December
2003/January 2004, Journal
of Adventist Education, written by Janine
Lim
Scenario
1: The students at Pleasant View Elementary School
have demonstrated excellent behavior and hard work
during the winter semester, so they are being treated
to a presentation of The Sound of Music
in the school's cafeteria.
Scenario
2: Professor Elaine Mushnik wants to show her online
students video clips from selected movie adaptations
that she occasionally uses in her classroom. In particular,
she wants to show scenes from the 1983 movie version
of King Lear . Dr. Mushnik first asks the
reference librarian, Amy, if there are any digital
versions that can be streamed. Amy checks the Library
of Congress and learns that only the VHS version exists
at this time. Professor Mushnik digitizes and edits
short video clips from King Lear and streams these
to her online students, who are the only ones able
to see the clips. 1
What
do you think of these scenarios? Are they legal? Or
are the participants breaking the law? Do you know what
constitutes “fair use”? Does your school or institution
follow and teach the latest copyright laws? In a moment,
we will examine in closer detail the law and its implications
for educators. 2
But
first, does the Bible have anything to say about this?
We're all aware of the commandment, “Thou shalt not
steal” (Exodus 20:15, KJV). To use copyrighted material
inappropriately would be stealing. Paul offers this
counsel: “Let every soul be subject to the governing
authorities. For there is no authority except from God,
and the authorities that exist are appointed by God.
Therefore whoever resists the authority resists the
ordinance of God, and those who resist will bring judgment
on themselves. For rulers are not a terror to good works,
but to evil. Do you want to be unafraid of the authority?
Do what is good, and you will have praise from the same”
(Romans 13:1-3, NKJV). As Adventist educators, we have
a responsibility to uphold the law (both the law of
the land and the Ten Commandments) and to teach our
students to do likewise. Copyright owners have specific
rights to determine how their materials shall be used.
To usurp an owner's right in any of these areas is stealing
from him or her. When we have a correct understanding
of copyright law, “fair use,” and recent laws on digital
works and distance learning, we can effectively model
appropriate protection and use of copyrighted material
and teach our students to do the same. 3
Copyright
Basics
Webster's
dictionary defines copyright as “the right of an author
or his assignee, under statute, to print and publish
his literary or artistic work, exclusively of all other
persons. This right may be had in maps, charts, engravings,
plays, and musical compositions, as well as in books.”
4 The intention
of copyright law, then, is to protect intellectual property.
Copyright
protects original mediums of expression such as: “poetry;
prose; computer programming; artwork; musical notation;
recorded music and/or song; animations; video footage;
Java applets; a Web page; architectural drawings; photographs.”
5 In addition,
anything published after March 1, 1989, is automatically
copyrighted when it is fixed in a tangible medium. Just
because material does not include a copyright notice,
does not mean it is in the public domain. This is especially
significant with respect to materials on the Internet.
6
Examples
of items not copyrightable include the following: “mere
facts; exact duplications of public domain works; ideas;
systems; works created by employees of the Federal Government;
titles and short phrases; logos and slogans; forms that
only collect information.” 7
Five
rights are granted to an owner of a work: “the right
to reproduce the copyrighted work; the right to prepare
derivative works based upon the work; the right to distribute
copies of the work to the public; the right to perform
the copyrighted work publicly; and the right to display
the copyrighted work publicly.” 8
These rights are reserved to the owner except under
certain conditions of fair use.
Fair
Use
The
principle of “fair use” has developed over the years
as courts have tried to balance the needs of society
to use copyrighted material for education and journalism
with the rights of the copyright owners. Fair use does
not give anyone blanket permission to use material in
any manner. Fair use is applicable only at non-profit
educational institutions. In addition, there are four
factors for determining fair use:
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.” 9
In
summary, educators should use as little as possible
of the work and consider each factor carefully when
using the material. The copyrighted material can be
used in the classroom for one semester or course, but
any additional use requires permission from the author.
What does this mean specifically for various mediums?
Print
Materials
Teachers
may make one copy of the following
materials (from legally acquired originals):
•
“A chapter from a book.
•
“An article from a periodical or newspaper.
•
“A short story, short essay, or short poem, whether
or not from a collective work.
•
“A chart, graph, diagram, drawing cartoon or picture
from a book, periodical, or newspaper.” 1 0
Single
copies of these materials may be made available in the
library reserve for a class of students. These students
may borrow the materials and make a single copy (however,
the library should clearly post copyright notices).
In this case, each student is responsible for following
copyright law. 0
When
creating multiple copies of print materials to distribute
to students, the material must be necessary to meet
the teacher's instructional objectives (i.e., not for
entertainment or as a diversion from study). In addition,
for multiple copies, the following length guidelines
apply:
•
“For an article, the limit is 2,500 words.
•
“For a longer work of prose, the limit is 1,000 words,
or 10% of the work, whichever is less.
•
“For a poem, the limit is 250 words.
•
“For a longer poem, an excerpt of no more than 250 words
may be used.
•
“No more than one chart, diagram, cartoon or picture
from a book, periodical, or newspaper.
•
“No more than one work is copied from a single author.
•
“No more than three authors are copied from a single
collective work (such as an anthology).” 1 2
In
addition, for multiple copies:
•
“The copying must be done at the initiative of the teacher
(at the moment of inspiration).
•
“The copying must be done at a time when it is unreasonable
to get permission from the copyright owner. (If there
is time, you must get permission.)
•
“Only one copy is made for each student.
•
“No charge is made to the student except to recover
only the cost of copying.
•
“The copying is done for only one course. i.e. The same
item cannot be reproduced for more than one course.
(Permission must be acquired to use the item for more
than one semester or term.)
•
“Nine instances of multiple copying occur during a single
term or semester (with the exception of newspapers and
periodicals. You may copy as many times as you like;
however, you must still remain within the length guidelines
listed above).
•
“‘Consumable works'” shall not be copied, such as workbooks
and standardized tests.” 1 3
Illustrations
and Photographs
“Single
works may be used in their entirety, but no more than
five images by a single artist or photographer may be
used. From a collection, not more than 15 images or
10 percent (whichever is less) may be used.” 1 4
TV
and Cable
“Broadcasts
(i.e., ABC, NBC, PBS, etc.) or tapes made from broadcast
may be used for instruction. Schools are allowed to
retain broadcast tapes for 10 school days (some rights
holders, such as PBS's Reading Rainbow , allow
for a longer period).
“Cable
channel programs may be used with permission. Many programs
may be retained by teachers for years. Visit Cable in
the Classroom at http://www.ciconline.org
for more details.” 1 5
Performance
and Display of Audio-Visual Material
The
following guidelines apply to “performance and display”
of an audio-visual work in the classroom. This includes
videos, DVDs, 35 mm slides, filmstrips, etc. To show
or play audio-visual material for students constitutes
performance and display—which comes under a different
area of copyright law than “fair use.”
•
“The performance of the AV work must meet the instructional
objective.” 1 6
(i.e., you may not show a movie rented
from your local video store at school as described in
the scenario at the beginning of this article).
•
“The AV work must be acquired legitimately.
•
“It is illegal to copy an entire AV work or convert
it to another format.” 1 7
•
You may copy brief portions of videos, as long as the
copy does not include the creative essence of the work.
1 8
If
you would like to show movies for non-instructional
use at school, a motion picture license can be purchased.
1 9
1996
Fair Use Guidelines for Educational Multimedia 2
0
In
1996, the U.S. Congress established the Fair Use Guidelines
for Educational Multimedia. These guidelines were created
by representatives from a broad cross-section of education,
software, and publishing associations. Following these
guidelines will ensure that you stay within a safe interpretation
of the law when using various materials in multimedia
presentations in the classroom:
The
work from which portions are used in the multimedia
presentation should be lawfully acquired (i.e., you
cannot use portions of music downloaded from a peer-to-peer
file-sharing service, since you don't know how the music
was acquired).
The
following portion limitations apply for using multimedia
in projects. The portion limitations apply as a cumulative
limit for the academic term or semester.
•
Motion media of “up to 10% or 3 minutes, whichever is
less.”
•
Text of “up to 10% or 1000 words, whichever is less.”
•
“An entire poem of less than 250 words may be used,
but no more than three poems by one poet, or five poems
by different poets from any anthology may be used.”
•
For long poems, “250 words may be used but no more than
three excerpts by a poet or five excerpts by different
poets from a single anthology may be used.”
•
Music, lyrics, and music video of “up to 10%, but in
no event more than 30 seconds.”
•
Illustrations and photographs: “no more than 5 images
by an artist or photographer. . . . Not more than 10%
or 15 images from a published or collective work.”
•
“Up to 10% or 2500 fields or cell entries, whichever
is less, from a copyrighted database.”
Students
may perform and display their projects, and keep a copy
in their portfolio.
Educators
may perform and display their presentations in face-to-face
instruction, for student self-study, and for remote
instruction, provided that access is limited to the
students only. If the network over which it is shared
cannot prevent duplication, the work may be made available
for 15 days only. Students should be advised that they
may not make copies of the multimedia presentation.
Educators
may perform and display the presentation at conferences
and in their portfolios.
Educators
may use the project for up to two years after the initial
display of the project; any use thereafter requires
permission from each copyrighted portion of the production.
No
more than two copies may be made of the project.
Any
other use or distribution requires permission from each
copyrighted work used in the project.
The
opening screen of the multimedia presentation should
include a notice that copyrighted works have been used
and that further use is restricted.
Credit
should be given to each work used in the project. It
may be separate from the actual piece, except for images.
The copyright notice and the name of the creator of
the image must be incorporated into the image in the
presentation.
Internet
In
addition, the Fair Use Guidelines for Educational Multimedia
provide instruction on use of materials from the Internet.
2 1
“Access
to works on the Internet does not automatically mean
that these can be reproduced and reused without permission
or royalty payment and, furthermore, some copyrighted
works may have been posted to the Internet without authorization
of the copyright holder.”
Use
of multimedia works on the Internet should follow the
same guidelines as listed above (i.e., for images, etc.).
Although
it is very easy for students to use the Google Image
Search to find pictures for projects, pupils in grades
6 and above 2 2
should be taught to check for copyright and permission.
For example, a Google search for “trees” found a very
beautiful photo taken by Philip Greenspun. The image
graphic itself has a copyright notice on it. This notice
might make a student think he or she cannot use the
photograph. However, the page where the photo is displayed
includes a copyright link to http://philip.greenspun.com/copyright/
. On this page, Greenspun gives explicit permission
for use of his pictures in school projects. In fact,
he says, regarding school projects, “feel free to print
anything from my site.” In this case, the owner allows
use of more than five images in one collection in a
school project.
In
contrast, the Internet site http://www.webshots.com
includes, among other things, beautiful nature
pictures. A link appears just below with a copyright
notice. It says, “Webshots images are specially encoded
to protect the copyright privileges of our professional
photographers. We are unable to license Webshots images
to third parties; you may not print them, use them in
presentations, or use them on your Website. We have
purchased the rights to use these images only within
the Webshots Desktop software and on our Website. If
you would like to use any of the images, you will need
to contact the photographer or company listed under
the image.” 2 3
It
is important to investigate the copyright notices like
these on the Internet before using materials in assignments
and projects. If a site does not have a copyright notice,
then you should follow the guidelines listed above.
2 4 To be safe,
use sites such as http://pics4learning.com
, which allow use in projects, and provide bibliographic
information for students to include in their projects.
Software
Many
erroneously believe that the fair use guidelines apply
to software as well. The Software and Information Industry
Association provides the following guidelines for software
use.
•
“Software is automatically protected by federal copyright
law from the moment of its creation. . . .
•
“Those who purchase a license for a copy of software
do not have the right to make additional copies without
the permission of the copyright owner, except when it
is necessary to: (i) copy the software onto a single
computer in order to use the software, and (ii) make
a backup copy “for archival purposes only”, which are
specifically provided in the Copyright Act (Section
117). . . .
•
“Some licenses allow for software to be installed at
home and at school; however one should read the license
agreement carefully to see if it is allowed for that
particular software package. . . .
•
“Public or private schools and universities are not
exempt from copyright laws. On the contrary, because
of their unique position of influence, schools must
be committed to upholding copyright laws. Schools should
make every effort to uphold the law, because it is by
their example that students will learn to have respect
for intellectual property.” 2 5
Distance
Education: 2002 TEACH Act
In
November 2002, the “Technology, Education and Copyright
Harmonization Act” (known as the TEACH Act) was signed
into law by President George W. Bush. This law greatly
expanded the ways that educators can legally use copyrighted
materials in distance education. 2 6
Before the TEACH Act, educators were restricted
from presenting audio-visual material over the World
Wide Web or other digital networks. The law clarifies
the responsibilities of the institution, the technology
support staff, and the instructor.
Responsibilities
of the Institution
Only
a nonprofit organization may perform copyrighted works.
The
institution must “institute policies regarding copyright.”
The
institution must provide copyright information to faculty,
students, and staff members.
Notice
must be given to students that the materials used are
copyrighted. (This could be included in the syllabus.)
The
access must be restricted to the students in the course.
2 7
Responsibilities
of the Information Technology Staff
Access
must be restricted to the students in the course.
Storage
and dissemination must be controlled, to prevent “retention
of the work in accessible form by recipients of the
transmission . . . for longer than the class session.”
The
institution should not interfere with technological
measures embedded in the content.
The
temporary retention of copies is limited. 2 8
The
long-term retention of copies is limited.
Responsibilities
of the Instructor
Only
“reasonable and limited” portions of the works may be
used.
The
work should be available to the students only during
a brief period of the class when it meets the specific
instructional objective, not during the entire duration
of the class.
A
digital version of the work must be used if one is available.
Remember scenario 2 at the beginning of this article?
Note how the librarian checked to see if a digital version
was available. The use described in scenario two is
acceptable if the institution has followed the guidelines
listed above. If no digital version is available,
•
An analog version may be digitized (following the portion
limitations listed previously) for streaming purposes.
•
The digital copy may be stored on the network as long
as others don't have access to it.
•
The portion of the work should be small and limited
(as listed above).
•
It should apply directly to the instructional purposes
of the class.
•
Only the copy used for digital transmission is allowed.
The
instructor must oversee the planning of the educational
experience. 2 9
Clearly,
the TEACH Act makes distance education much easier.
However, the instructor should still be aware of and
follow the guidelines of fair use and be sure that any
copyrighted materials used are directly related to the
instructional activity and objectives.
International
Law
The
U.S. laws described in this article were created in
compliance with the Berne Convention, which protects
intellectual property worldwide. To learn more about
specific laws in your country, visit http://www.law.cornell.edu/treaties/berne/overview.html
or do a search on copyright law in your country.
Scenarios
Reading
about various scenarios helps make the copyright laws
easier to understand. Two Web sites in the footnotes
provide quizzes and scenarios to increase your understanding.
3 0 It is recommend
that you review these laws and scenarios regularly with
fellow colleagues to ensure that everyone understands,
follows, and teaches proper use of copyrighted materials
in the school setting. In this way, we can model for
and teach our students to be Christian witnesses and
responsible citizens. When teachers and students alike
understand and follow the laws of the governing authorities
in our lands, this will be an effective witness to the
world around.
Janine
Lim
is an Instructional Technology Consultant at the Berrien
County Intermediate School District in Berrien Springs,
Michigan. She is an active Adventist Virtual Learning
Network (AVLN) board member and chair of the AVLN Course
Committee. She also teaches online regularly for AVLN,
the Berrien County ISD, and the ATA Technology Academy,
a Michigan grant project.
NOTES
AND REFERENCES
1.
Glen Gummess, A Visit to Copyright Bay: (June
17, 2003): http://www.stfrancis.edu/cid/copyrightbay/
.
2.
Please note that the discussion of copyright law in
this article is for the purpose of assisting Adventist
educators in a non-profit setting and should not be
considered legal advice.
3.
See Doug Johnson's Resources for Teaching Information
Technology Ethics to Children and Young Adults at http://www.doug-johnson.com/ethics/index.html
.
4.
See. http://dictionary.reference.com/search?q=copyright
: Merriam-Webster Dictionary of Law, © 1996
Merriam-Webster, Inc.
5
. Georgia Harper, “Who Owns What?” (August 27, 2000):
http://www.utsystem.edu/OGC/IntellectualProperty/whowns.htm
.
6
. Janis H. Bruwelheide, “Copyright Issues for the
Electronic Age” (April 1995) EDO-IR-95-3: http://ericit.org/digests/EDO-IR-1995-03.shtml
.
7
. Harper.
8
. Daniel A. Tysver, “Rights Granted Under Copyright
Law” (2000): http://www.bitlaw.com/copyright/scope.html.
9
. U.S. Copyright Statute (found in Title 17 of the
United States Code); 17 USC 107, Limitations on Exclusive
Rights: Fair Use; http://www.bitlaw.com/source/17usc/107.html
. To read more about the fair use factors, see Gummess.
10
. Gummess.
0
11. Compiled from ibid. and Hall Davidson, Technology
& Learning Copyright and Fair Use Guidelines for
Teachers (2002): http://i.cmpnet.com/techlearning/pdf/db_area/archives/TL/10/copyright_chart.pdf.
12
. Gummess.
13
. Ibid.
14
. Davidson.
15
. Ibid.
16.
Gummess.
17.
Ibid.
18
. Ibid.
19
. See http://www.ala.org/Template.cfm?Section=Library_Fact_Sheets&Template=/ContentManagement/ContentDisplay.cfm&ContentID=24635
for more details.
20
. The quotations and information in this section
are all taken from Fair Use Guidelines for Educational
Multimedia established by Congress of the United States
(1996): http://www.libraries.psu.edu/mtss/fairuse/guidelines.html
.
21.
Ibid .
22.
Ibid.
23.
See http://daily.webshots.com/html/terms.html
for more information.
24.
However, graphics may be covered by other laws, such
as trademarks. These graphics should be avoided in projects
as well (i.e., Disney graphics!).
25.
SIIA, Copyright Law & Related Issues: Software
Use and the Law (2003): http://www.spa.org/piracy/copyright/law.
asp .
26.
For more information, see http://www.ala.org/washoff/teach.h
tml .
27.
These lists are from http://www.ala.org/washoff/teach.html
and Glen Gummess, .A Visit to Copyright Bay
(2003): http://www.stfrancis.edu/cid/copyrightbay/
.
28
. For more information, see http://www.ala.org/washoff/teach.html
29.
These lists are adapted from http://www.ala.org/washoff/teach.html
and Gummess.
30.
See http://www.stfrancis.edu/cid/copyrightbay/cruises.htm
and http://www.techlearning.com/db_area/archives/TL/2002/10/copyright_quiz.html
for the two quizzes.
