E-Learning Materials: Copyrights and Fair Use

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Table of Contents

Introduction
Fair use and US copyright law
Tests used by the court
Other prohibitions under the fair use
The new challenge
Conclusion
References

Introduction

Technology is changing the common forms of teaching instruction in the world today. Be it in Seoul, Beijing, London or Washington, more and more students, especially in higher education are coming online to learn. This is however commonplace in distant learning programs that colleges and other universities around the world have begun. In the US education sector, there is the increased use of ICT facilities to aid learning but online learning has not been institutionalized due to the need to rely on proven traditional resources (Halverson & Collins, 2009).

However, ICT technology has not stopped individuals from learning on their own and challenge traditional notions of learning. Most students go online after classes to augment their classroom experience while keeping themselves updated on new ideas and schools of thought from around the world. This means that education is more wholesome and the role of the teacher as the epitome of knowledge on particular subjects is being challenged.

Due to the novelty of this virtual or e-learning, there have been several issues that have arisen mostly on copyrights and fair use. Due to available technology, infringement of copyrights is much easier since copying and distribution have been made much easier. The quagmire on what infringes copyright over the internet and what does has not been made easier by the lack of clear legal guidelines on intellectual property available over the internet (Maeroff, 2003).

Most educators particularly those who teach online are more susceptible to making copyright infringements most of the time unintentionally. Wilson (2005) states that while some material used by these teachers may fall within the terms of fair use defined in the copyright statutes, it is prudent for teachers to find out what entails fair use and what needs permission from the copyright owner. Unlike in the traditional era where books have clearly shown copyrights on their title pages, material from the internet may not. It is even possible for one to find material protected by copyright being offered free which means that extra caution is required in the e-learning experience.

Fair use and US copyright law

The Copyright Act of 1976 is the applicable legal regime dealing with the issue of copyrights. The Act issues guidelines on the issue of copyright registration, ownership, protection, and expiry. However, it has undergone several amendments though much of the 1976 Act remains intact especially the part dealing with the protection of copyright. The biggest amendment made to the Act has been the increase in copyright duration from 50 years to 70 years. The US Copyright Office also issues some regulations on copyright use and protection.

Newsome (1997) states that before using material available online or distributing any learning material, both the teacher and student should consider whether is protected by copyright or not. The materials not protected by copyright are mainly those that are freeware i.e. their owners have not protected their materials. Others include government documents, materials in the public domain (those whose copyright protection has expired), facts, and those materials that lack originality such as phonebooks.

To find out whether the material is protected by copyright, especially where there is no notice or warning shown in the material itself, one needs to consult the Copyright Office or follow the guidelines on the Copyright office circular How to Investigate the Copyright Status of a Book. Section 107 of the Copyright Act states the exclusive rights protected by copyright. These are rights to reproduction of the work, making of derived works based on it, distribution through sale, gift, rental, and/or lease, public performance in the case of performing arts, and finally, display of images, pictures, sculptural or audiovisual work.

There are exceptions to the protection of copyright as contemplated in the Copyright Act. Fair use is one good example. Section 110(1) and (2) also contain some exceptions. The provisions of Section 110 allow for the efficient facilitation of distance learning across a network. Section 110(1) of the Act gives leeway for both teachers and students to display or perform any kind of copyrighted material as long as it is in the course of their teaching/learning activities in a non-profit educational institution.

Section 110(2) on the other hand gives teachers and students in non-profit educational establishments a leeway to perform or display a non-dramatic copyrighted piece of either literary or musical value in a distance learning class. The display or transmission of the copyrighted work for distance learning must be to assist or facilitate classroom instruction and must, therefore, relate to the content being taught. The Act also requires that the display or transmission be done in a classroom or any other place that is normally designated for learning.

The two sections 110 (1) and (2)) facilitate the performance, transmission, and display of copyrighted works for purposes of distance learning. However, there is a need for a set of guidelines to fill the gap created by the limitations of section 110(2). Various conferences and meetings among stakeholders have come up with various guidelines with intent to promote the fair use of dramatic and audiovisual works by distance learning instructors. In some of the set guidelines, fair use has included the performance, transmission, and display of audiovisual work in a one-time transmission. However, no copies should be made as a consequence of the transmission unless permission to do so has been granted by the copyright holder.

The principle of fair use gives individuals a chance to use protected material in such a manner as to interfere with the owner’s exclusive rights, albeit in a more limited manner. Fair use is allowed under section 107 of the 1976 Copyright Act which states that “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.”

Since the provisions of section 107 are not detailed on the scope of fair use, it is up to the courts to decide what constitutes fair use and what does not qualify. Through precedence, courts have come up with four factors to determine whether a use meets the requirements of fair use. Wilson (2005) states that these are the factors that influence the court’s decision as to whether a particular use of copyrighted material either constitutes fair use or it is an infringement of copyright law. The factors are;

Purpose and character of the use

The court looks at the reason and manner in which the copyrighted material was used to determine whether an infringement occurred, or the user can be termed as fair use. The purpose of the use stems from the context in which it was used. If it is used for a purely commercial purpose, then an infringement has occurred and the user may be required by the court to pay a hefty compensatory sum to the copyright holder. If the use is for a non-profitable academic cause, then the court is more inclined towards dismissing the use as fair use. Also, teachers who spontaneously make copies of some material that they rely on to teach can be said to be making fair use of the copyright. However, it is important to note that the court does not rely on just one of these factors but all four of them when trying to determine fair use.

Nature of the copyrighted work

The nature of work here is used to mean the kind of material that is copyrighted. Normally, courts will allow fair use of chapters of books, graphics, prose, short poems, magazine/newspaper articles, artwork, short essays, motion media, broadcast programs, and music.

Substantiality of the amount intended for use

Normally, the court will look at the amount of information-borrowed Vis a Vis the whole. Schools have come up with charts to help teachers know what amount constitutes fair use and what does not. According to these charts and other guidelines, some amount of copying is considered allowable. These are:

The teacher is allowed under the terms of fair use to make a single copy of material they feel is relevant to classroom instruction or aid in the preparation of class material. However, the act of copying must be within the limits provided by the tests mentioned below.
Multiple copies can also be made to aid students in the course of active classroom instruction as long as each student only gets one copy of the material. Copies can be used for instruction, class use or even discussions as long as;

The tests of brevity, cumulative effect and spontaneity are satisfied and,
Each copy reproduced includes a notice of copyright

Effects on the potential market and value of the copyrighted work

This fourth requirement is purely for the interpretation of the courts. This is because they are in the right position to find whether the market or value of the copyrighted material fairly used has fluctuated due to fair use. Where the material’s value or potential market has been negatively affected by the use of the copyright, then such use shall not qualify to be fair use. This is because the principle of fair use mainly developed to allow some limited access to copyright material without interfering with the protection of the property.

Tests used by the court

Brevity test- this test looks at the extent or percentage of the copied work vis a vis the whole of the copyrighted work. The court uses precedence to determine the numerical limits that satisfy fair use and those that exceed and are thus infringements. Examples of such limits are:

In the genre of poetry, the principle of fair use limits the number of words that can be duplicated from a copyrighted poem to 250 words. This means that poems with 250 words or less can be completely duplicated. The provision for excerpts is that they should not be longer than 250 words.
For prose, articles, essays, and stories can be duplicated completely if they do not exceed 2,500 words. The limit for prose excerpts is the lesser between 1,000 words or 10% of the prose. [In “i” and “ii” above, fair use allows expansion over the minimum number of words to accommodate hanging paragraphs in prose or incomplete lines in a poem]
Illustration- only one chart, cartoon, diagram, graph, drawing, or picture per book.
Special works are those that combine spoken word with illustrations such as poetic prose and mostly target children though they may apply to a general audience. Fair use dictates that special works cannot be completely duplicated and a limit of 2,500 words is set.

Spontaneity test- this stems from the teacher’s intentions. The court usually tries to find out whether the copying was done to teach or for other purposes for which fair use does not apply. It is thus necessary that the idea to reproduce the material is not pre-conceived. The court considers whether;

The act of copying itself was inspired and instructed by the individual teacher in the course of instruction, and
The spontaneity and desire to use the work must be so close together a request for permission would not have been reasonably expected in the timeframe.
Cumulative effect test- while fair use allows educators to use copyrighted material in a limited manner, it should not in any way jeopardize the market of the material being used. To ensure that this does not happen, the following steps should be taken;

The material should only be duplicated for one particular course.

Only one copy should be made for a particular material or excerpt from one author. Fair use only allows three copies to be made from the same collective work in the course of one school term.
In total, only nine multiple copies can be made for one course during a term.

Other prohibitions under the fair use

The duplication process should not in any way be used to serve as a replacement for certain works such as compilations and anthologies.
Material that is considered consumable is not available for duplication under fair use. Examples of consumables are those materials that are specifically made to aid or facilitate classroom instruction such as textbooks, tests and answer booklets.
Copying of copyrighted material should be in a limited manner. Additionally, it should never be a substitute for buying the material. No copy should also be made more than once for the use of one teacher in a class term.
At no time should one make a profit through fair use of copyrighted material.

The new challenge

This challenge is brought about by the increased use of technology thus introducing new dimensions that were not contemplated when the copyright laws were being drafted. Both the increase in internet connectivity and the availability of computers are bringing about greater access to more information. The available technology has made the process of distribution and copying much easier such that it is tempting for users to ignore copyrights and share available material. Transfer of data has also been made easier and storage is much more convenient (Watson & Ryan, 2007).

These fast transfer speeds and open communication between instructors and students leads to a temptation to share copyrighted material without due regard for copyright laws. The technology may seem to support it but the law on copyright is very clear on issues such as distribution, duplication, and display. Unfortunately, all these can be done with the click of a mouse and without any trail of evidence.

It is therefore not surprising that teachers often do not comprehend how much leeway they have been granted in using other people’s copyrighted work. However, teachers play a key role in society as the shapers of opinion among the youth. It would not be a great influence on a student to always use copyrighted material without due regard to it as intellectual property. This behavior could trigger a situation where students do not recognize the need for copyrights. It is thus very necessary that instructors, especially those offering e-learning, always lead the way in respecting copyrights and insisting that their students follow suit.

Some teachers may without due regard to or knowledge of what copyright protection entails, copy materials illegally. Through this system of honesty, teachers may find that they might save themselves the trouble of being before a court of law and being forced to pay a huge sum of money from their savings just because of one unwise act. Besides, they should familiarize themselves with copyright law and ensure they understand the concept of fair use.

Newsome (1997) comes up with a very simplified process of finding out how to use copyrighted materials without infringing copyright. This is in the form of three simple questions;

Will the author’s expression form part of the use?

The expression is defined as the distinct manner in which ideas or words flow to fit a certain frame or plot thus forming a vivid concept. If the answer to the question is undoubted “no,” then you may proceed to use the work. However, direct copying or reproduction of the author’s work is equivalent to using his or her expression. One should consider question two where the answer to this question is in the affirmative.

Is the expression protected by copyright?

If the answer to this question is a definite “no,” then the work is used. Materials not protected by copyright as earlier seen are freeware. This means that there is no limit to the possible uses for the material. However, where the answer is still in the affirmative, one should consider question three.

Will the intended use overstep the terms of fair use?

The use of the copyrighted material should well be within the boundaries of the principle of fair use. However, one still has to check for the applicable limitations. Where all the answers to the above three questions are in the affirmative, then the author’s permission should be sought before using the material.

Conclusion

E-learning and teaching online are the future of education. However, as we have seen, various impediments are preventing the efficient application of these learning concepts in all educational institutions. One such issue is that of copyright which I have discussed. Nevertheless, many higher learning institutions have come up with distant learning programs (Lowes, 2008). Also, stakeholders are coming together to develop a framework to regulate issues of copyright in distance learning programs. A good example is the Conference on Fair Use (CONFU) which was a creation of 93 US organizations with interests in copyrights.

The 93 organizations sunk millions of dollars over two and a half years trying to come up with acceptable terms between them. Among the issues discussed was the growth of distance learning and the related issues of copyright. However, copyright owners, mainly represented by big publishing companies felt that they would concede too many of their rights if the proposed guidelines on copyright were made enforceable. This led to an impasse that caused CONFU to declare that it had failed to reach a consensus in April of 1997.

After CONFU failed to take off in 1997, most institutions offering distance education agreed to the following guidelines. These guidelines permit the transmission of copyrighted information through a secure network and the retention of a copy of the transmission for 15 days for viewing by distance-learning students. However, access to the copy for viewing should be done in a classroom or library, and the institution must prevent students from copying the work. Also, the teacher must obtain permission from the owner of the copyright if he or she intends to use the material for longer (Wilson, 2005).

Hopefully, as time progresses, proper legal and structural mechanisms will be put up to facilitate a system of virtual or e-learning that respects copyrights while allowing the free flow of information. This would open up a world filled with opportunities and education would not be monopolized as it is now.

References

Halverson, R and Collins, A. (2009). Rethinking education in the age of technology: The digital revolution and schooling in America. New York: Teachers College Press.

Lowes, S. (2008). Online Teaching and Classroom Change: The Trans-ClassroomTeacher in the Age of the Internet. Innovate Journal of OnlineEducation, Vol: 4(3) pp55-66.

Maeroff, G., (2003). A Classroom of One. New York: Palgrave Macmillan.

Newsome, C (1997). A Teacher’s Guide to Fair Use and Copyright: Modelling Honesty and Resourcefulness. New York: Palgrave Macmillan.

Watson, J., & Ryan, J. (2007). Keeping Pace with K-12 Online Learning: A Review of State-level Policy and Practice. Web.

Wilson, L. (2005). Fair us, free use and use by permission: How to handle copyrights in all media. New York: Allworth Press.

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