie Use a rental DVD like Netfilx The problem is that the close the door policy limits the distribution of new and innovative instructional to the classroom and prohibits their sharing outside the classroom.

Hyper-comply The educator over regulates the classroom for fear of litigation or negative repercussions. (p. 24 HOBBS)

Educational Use Guidelines

Copyright confusion comes when people confuse the doctrine of fair use with educational-use guidelines. (p. 27 HOBBS)

Consequences of Copyright Confusion

People are afraid and misinformed One teacher was told by her school librarian that she would be personally liable for copyright violations and the school would not protect teachers if there was a lawsuit. (p. 24 HOBBS) The cost of the confusion is that teachers craft assignments that use technology and copyrighted materials explicitly for the classroom.

Fair Use Act

Four factors are considered when determining whether or not a particular use is fair:
The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes The nature of the copyrighted work The amount and substantiality of the portion used in relation to the copyrighted work as a whole The effect of the use upon the potential market for, or value of, the copyrighted work

Fair Use Explained

Context and situation determine how fair use applies. Usually, people do not need to ask permission or pay a license fee in order to use a copyrighted work. People must make a fair use determination by considering the facts of the situation with sound reasoning and judgment.

New Instructional Practices

Transformativeness is the term emerging for the repurposing of copyrighted materials as part of the creative process. (p. 9 HOBBS)

Has the user added value or repurposed the work?

Understanding Transformative Use

The ultimate test of fair use is whether the copyright laws goal of promoting the progress of science and useful arts would be better served by allowing the use than by preventing it. (p. 47 HOBBS) Does the use benefit the social collective group more than it impacts the copyright holder?

Interpreting Transformativeness
There are two questions to consider for fair use: 1. Did the unlicensed use transform the material taken from the copyrighted work by using it for a different purpose than that of the original, or did it just repeat the work for the same intent and value as the original? 2. Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?


The Issue of Market Impact

You should answer two questions: 1. How will my use of the materials affect the copyright owners ability to profit from their work? 2. Will my use of this work cause excessive economic harm to the copyright owner?

First Sale Doctrine:

The Copyright Act of 1976 says that when you buy a legally produced copyrighted work, you can sell or loan that copy to others. (p. 57 HOBBS)

Be Reasonable
Fair use cannot be reduced to a checklist. Fair use requires that people think. (p. 59 HOBBS) It is tough to find a case where an educational employee or student was found guilty of copyright law infringement, because the 1976 Copyright Law broadly enables the use of copyrighted materials for educational purposes.

Make certain you transform the copyrighted material into a new creative entity. Do not purchase copyrighted material and share it so that others can avoid purchasing the material. If so, you have impacted the economic ability of the owner. That is not permitted. Make sure you are acting within the reasonable job requirements of a nonprofit educational entity. Finally and most importantly the specific use of copyrighted works should benefit society more than it hurts the copyright holder.

Code of Best Practices for Educators

Educators Can: Make copies of newspaper articles TV shows, and other copyrighted works and use them and keep them for educational use. Create curriculum materials and scholarship that contain embedded copyrighted materials; Share, sell and distribute curriculum materials that contain embedded copyrighted materials. Learners Can: Use copyrighted works in creating new materials and Distribute their works digitally if they meet the transformativeness standard.

Future of Copyright Three Potential Outcomes

1. 2. 3. Creative Commons Grass Roots Movement to Reclaim Fair Use Abolish Copyright Law

Supreme Court Justice Louis Brandeis. The general rule of law is, that the noblest of human productions-knowledge, truths ascertained, conceptions, and ideas become, after voluntary communication to others, free as the air to common use. (P. 17 HOBBS)