Copyright is an important topic for any instructional situation, especially when teaching in distance education settings. The use of copyrighted materials can be affected by the types of materials and the types of technologies that are being employed. The following chapter will cover the basics of fair use so that an educator can make informed decisions when selecting copyrighted materials. When in doubt, seek legal advice!

Fair Use Guidelines for Educational Multimedia

The Fair Use Guidelines for Educational Multimedia were adopted as nonlegislative reports by the Subcommittee on Courts and Intellectual Property, Committee on the Judiciary, U. S. House of Representatives, on September 27, 1996 (Moorehead & Schroeder, 1996) and are still being updated today. These guidelines represent an agreed-upon interpretation of the fair use (https://www.copyright.gov/title17/92chap1.html#107) provisions of the Copyright Act by a large majority of institutions and organizations affected by educational multimedia. However, only the courts can decide whether a particular use of a copyrighted work falls within the fair use exemption; these guidelines represent a consensus view of what constitutes the fair use of a portion of a work that is included in a multimedia educational project. The specific portion and time limitations are meant to help educators, scholars, and students identify whether using a portion of a certain copyrighted work constitutes a fair use of that work. The more one deviates from these guidelines, the greater the risk that the use of a work is not fair use and that permission must be obtained.

For the full Title 17 Copyright Law of the United States Code, see: https://www.copyright.gov/title17/title17.pdf

Multimedia Fair Use Guidelines

(See https://copyright.columbia.edu/basics/fair-use.html for more detailed information).

The multimedia fair use guidelines apply to the use, without permission, of portions of lawfully acquired copyrighted works in educational multimedia projects that educators or students create. This creation must be part of a systematic learning activity attached to nonprofit educational institutions. Educational multimedia projects created under these guidelines incorporate students’ or educators’ original material together with various copyrighted media formats, including, but not limited to, motion media, music, text material, graphics, illustrations, photographs, and digital software, which are combined into an integrated presentation.

For the purposes of the guidelines, educators include faculty, teachers, instructors, and others who engage in scholarly, research, and instructional activities for educational institutions. The copyrighted works used under these guidelines can be considered lawfully acquired if they were obtained by the institution or individual through lawful means such as purchase, gift, or license agreement, but not pirated copies. Educational multimedia projects, which incorporate portions of copyrighted works under these guidelines, may be used only for educational purposes in systematic learning activities. The activities can be used by teachers with students enrolled in courses at non-profit educational institutions for non-commercial curriculum-based learning and teaching activities, or in any other way allowed by the rules. Both students’ and educators’ uses are addressed within these guidelines.

Preparation of Educational Multimedia projects using Portions of Copyrighted Works

These uses are subject to the Portion Limitations and should include proper attribution and citation. We have only included permitted use for teachers/instructors in this section. Please see more comprehensive rules for what students can use.

Educators may incorporate portions of lawfully acquired copyrighted works when producing their own educational multimedia programs for their own teaching tools in support of curriculum-based instructional activities at educational institutions. Uses of educational multimedia projects created under these guidelines are subject to Time, Portion, Copying, and Distribution Limitations.

Online educators may perform and display their own educational multimedia projects created under these guidelines. For curriculum-based instruction, provide a password-protected learning environment (with some limitations).

Limitations: Time, Portion, Copying, and Distribution

The preparation of educational multimedia projects incorporating and using copyrighted works under these guidelines is subject to limitations. We describe some of these limitations below, but before you move forward, we suggest you follow up to see if they have changed or are still applicable where you live.

Time Limitations

Educators may use their educational multimedia projects created for educational purposes under these guidelines for teaching courses for a period of up to two years after the first instructional use with a class. Use beyond that time period, even for educational purposes, requires permission for each copyrighted portion incorporated in the production.

Portion Limitations

Portion limitations mean the amount of copyrighted work that can reasonably be used in educational multimedia projects under these guidelines, regardless of the original medium from which the copyrighted works are taken.

Motion Media

Up to 10% or 3 minutes, whichever is less, in the aggregate of a copyrighted motion media work may be reproduced or otherwise incorporated as part of a multimedia project created under these guidelines.

Text Material

There are several issues associated with text materials:

• Up to 10% or 1000 words, whichever is less, in the aggregate of a copyrighted work consisting of text material, may be reproduced or otherwise incorporated as part of a multimedia project created under these guidelines.
• 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 poems of greater length, 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

As with text, there are limitations associated with music, lyrics, and music video materials. Up to 10%, but in no event more than 30 seconds, of the music and lyrics from an individual musical work (or in the aggregate of extracts from an individual work), even if the musical work is embodied in copies or audio or audiovisual works, may be reproduced or otherwise incorporated as a part of a multimedia project created under these guidelines.

Illustrations and Photographs

The reproduction or incorporation of photographs and illustrations is more difficult to define with regard to fair use because fair use usually precludes the use of an entire work. Under these guidelines:

• A photograph or illustration may be used in its entirety, but no more than 5 images by an artist or photographer may be reproduced or otherwise incorporated as part of educational multimedia projects created under these guidelines.
• When using photographs and illustrations from a published collective work, not more than 10% or 15 images, whichever is less, may be reproduced or otherwise incorporated as part of an educational multimedia project created under these guidelines.
  

Important Reminders

Other considerations need to be addressed when incorporating copyrighted materials. The use of the internet can present an interesting challenge for educators when using copyrighted materials.

Attribution and Acknowledgement

Educators and students are reminded to credit the sources and display the copyright notice © and copyright ownership information if this is shown in the original source for all works incorporated as part of the educational multimedia projects prepared by educators and students, including those prepared under fair use. Crediting the source must adequately identify the source of the work, giving a full bibliographic description where available (including author, title, publisher, and date of publication). Traditionally, the copyright ownership information includes the copyright notice (©, year of first publication, and copyright holder's name).

The credit and copyright notice information may be combined and shown in a separate section of the educational multimedia project (e.g., credit section) except for images incorporated into the project for the uses described in these guidelines.

More recently, educators (influenced in part by Creative Commons) will list the title of the material, the author, and the source (i.e., where it is from) when providing attribution.

Licenses and Contracts

Educators and students should determine whether specific copyrighted works or other data or information are subject to a license or contract. Fair use and these guidelines shall not preempt or supersede licenses and contractual obligations.

Creative Commons

Creative Commons was founded in 2001. This non-profit organization provides “Creative Commons licenses and public domain tools that give every person and organization in the world a free, simple, and standardized way to grant copyright permissions for creative and academic works; ensure proper attribution; and allow others to copy, distribute, and make use of those works” (https://creativecommons.org/about/, section 1). They currently offer over 2 billion resources that the public can share and use. Some of the resources can be modified and used, so be sure to check out the type of CC license on the resource to provide appropriate attribution. https://creativecommons.org/about/cclicenses/

Teach Act

The "Technology, Education and Copyright Harmonization Act" was signed into law in 2002 (ALA, 2019). TEACH redefined the terms and conditions on which accredited, nonprofit US educational institutions may use copyright-protected materials in distance education, including on websites and by other digital means, without permission from the copyright owner and without payment of royalties. This law greatly expanded educators’ use of copyrighted materials in closed-circuit broadcast settings, replacing the previous version of Section 110(2). The new version of Section 110(2) offered these clear improvements: (a) expanded range of allowed works, (b) expansion of receiving locations, (c)storage of transmitted content, and (d) digitizing of analog works (ALA, 2019).

The TEACH Act permits the display and performance of nearly all types of work. Most types of work can now be displayed or performed under the new Teach Act requirements. However, some works remain excluded, and uses of some types of works are subject to quantity limitations. The TEACH Act does not replace Fair Use.

Alternatives to the TEACH Act

While the TEACH Act improves the previous version of Section 110(2), the law still contains many requirements for distance education that reach far beyond the limits of the traditional classroom. Educators should be prepared to explore alternatives when the TEACH Act prevents them from using copyrighted material. Those alternatives include:

• Using alternative methods for delivering materials to students, including the expansion of library services.
• Obtaining permission from the copyright owners for the use of materials beyond the limits of the law.

Chapter Summary

Remembering to attribute any works made by others is an important part of using resources from the internet in distance courses. Always cite the original source, speak to a copyright lawyer and/or other informed persons at your institution if you are unsure if you can use something or how to attribute something appropriately.