Copyright and the Online Classroom
by Kim Weber – February 6, 2011
for ILS 570-S70 /Stanley Walonoski
Using copyrighted materials in the classroom is a great way for teachers to enhance the educational environment. Videos, paintings, poems, sheet music, television programs, website graphics, music cds and excerpts from literary works are all effective tools in exposing learners to new ideas that can greatly expand their learning experience. However, before introducing these materials in a learning environment it’s important to have a good understanding of copyright law, fair use, and how to use original works legally. A simple crediting of a source is often not enough and should never be considered a substitution for obtaining written permission. In this paper I will explore copyright issues as they pertain to online classroom use.
To reach a good understanding of copyright law and how it works in the real world let’s apply it to a hypothetical but very believable scenario proposed for the assignment of this paper. An instructional technology teacher wants to show his students how old film footage can provide useful information for computer simulations. The instructor has recorded a program produced by ABC News which aired on The History Channel in 2007. First the instructor recorded the two hour program including commercials on his home digital video recorder. Later he transferred two clips, totaling seven minutes to share with his online class. Now he is wondering if he can show the two clips to his class. What exactly are the copyright issues to be considered? Can he legally show these clips?
Copyright law has been implemented by the United States along with a lot of other countries to protect intellectual property or original works. The roots of the law can be traced back to the United States Constitution, Article 1, Section 8 which states “The Congress shall have power… to promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive right to their respective Writings and Discoveries." . This right of protection includes everything from comic books to ballet performances, rap songs to classical violin concertos, BBC productions to MTV videos. Literary works, music, film, paintings, photographs, live performances, television and computer software, whether published or unpublished, are all protected (CONFU, 1998). The law has been designed to protect the vehicle by which an idea is shared or expressed, but not the actual idea. Systems and factual information are also exempt from copyright protection as are works considered to be in the public domain. Copyright expires after a number of years following the death of the author and this is why Google and Amazon have access to content for some current projects. Still the law has the potential to be very restrictive. Anyone wanting to perform, copy, share, or use someone else’s copyrighted work must ask permission and oftentimes must pay a user’s fee to the owner of the copyright.
Educators and libraries, both in the business of sharing original works for free are out of a job if copyright law is followed this narrowly. Fortunately, there is a loophole of sorts called fair use which allows them to share, copy, and lend copyrighted material without always seeking written permission and/or paying a usage fee.
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. (CONFU,1998.)
While fair use allows educators to use copyrighted materials for instructional purposes it insists that the work under consideration satisfy four key requirements.
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include — (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. (CONFU,1998.)
Therefore, the purpose of the use, the nature of the copyrighted material, the percentage amount of the work as related to the whole, and the effect of the use on the original work’s value all must be considered before a teacher can legally share the material with his class. If these four factors fall on the side of fair use then the instructor can use the material without requesting written permission.
First to be considered is the purpose of the use. Why does the instructor need to use these clips? According to the description in our assignment the teacher would like to expose his students to “an example of how modern computer simulations can be used to extract useful information from historic records made years earlier on an antique photographic medium”. This use is educational and noncommercial, the point being to educate and enlighten the learners. The teacher is trying to share a very specific and very visual example of media. Verbally describing what is on the clips would be a much less effective way to expose the students to the concept being taught. To abide by fair use regulations the teacher will need to make sure the clips are uploaded to a secure and password protected site for his students to view and can only be left up for a period of 15 days starting after real-time remote use. Face to face, directed self study and remote instruction are all covered under fair use (University of Washington, 2003). He will also need to protect the clips from any illegal copying and students should also be specifically told not to make copies. Still, the purpose of this use can definitely be described as fair use.
Next we must consider the nature of the original work. The video clips are definitely educational in nature, and yet they’re also part of a commercial product with advertisers involved. As the clips come from a fact based program, the ABC News, which was aired by the History Channel, it can be assumed that the nature of the work is one of ideas and factual information. The clips to be used are film footage or simulations of historical events from the early 1960s, which on closer examination may be considered part of the public domain.
The third factor to be considered under fair use is the running time of the portion used. For motion media you are allowed to “use up to 10%, or three minutes, whichever is less in the aggregate of a copyrighted motion media work may be reproduced or otherwise incorporated as part of an educational multimedia project…” (CONFU, 1998). Unfortunately, in order to conform to this factor, the clips will have to be edited down to three minutes total. Using more than 3 minutes would be an infringement on copyright and no matter how worthy the purpose would still be illegal.
The effect upon the potential market value of the copyrighted work is the final factor to consider in employing fair use. Showing a clip from a program that aired in 2007 on The History Channel will have little adverse effect on the value of the copyrighted work. The History Channel sells many of their programs to schools and libraries as boxed sets, and recording a portion of one for free, and minus the ads is not going to make the executives happy. Still, it’s unlikely that watching a 3 minute clip would discourage someone from making the purchase. It’s more likely that viewing the clip(s) might impress a student unfamiliar with The History Channel and encourage them to seek out other program offerings.
The advent of online classrooms has made many of the requirements under fair use too restrictive so in 2008 the TEACH Act was enacted allowing for an expanded range of original works as well as expansion of receiving locations. This means that face to face as well as distance learning is now covered under the act. The teacher in our hypothetical case can use original works on-line as long as he provides adequate security for the ‘borrowed material’, a password protected website with instructions to his students about not copying the video clips. After 15 days the clip(s) should be removed from the site. He also should not make any more copies for himself or for others.
The TEAC H Act also allows the digitization of analog works as well as the storage of transmitted works. This makes it easier to use original works in a classroom setting. Under copyright law a limited number of copies can be made as long as they are not distributed, and are used for instructional purposes only. There are also time limitations which must be followed. The ABC program on The History Channel ran in 2007. The teacher may use the clips for a period of up to two years from the first instructional use. So if he’s shown the clips in 2007, then he can no longer legally share the clips with his class. However, if he is showing the footage for the first time in 2011, he’ll be able to use it in his course for two more years.
In conclusion, I think a 3 minute clip(s) of the ABC News program which aired on The History Channel can be viewed online by the Instructional Technology class. The purpose is clearly educational. The nature of the program would greatly enhance the classes’ understanding of an important technology concept which could not be easily demonstrated without the use of the clips. The portion of seven minutes originally considered needs to be edited down to 3 minutes to comply with the 10% or no more than 3 minutes rule for motion media. The effect of showing the clip would not negatively impact ABC News or The History Channel, but in fact could provide some valuable exposure to a group of television viewers that might not find The History Channel on their own.
Balancing the needs of users while also protecting the rights of the creators is a tricky business. As educators and librarians we must do our utmost to set a good example in how we access other people’s work. The safest course is always to obtain written permission from the owner of the copyrighted material or to purchase a copy of the material with a licensing agreement for instructional use.
Sources Used
Aufderheide, Patricia. American University Center for Social Media “Code of best practices for Fair usein media literacy education.” Director Patricia Aufderheide. American University. 2011. Accessed 02/04/2011. http://www.centerforsocialmedia.org/tags/copyright-and-fair-use-0
Becker, Gary. Becker copyright.com 11/02009. Accessed 02/02/2011. http://www.beckercopyright.com
Classroom Support Services. University of Washington. “Fair use guidelines for educational multimedia”. 03/12/2003. Accessed 01/31/2011. http://www.washington.edu/classroom/emc/fairuse.html
Crews, Kenneth D. American Library Association. “Distance education and the TEACH act.” 2011. Accessed 02/06/2011. http://www.ala.org/Template.cfm?Section=Distance_Education_and_the_TEACH_Act&Template=/ContentManagement/ContentDisplay.cfm&ContentID=25939
Cybertelecom federal internet law and policy: an educational project. “IP: Copyright: TEACH” ed. Genny Pershing. 01/21/2011. Retrieved 02/02/2011. http://cybertelecom.org.
Hannon, Michael. “The TEACH Act”. 04/2008. Washington Affairs and Copyright Committee. Accessed 02/02/2011. http://www.aallnet.org/aallwash/ib042008b.pdf
Lehman, Bruce. Final report to the commissioner on the conclusion of the conference on fair use. Nov. 1998. Accessed 01/30/2011. http://www.uspoto.gov/web/offices/dcom/olia/confu/indexx.html.
United States. Constitution of the United States. http://www.archives.gov/exhibits/charters/constitution/transcripts.html.
United States. Copyright Office. “ Copyright Law of the United States .“ Accessed 01/31/2011. http://www.copyright.gov/
United States. Copyright Office. “Reproduction of copyrighted works by educators and librarians- circular 21 – U.S. Copyright Office Washington D.C. Nov. 2009. Accessed 01/30/2011. http://www.copyright.gov./circs/circ.21/pdf
by Kim Weber – February 6, 2011
for ILS 570-S70 /Stanley Walonoski
Using copyrighted materials in the classroom is a great way for teachers to enhance the educational environment. Videos, paintings, poems, sheet music, television programs, website graphics, music cds and excerpts from literary works are all effective tools in exposing learners to new ideas that can greatly expand their learning experience. However, before introducing these materials in a learning environment it’s important to have a good understanding of copyright law, fair use, and how to use original works legally. A simple crediting of a source is often not enough and should never be considered a substitution for obtaining written permission. In this paper I will explore copyright issues as they pertain to online classroom use.
To reach a good understanding of copyright law and how it works in the real world let’s apply it to a hypothetical but very believable scenario proposed for the assignment of this paper. An instructional technology teacher wants to show his students how old film footage can provide useful information for computer simulations. The instructor has recorded a program produced by ABC News which aired on The History Channel in 2007. First the instructor recorded the two hour program including commercials on his home digital video recorder. Later he transferred two clips, totaling seven minutes to share with his online class. Now he is wondering if he can show the two clips to his class. What exactly are the copyright issues to be considered? Can he legally show these clips?
Copyright law has been implemented by the United States along with a lot of other countries to protect intellectual property or original works. The roots of the law can be traced back to the United States Constitution, Article 1, Section 8 which states “The Congress shall have power… to promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive right to their respective Writings and Discoveries." . This right of protection includes everything from comic books to ballet performances, rap songs to classical violin concertos, BBC productions to MTV videos. Literary works, music, film, paintings, photographs, live performances, television and computer software, whether published or unpublished, are all protected (CONFU, 1998). The law has been designed to protect the vehicle by which an idea is shared or expressed, but not the actual idea. Systems and factual information are also exempt from copyright protection as are works considered to be in the public domain. Copyright expires after a number of years following the death of the author and this is why Google and Amazon have access to content for some current projects. Still the law has the potential to be very restrictive. Anyone wanting to perform, copy, share, or use someone else’s copyrighted work must ask permission and oftentimes must pay a user’s fee to the owner of the copyright.
Educators and libraries, both in the business of sharing original works for free are out of a job if copyright law is followed this narrowly. Fortunately, there is a loophole of sorts called fair use which allows them to share, copy, and lend copyrighted material without always seeking written permission and/or paying a usage fee.
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. (CONFU,1998.)
While fair use allows educators to use copyrighted materials for instructional purposes it insists that the work under consideration satisfy four key requirements.
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include — (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. (CONFU,1998.)
Therefore, the purpose of the use, the nature of the copyrighted material, the percentage amount of the work as related to the whole, and the effect of the use on the original work’s value all must be considered before a teacher can legally share the material with his class. If these four factors fall on the side of fair use then the instructor can use the material without requesting written permission.
First to be considered is the purpose of the use. Why does the instructor need to use these clips? According to the description in our assignment the teacher would like to expose his students to “an example of how modern computer simulations can be used to extract useful information from historic records made years earlier on an antique photographic medium”. This use is educational and noncommercial, the point being to educate and enlighten the learners. The teacher is trying to share a very specific and very visual example of media. Verbally describing what is on the clips would be a much less effective way to expose the students to the concept being taught. To abide by fair use regulations the teacher will need to make sure the clips are uploaded to a secure and password protected site for his students to view and can only be left up for a period of 15 days starting after real-time remote use. Face to face, directed self study and remote instruction are all covered under fair use (University of Washington, 2003). He will also need to protect the clips from any illegal copying and students should also be specifically told not to make copies. Still, the purpose of this use can definitely be described as fair use.
Next we must consider the nature of the original work. The video clips are definitely educational in nature, and yet they’re also part of a commercial product with advertisers involved. As the clips come from a fact based program, the ABC News, which was aired by the History Channel, it can be assumed that the nature of the work is one of ideas and factual information. The clips to be used are film footage or simulations of historical events from the early 1960s, which on closer examination may be considered part of the public domain.
The third factor to be considered under fair use is the running time of the portion used. For motion media you are allowed to “use up to 10%, or three minutes, whichever is less in the aggregate of a copyrighted motion media work may be reproduced or otherwise incorporated as part of an educational multimedia project…” (CONFU, 1998). Unfortunately, in order to conform to this factor, the clips will have to be edited down to three minutes total. Using more than 3 minutes would be an infringement on copyright and no matter how worthy the purpose would still be illegal.
The effect upon the potential market value of the copyrighted work is the final factor to consider in employing fair use. Showing a clip from a program that aired in 2007 on The History Channel will have little adverse effect on the value of the copyrighted work. The History Channel sells many of their programs to schools and libraries as boxed sets, and recording a portion of one for free, and minus the ads is not going to make the executives happy. Still, it’s unlikely that watching a 3 minute clip would discourage someone from making the purchase. It’s more likely that viewing the clip(s) might impress a student unfamiliar with The History Channel and encourage them to seek out other program offerings.
The advent of online classrooms has made many of the requirements under fair use too restrictive so in 2008 the TEACH Act was enacted allowing for an expanded range of original works as well as expansion of receiving locations. This means that face to face as well as distance learning is now covered under the act. The teacher in our hypothetical case can use original works on-line as long as he provides adequate security for the ‘borrowed material’, a password protected website with instructions to his students about not copying the video clips. After 15 days the clip(s) should be removed from the site. He also should not make any more copies for himself or for others.
The TEAC H Act also allows the digitization of analog works as well as the storage of transmitted works. This makes it easier to use original works in a classroom setting. Under copyright law a limited number of copies can be made as long as they are not distributed, and are used for instructional purposes only. There are also time limitations which must be followed. The ABC program on The History Channel ran in 2007. The teacher may use the clips for a period of up to two years from the first instructional use. So if he’s shown the clips in 2007, then he can no longer legally share the clips with his class. However, if he is showing the footage for the first time in 2011, he’ll be able to use it in his course for two more years.
In conclusion, I think a 3 minute clip(s) of the ABC News program which aired on The History Channel can be viewed online by the Instructional Technology class. The purpose is clearly educational. The nature of the program would greatly enhance the classes’ understanding of an important technology concept which could not be easily demonstrated without the use of the clips. The portion of seven minutes originally considered needs to be edited down to 3 minutes to comply with the 10% or no more than 3 minutes rule for motion media. The effect of showing the clip would not negatively impact ABC News or The History Channel, but in fact could provide some valuable exposure to a group of television viewers that might not find The History Channel on their own.
Balancing the needs of users while also protecting the rights of the creators is a tricky business. As educators and librarians we must do our utmost to set a good example in how we access other people’s work. The safest course is always to obtain written permission from the owner of the copyrighted material or to purchase a copy of the material with a licensing agreement for instructional use.
Sources Used
Aufderheide, Patricia. American University Center for Social Media “Code of best practices for Fair usein media literacy education.” Director Patricia Aufderheide. American University. 2011. Accessed 02/04/2011. http://www.centerforsocialmedia.org/tags/copyright-and-fair-use-0
Becker, Gary. Becker copyright.com 11/02009. Accessed 02/02/2011. http://www.beckercopyright.com
Classroom Support Services. University of Washington. “Fair use guidelines for educational multimedia”. 03/12/2003. Accessed 01/31/2011. http://www.washington.edu/classroom/emc/fairuse.html
Crews, Kenneth D. American Library Association. “Distance education and the TEACH act.” 2011. Accessed 02/06/2011. http://www.ala.org/Template.cfm?Section=Distance_Education_and_the_TEACH_Act&Template=/ContentManagement/ContentDisplay.cfm&ContentID=25939
Cybertelecom federal internet law and policy: an educational project. “IP: Copyright: TEACH” ed. Genny Pershing. 01/21/2011. Retrieved 02/02/2011. http://cybertelecom.org.
Hannon, Michael. “The TEACH Act”. 04/2008. Washington Affairs and Copyright Committee. Accessed 02/02/2011. http://www.aallnet.org/aallwash/ib042008b.pdf
Lehman, Bruce. Final report to the commissioner on the conclusion of the conference on fair use. Nov. 1998. Accessed 01/30/2011. http://www.uspoto.gov/web/offices/dcom/olia/confu/indexx.html.
United States. Constitution of the United States. http://www.archives.gov/exhibits/charters/constitution/transcripts.html.
United States. Copyright Office. “ Copyright Law of the United States .“ Accessed 01/31/2011. http://www.copyright.gov/
United States. Copyright Office. “Reproduction of copyrighted works by educators and librarians- circular 21 – U.S. Copyright Office Washington D.C. Nov. 2009. Accessed 01/30/2011. http://www.copyright.gov./circs/circ.21/pdf