July 11th, 2011
I started out this year with a New Year's Resolution to try to be fully compliant with copyright law in my professional and personal life. Little did I know what a wild, crazy (and expensive!) undertaking this would be.
Since it's been such a long, bumpy road to become copyright compliant, I've decided I wanted to do a three-part blog series about my adventures in copyright compliance. In Part One, I will explain aspects of copyright law in laymen's terms. In Part Two, I will share the many trials and tribulations that I have endured this year in my quest to become copyright compliant. And in Part Three, I will philosophize about how I feel copyright law should be revised and updated in the age of the Internet. So come join me in exploring this wild, unpredictable territory that is created by copyright law.
The following blog entry is an updated version of a blog entry I wrote for the First Year Writing blog at UVU near the beginning of the year. (P.S. The image above comes from Gideon Burton's Flickr photostream. I'm pretty sure that since we're friends and he's an advocate for open sourcing, he won't sue me for it. I should probably ask him for permission.)
My New Year's resolution for 2011 was to be in full compliance with copyright law. And frankly, I've found that it is much more difficult to comply with this law than I ever imagined. I used to believe that it was okay to copy just about anything as long as I was using it in a classroom and for educational purposes. Unfortunately, that's not true. Like me, I think that a lot of us may potentially be ignorant of how copyright law applies to us as educators, so I thought I'd write a blog entry about this topic in the hopes that we all can be more compliant.
According to my research, use of copyrighted material without explicit permission from the copyright holder is only legal when it is considered "fair use" under the copyright law (such as for educational purposes). There are four criteria that must be met in order for something to be considered fair use:
1. Purpose of Use
In order for something to qualify as "fair use," it must stimulate the creativity of the general public as opposed to just superseding the rights of the original copyright holder to make an unfair profit. Using something for educational purposes of course qualifies under this category. But so do things like parodies of songs by Weird Al (who only asks for permission from the original song authors out of professional courtesy). Showing audio-visual clips from a movie on a podcast or TV show is also allowable if the podcast/TV show is using it to comment on the work in question.
One thing that I have found under this criteria of fair use is that, although it is okay to copy something for educational use, it is only appropriate if the copies are used spontaneously. For example, let's say I decide to make copies of a copyrighted article to share with my students in the classroom the day before one of my lectures. That is clearly spontaneous. However, if the next semester comes along and I say "Hey, that lesson plan worked great and that article was perfect!", I no longer have the same rights. If I copy that article for my students the next semester, it is no longer spontaneous and I am guilty of copyright infringement. It is okay to use an article temporarily and spontaneously. But an article should not be put into an anthology of any kind or distributed to students for more than one semester until you receive explicit permission from the copyright holder.
2. Nature of the Work
I'm not entirely sure I know all the ins and outs of this particular criteria for fair use, but my understanding is that it has to do with whether the work being copied is fiction vs. non-fiction. Since fiction is highly creative, it can be said to be the property of the individual who created it. However, non-fiction is a little bit different. No one has the right to copyright facts or ideas (of course), but you can copyright the expression of those facts and ideas. Judges who make determinations in matters of copyright law must consider the social usefulness of allowing non-fiction ideas to be freely accessible to the public.
3. Proportion/Extent of Materials Used
This criteria refers to how much of the work you are using (e.g. what percentage of the work you are using). For example, there was a case where a teacher in Seattle was found guilty of copyright infringement for copying 11 out of 24 pages from an instructional book. If you copy a paragraph from an article or a book, you're probably okay since it's just a very small portion of the overall work. However, copying a chapter or more from a book becomes questionable and can get you into trouble.
4. The Effect on Marketability
This is by far the most important of the four tests for fair use. If copying and distributing the materials will result in a reduction of sales for the copyright holder, it's illegal.
For example, my department advocates that I use the Allyn and Bacon Guide to Writing in my classes. Although it is currently listed for $81.74 on Amazon at the time of this writing, our university bookstore sells it for $147 new and $110.25 used because they bundle it with another textbook. For me, I think that's too expensive for my students---especially since I only use a very small portion of the textbook in my classes. I have created my own textbook that I distribute to my students instead. But let's say I include a few graphs or pages from Allyn and Bacon and give that to my students. In that case, I've directly reduced the sales for the Allyn and Bacon textbook. And that could get me into hot water.
One other thing that is important to be aware of is that even when you are using something under the qualifications for fair use, you must still include the copyright notice in order to comply with copyright law. That means you need to indicate that the material is copyrighted and who the copyright holder is. It is not enough to merely give attribution.
How is Copyright Law Enforced?
Unlike some laws which are enforced by government regulators (such as OSHA or the Department of Health) or by the police, copyright law is largely enforced through civil lawsuits brought to court by the original copyright holder against the alleged copyright infringer (infringee?). A copyright holder can ask a court to issue an injunction warning the accused infringer to cease and desist even before the case goes to trial. Additionally, infringing copies may be seized and destroyed. Sometimes a copyright court may require the defendant to pay compensatory damages if they can prove that their gross income was affected by the infringement. There is also the option in some cases to pay fines ranging from $750 to $30,000. Court costs may also be awarded to the copyright holder in some cases. I'd say that's pretty serious stuff.
Well, join me next time for Part Two in which I discuss my tortuous (and expensive) journey on the way to copyright compliance. It's definitely been an adventure!