The Copyright ActFace-to-Face Teaching & Fair Use Exemptions

Pictures and Information in this presentation are used in compliance with the Federal Copyright Act of 1976, as amended.

The federal Copyright Act of 1976, as amended (“the Copyright Act”), establishes limitations on when copyright protected work can be copied, displayed, performed, recorded, transmitted, and/or distributed by anyone other than the author or creator of the work.

Requirements of the Copyright Act are provided in the presentation entitled “Overview of the Federal Copyright Act” and are not presented herein. The purpose of this presentation is to provide the steps and standards to follow in the Brandywine School District when an employee or student intends to use copyright protected work for instruction in the classroom or for training and professional development for staff under the Face-to-Face or Fair Use exemption of the Copyright Act.

This presentation does not provide legal advice regarding whether an intended use of copyright protected work meets the requirements of the Copyright Act. Any specific questions should be addressed to an attorney-at-law.

PURPOSE

If a Brandywine School District instructor, teacher, or student intends to use copyright protected work, s/he must have authorization from the copyright owner to copy, display, transmit or perform in public, record, create other work derived from the work, or distribute the work to others, unless an exemption applies.

General Rule

The Copyright Act provides two exemptions for students and employees of non-profit educational institutions to use copyright protected work without written authorization from the copyright owner if the work is used for educational purposes. The exemptions are known as the Face-to-Face Teaching Exemption and the Fair Use Exemption.

Exemptions provided bythe Copyright Act

The Face-to-Face Teaching Exemption establishes criteria for using copyright protected work without authorization from the copyright owner to instruct students on lessons created by a teacher. This exemption does not create a legal right to use copyright protected work without authorization, but provides a legal defense to a claim for

copyright infringement.

The Face-to-Face Teaching Exemption places limits on who is eligible to use the exemption and how copyright protected work can be used.

Face-to-Face Teaching ExemptionSection 110(1) of the Copyright Act.

Who entitled to use the Face-to-Face Teaching Exemption?

Classroom teachers and students. Non-classroom teachers (i.e. counselors, librarians,

psychologists) if they are presenting a lesson or providing instruction to students.

Librarians are entitled to additional exemptions as described in Circular 21 from the Copyright Office.

How Can Copyright Protected Work be used under the Face-to-Face Teaching Exemption?

Copyright protected work can performed, displayed, or transmitted in a classroom (or similar place devoted to instruction within the building) by teachers or students as an aspect of instruction for lessons planned by a teacher.

Classroom teachers can make one copy of copyright protected work to use in preparing lesson plans as long as the copy does not exceed fair use as descried below.

As long as:

There is no direct or indirect admission charge; The copyright protected work was legally acquired; The copyright protected work is being used as a regular

part of an instructional activity; The copyright protected work is directly related to the

content of the instruction; Acknowledgement that the work is protected by copyright

must appear on the copy being displayed, performed, or transmitted.

How can Copyrighted Material be used under the Face-to-Face Teaching Exemption?

Performing a copyright protected piece of music in the classroom. Displaying a copyright protected map during instruction. Teachers reading aloud from a copyright protected book. Students reading aloud from a copyright protected book of poetry

for a class assignment. Teachers showing students a copyright protected movie from the

school library supporting a planned lesson. Displaying a copyright protected photograph during classroom

instruction. Displaying student work in the student’s classroom.

Examples of using Copyright Protected Work under the Face-to-Face Teaching Exemption

Teachers and Students cannot:

Make multiple copies or distribute copies of protected work to students or others:

Display copyright protected work in public;

Re-record copyright protected work; or

Show copyright protected movies/videos/broadcasts, including those maintained in a school or library, as a reward or for any purpose other than instruction. (Movies and videos can be shown for purposes other than instruction if a license has been purchased allowing that use.)

If the Face-to-Face Teaching exemption cannot be used or does not meet the users needs, the Fair Use Exemption may apply.

Limitations on the Face-to-Face Teaching Exemption

The Fair Use exemption establishes criteria to use copyright protected work without authorization from the copyright owner for the purpose of education, research and other reasons. This exemption does not create a legal right to use copyright protected work without authorization, but provides a legal defense to a claim for copyright infringement.

The Fair Use exemption places limits on who is eligible to use the exemption, how much of the work can be used, and how long the work can be used without authorization from the copyright owner.

Fair Use ExemptionSection 107 of the Copyright Act

For purposes of student instruction, teachers and students are entitled use the Fair Use exemption.

Other District employees providing instruction for training or professional development for employees may be eligible to use the Fair Use exemption for multimedia or presentations. The rules for teacher created presentations will apply in those circumstances.

.

Who is entitled to use the Fair Use Exemption?

There is no simple or easy test to determine if the intended use of copyright protected work falls under the Fair Use exemption. The determination can be time consuming and complex, and is ultimately the decision of a court of law.

However, the federal Copyright Office recognizes a set of guidelines established through agreements between corporate copyright owners and several academic/artistic associations that provide criteria for the fair use of copyright protected work for educational purposes.

Fair Use guidelines are listed in Circular 21 from the federal Copyright Office.

Determining if the Fair Use Exemption Applies

Board Policy 06.19 requires adherence to the Fair Use guidelines chart referred to in Regulation R06.19.1. The Brandywine School District Fair Use guidelines chart is presented below and available in all school libraries and the main office of non-school buildings.

Other fair use guideline charts can be found on the Internet.

Fair Use Guidelines

Printed Materials

Type of Material

Can use all of: A Poem of 250 words or less One chapter from a book One chart, picture, diagram, graph, cartoon

or illustration from a book or periodical. Articles, stories, or essays less than 2,500

words.

Can use an excerpt of: 250 words from a poem of more than 250

(however can complete the sentence if it goes beyond 250 words).

10% of work or 1,000 words, whichever is less ( will allow a minimum of 500 words) from an article, story, or essay of 2,500 words or more.

Two page maximum from an illustrated work less than 2,500 words.

Fair Use Teachers can:

Make multiple copies and distribute to students in the class. Only one copy per student can be made and distributed.

Use in an academic multimedia presentation.

Make one copy for personal use in preparation of lesson plans.

Students can: Use in an academic multimedia

presentation.

Printed MaterialConditions & Limitations

Conditions

Copies may be made only from legally acquired copy of an original.

May only use the Fair Use Exemption for nine instances during a class term without authorization (newspapers can be used more often).

Not more than one complete poem, article, essay or short story, or two excerpts from the same author, or three excerpts from a collection or the same periodical (except if related to current events) can be used during a class term.

Continued…

Time Limitations

Teachers can: Use copied and distributed work

for one class term. Thereafter, written authorization is required.

Keep multimedia academic presentations containing protected work for two years. Thereafter, written authorization is required.

Students can: Keep multimedia academic

presentations in a portfolio indefinitely without acquiring written authorization.

Conditions: Cannot create anthologies or compilations. Copying cannot be a substitute for buying a copy of the work. Presentations that include copyright protected work cannot be

posted on the Web without written authorization from the copyright owner.

Students cannot make copies of the work distributed to them by a teacher.

Workbooks, test answer sheets, or work sheets cannot be copied unless authorized by the copyright notice.

Students cannot copy copyright protected work maintained in a portfolio without written authorization from the copyright owner.

Continued…

Printed Materials Additional Conditions

Conditions: The decision to use the material must be at the “instance

and inspiration of a single teacher” or student. The work must be used extremely close in time to the decision to use the work.

Cannot copy any portion of printed material sent to the District or school for review or adoption considerations.

A statement identifying the copyright and that the work cannot be re-copied or posted on the Web without written authorization from the copyright owner must be included.

A. bibliography of sources must be included at the end of a report or presentation.

Printed Materials Additional Conditions

Photographs & Illustrations

Type of Material

Single Photograph not found in printed material

Single Illustration not found in printed material

Collections of photographs Collections of illustrations

Fair Use

Teachers can: Make multiple copies and

distribute to students in the class. Only one copy per student can be made and distributed.

Use in an academic multimedia presentation.

Make one copy for personal use in preparation of lesson plans.

Students can: Use in an academic multimedia

presentation.

Photographs & IllustrationsConditions & Limitations

Conditions

Not more than 5 single images by an artist or photographer can be used.

Not more than 15 images or 10% from a collections, whichever is less.

Presentations that include copyright protected work may not be posted to the Web without written authorization from the copyright owner.

Continued…..

Time Limitations

Teachers can: Use copied and distributed work

for one class term. Thereafter, written authorization is required.

Keep multimedia academic presentation with protected work for two years. Thereafter, written authorization is required.

Students can: Keep multimedia academic

presentations in a portfolio indefinitely with acquiring written authorization.

Conditions:

Older Illustrations may be in the Public Domain, however if printed in a collection they may be copyright protected.

A statement identifying the copyright and that the work cannot be re-copied or posted on the Web without written authorization from the copyright owner must be included.

A bibliography of sources must be included at the end of a report or presentation.

Photographs & IllustrationsAdditional Conditions

Movies & Video

Type of Material

Movies Videotapes DVD Laser Discs QuickTime Movies

Fair Use

Teachers can: Use 10% or 3 minutes

(whichever is less) in an academic multimedia presentation.

Students can:

Use10% or 3 minutes (which ever is less) in an academic multimedia presentation

Remember, teachers and students can display a complete copy of a movie, video, DVD, Laser Discs, etc., as an aspect of instruction under the Face-to-

Face Teaching Exemption.

Movies & VideoConditions & Limitations

Conditions Copyright protected work in multimedia

presentations must have been legally acquired by the user.

A presentation containing copyright protected work may not be posted to Internet or Web.

A statement identifying the copyright and that the work cannot be re-copied or posted on the Web without written authorization from the copyright owner must be included.

A bibliography of sources must be included at the end of a report or presentation.

Time Limitations

Teachers can: Keep multimedia academic

presentation with protected work for two years. Thereafter, written authorization is required.

Students can: Keep multimedia academic

presentations in a portfolio indefinitely with acquiring written authorization.

Television Broadcasts

Type of Material

Purchased Videotapes of TV broadcasts.

Live “off the air” TV broadcasts

Fair Use

Teachers can: Make one copy of a pre-

recorded Video for classroom instruction.

Record a live “off the air” broadcast for classroom instruction.

Television BroadcastsConditions & Limitations

Conditions

Cable channel programs cannot be taped or used without authorization from the Cable Company.

Off-air recordings must be made and used by the individual teacher and may not be regularly recorded in anticipation of need.

A limited number of copies may be rerecorded from off-air recordings to met the needs of the individual teacher.

Continued…..

Time Limitations Recordings from pre-purchased

Video recordings or off-air recordings may be kept for up to 10 school days

Off-air Recordings can be used once in the course of Face-to-Face teaching and may be repeated once when reinforcement is necessary

A teacher may be able to retain recordings from a Cable channel may for a period of years (see Cable in the Classroom at www.ciconline.org).

Conditions:

The content of off-air recordings may not be altered, however excerpts from the recording of the program may be used instead of the entire program.

Recordings may not be combined to create an anthology or compilation.

All copies of off air-recordings must include the copyright notice as originally shown on the broadcast.

Television BroadcastsAdditional Conditions

Music

Type of Material

Musical Scores Records Tapes/Recordings Audio Clips on the Web Music Video

Fair Use

Teachers can: Make emergency copies of scores to replace

purchased copies not available for an imminent performance

Make a single or multiple copies of up to 10% of music to use in the classroom as long as a compilation of excerpts do not comprise a unit of performance.

Can record and retain a single copy of student performances for evaluation or rehearsal.

Make a single copy of a copyrighted sound recording for aural exercises or examinations.

Use 10% or 30 seconds (which ever is less)of a song for a multimedia presentation.

Students can: Can record and retain a single copy of student

performances for evaluation or rehearsal Single copy of a copyrighted sound recording for aural

exercises or examinations. Use 10% or 30 seconds (whichever is less) of a song

for a multimedia presentation.

MusicConditions & Limitations

Conditions The sound recordings from

which copies are being made must be owned by the educational institution or individual teacher.

Copies cannot be made to create, replace, or substitute for anthologies, compilations, or collections of work.

Copies of scores cannot be made for the purpose of performances.

Time Limitations

Copies of replacement scores may be retained for the performance only. Thereafter, replacement scores must be repurchased.

Copies of recorded performances for aural exercises or examinations may be retained by the educational institution or individual teacher.

Teachers can: Keep multimedia academic

presentation with protected work for two years. Thereafter, written authorization is required.

Students can: Keep multimedia academic

presentations in a portfolio indefinitely with acquiring written authorization.

Copyright protected material must be purchased or a license fee paid if the material is used for a performance by students that is not a part of classroom instruction (i.e. Choir, Orchestra, Band, Play, Musical)

Written authorization must be acquired to publically display art work.

Student Performances & Displays

Materials from the Internet

Type of Material

Text Images Sound files Video

Fair Use

Teachers & Students can: Download images and text for

Face-to-Face instruction. Download all types of

material for use in an academic multimedia presentation.

Materials from the InternetConditions & Limitations

Conditions Resources from the web may not

be reposted onto the Internet without authorization.

Links to legitimate resources can be posted to the Internet.

Downloaded resources must be legally acquired by the website.

A statement identifying the copyright and that the work cannot be re-copied or posted on the Web without written authorization from the copyright owner must be included.

A bibliography of sources must be included at the end of a report or presentation.

Time Limitation Teachers can:

Keep multimedia academic presentation with protected work for two years. Thereafter, permission must be acquired.

Students can: Keep multimedia academic

presentations in a portfolio indefinitely with acquiring permission

Computer SoftwareSections 107 & 108 of the Copyright Act

Type of Material

District Purchased or Licensed Software

User Purchased or Licensed Software

Software borrowed from a library

Fair Use District Technology

Department can: Install District purchased and

licensed software onto District computers.

Teachers & Students can: Install software they purchase

personally or have a license for unto their home computer.

Install software borrowed from a library onto their home computer.

Computer SoftwareSections 107 & 108 of the Copyright Act

Conditions Copies of Software cannot be

made for retention The number of Computers

that may use the software is limited by the terms of purchase or license.

The number of computers or simultaneous users cannot exceed the number of licenses.

Time Limitations

Purchased or licensed software Determined by the terms of

purchase or license. Borrowed software

For the period of time allowed under the terms provided by the Library.

Distributing copies of a 250 word poem to students for a poetry lesson.

Recording a documentary on the Civil War broadcast on a national station (i.e. CBS) to show in a history class.

Providing photography students with five (5) copies of a photograph taken by a single photographer as examples lighting.

Examples of Fair Use

The Fair Use Guidelines provide a defense to an allegation of copyright infringement. However, the determination is ultimately the responsibility of a court of law based upon an analysis of: The purpose of the use—Educational or Entertainment The nature of the work—Factual or Creative The amount of the work used—Small or Large Percentage Effect of the Market for the work—Small or Large Audience Time the Decision to use work was made—Short or Long time

before using the work.

Final DeterminationOf Fair Use

If the analysis determines that use of copyright protected work falls into all categories within the Left Column of the chart below, then a court may find that the use was allowed under the Fair Use exemption.

If the analysis determines that the use of copyright protected work falls into any of the categories within the Right Column of the chart below, then a court will probably find that the use was not allowed under the Fair Use exemption a copyright infringement.

Final DeterminationOf Fair Use

Outcome of Analysis of Factors

Possibly Fair Use

Purpose of use—Educational or scholarly

Nature of work—Factual Amount Used—Small portion or

Percentage Size of Audience—Single Use or a

small effect on the market for the work

Decision to use work—Spontaneous or close in time to the use and not enough time to ask for and receive authorization

Probably an Infringement Purpose of use—Entertainment or

Reward Nature of work—Creative Amount Used—Entire work or

large Percentage Size of Audience—Multiple Use or

a large effect on the market for the work

Decision to use the work—Systematic or continued

Original work can be used for instruction of students, or training or professional development of employees in the Brandywine School District if:

The work is not protected by the Copyright Act; or

The requirements of the Copyright Act are followed as presented.

The best practice is to have authorization from the copyright owner before using copyright protected work.

Summary

Summary Chart

Status of the Work to be Used

Work is Not Protected Work is Protected

Work in the Public Domain

Purchased Copies

License

Written Authorization

Face-to-Face Teaching Exemption

Work created Government

Fair Use Exemption

Work never Protected

Unrestricted use of Cannot use unless

Federal Copyright Website www.copyright.gov Circulars 1,3,15a, 21, and 22.

Know Your Copy Rights —What You Can Do, [brochure] Washington, DC: ARL, 2007 at www.knowyourcopyrights.org.

References & Resources

Technology & Learning—Copyright and Fair Use Guidelines for Teachers www.techlearning.com

Copyright and Fair Use Guidelines for Teachers www.halldavidson.org

Copyright Kids www.copyrightkids.org

References & Resources