Copyright and Fair Use: An Issue of Ethics in a Changing Learning Environment
Fair Use
Fair use is defined as the "privilege in others than the owner of a copyright to use the copyright [protected] material in a reasonable manner without his consent, privilege in others than the owner notwithstanding the monopoly granted to the owner" (Basic Books, Inc. v. Kinko's Graphics, 2001). Fair use has encouraged more creative expression and guaranteed these creators whether they are authors, web developers, trainers or teachers the right to produce and gain from their work.
According to the United States Copyright Act of 1976 (Fair Use in Copyright, 2001), four factors should be considered when determining if a specific action is "fair use." These factors are stated as followed:
- Purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
- Nature of the copyright protected work. For example, copying from works primarily factual in nature is tolerated more than copying from more creative works.
- Amount and substantial use of the portion in relation to the copyright protected work as a whole. For example, a person may use for educational multimedia projects 10% or 3 minutes of motion media, 10% or 1000 words for text, 5 images by an artist or photographer or 10% or 15 images from a collective work.
- Effect of the use upon the potential market for or value of the copyright protected work. (Section 107)
In the 1991 case, Basic Books, Inc. vs. Kinko's Graphics Corporation (2001), publishing houses in New York City declared that Kinko's store was alleged to copy excerpts from books and create course "packets" for college students. The plaintiffs noted their copyrighted materials were used without permission and without payment of required fees and copies sold for profit. Kinko's claimed their use was in "fair use," however the courts determined it was not due to the commercial use of the copyright protected material for profit gain (2001).
BitLaw, a comprehensive Internet resource on technology law (Fair Use in Copyright Law, 2001) recaps four examples of "fair use". These include:
- Small excerpts in a review of criticism for purposes of illustration or comment.
- Parody incorporating some elements (but not all) of the work parodied.
- Quotations from a speech, address, or position paper in a news report.
- Limited copying made by a student for academic work
Every educator, student, and web developer should possess an understanding of the concept of fair use. Without this understanding they are likely not to recognize the contributions of others. This is especially true when the Internet is involved.
The Application of Copyright Law to the Internet
Harper (2000) of the Office of General Counsel, University of Texas System states that Fair Use not only applies to copies but to the:
- Copies of copyright protected works such as electronic photographs.
- Making of derivative works.
- Distributing of works, including electronic distribution.
- Displaying and performing of works publicly such as electronic message boards.
In training, a growing trend to teach a widespread audience is through distributed/distance learning. This type of instruction reaches a broad range of people using the Internet as its method of instruction. Universities and corporations have implemented distance learning or web-based instruction into their departments as an alternative to face-to-face instruction. In 1994 the Conference on Fair Use (CONFU) created a set of fair use guidelines for using distance learning within nonprofit educational institutions. These guidelines summarized in the following:
- Works performed must be integrated into the class, must be part of systematic instruction and must be directly related and of material assistance to the teaching content of the transmission. The performance may not be for entertaining purposes.
- Transmission must be over a secure system.
- Reception must be in a classroom or other similar place normally devoted to instruction or any other site where the reception can be controlled by the eligible institution.
- Performance of an entire copyright protected work or a large portion thereof may be transmitted only once for a distance learning course. This recording or copy may be retained for up to15 consecutive class days for viewing by students enrolled in the course.
A person creating distance learning for a nonprofit institution requires permission for use of copyright protected material in the following situations:
- Utilizing material for commercial use. For example, a nonprofit educational institution conducts courses for a for-profit corporation for a fee.
- An institution wants to disseminate the recordings of the course or portions that contain performance of a copyright protected work.
- An institution wants to offer a course or program containing the performance of copyright protected works to non-employees.
- An institution wants to retain the recorded or copied class session containing the performance of a copyright protected work for longer than 15 days (Harper, 2000).
At many universities across the nation, copyright procedures for distance learning are created for faculty to follow. Using CONFU's guidelines as a foundation, universities such as the University of Texas and Indiana University — Purdue University Indianapolis have created copyright procedures that detail steps and regulations to follow when developing and teaching distance learning courses (e.g., http://www.utsystem.edu/ogc/intellectualproperty/distguide.htm; and http://www.iupui.edu/~copyinfo/distedsum.html).
The Internet has created new situations that have required new copyright questions to be considered. While most copyright laws predate the Internet, copyright and "fair use" issues as they relate to technological advances are still being considered on the basis of these longstanding legal principles (O'Rourke, 1998). Web linking is one of these questions that is creating court activity due to the rapid growth of the browser-based Internet.