Abstract:

Why did I choose this topic?

When trying to decide on a research topic for my Multimedia Literacy course at the University of Delaware, few current issues dealing with multimedia seemed as important, misunderstood or interesting to me as the educator’s right to fair use of multimedia versus possible copyright infringement. From a personal standpoint as both an educator and as a student, I’m well aware that the terms ‘fair use’, ‘educational purpose’, ‘copyright’, ‘public domain’, etc. are often thrown around without a real understanding of the terms or their weighty implications. I had to wonder, had I ever unknowingly infringed upon copyrights despite the fact that I’ve never profited monetarily from things created for classroom use? Could I, a teacher, be sued for such practices?

Until recently, I too knew virtually nothing about this large and confusing topic. What I have found has not only been interesting, but also quite enlightening and certainly important to my future career as an educator. Though still pervasive among my colleagues, I now know that he notion that a teacher can use whatever multimedia resources they please without consequence simply because it is for educational purposes rather than for profit is simply not true.

Goals for this Paper.

With the increasing prevalence of technology – especially multimedia – in the educational environment, questions regarding legal and fair use for educators have arisen faster than answers or explanations have been given. Combined with recent media coverage of copyright infringement lawsuits involving Napster and Kinko’s, the eyes of the public, teachers included, have finally begun to be opened to the importance of understanding copyright laws. Educators, especially those, whom have for a long time considered themselves exempt from copyright laws, must now take a second look at the statutes governing the fair use of copyrighted multimedia material both inside and outside their classrooms.

It is my goal to create a document that will serve to enlighten educators and others in my field about the issues surrounding copyrighted multimedia use in education. It will certainly not be a definitive guide to using such materials as I am certainly not an expert, and more importantly, not a copyright lawyer. As I have found from my research, no such guide can exist because of the way the Copyright Act is written. It is purposely vague. Instead, I will refer readers to the best guidelines presently available – on the web of course. It is my hope that by compiling the information I have found into a manageable form, this paper will serve as a way to remove some of the ignorance and confusion surrounding ‘Fair-Use’. Most of all, I hope to provide a resource that will enable educators to find the information that is relevant to their needs and to foster the spirit of education which is the respect for intellectual property of others.
 
 

What is multimedia?

This word is everywhere today. Everybody thinks they know what it means, but what is the definition? The best answer I’ve found to that question is from Fred T. Hofstetter in the opening chapter of his textbook, Multimedia Literacy, 3^rd Ed. To put it concisely, he says "[m]ultimedia is the use of a computer to present and combine text, graphics, audio, and video with links and tools that let the user navigate, interact, create, and communicate."(Hofstetter) This definition is the type anticipated to be found in a college textbook. Indeed, it communicates a great deal about what multimedia is and does for its users and creators, many of whom are educators at our nation’s universities.

"Educators have long brought life to their teaching by engaging their students through the use of sound, video, commentary, slides, photographs, art and text. And by making it possible to combine different media, new technologies offer faculty many more opportunities for enhancing the texture of their teaching." (Carpenter) The benefits of using media in the classroom are magnified when instructors combine resources into multimedia formats for use during lectures or outside the classroom. But it is important to note a difference between the use of one media source in class, and the use of prepared multimedia presentations. As Carpenter puts it, "while educators are free to present sounds, images, and text as separate entities, some suggest they may overstep the parameters of copyright if they compile such material into multimedia formats without first obtaining permission from all copyright holders."(Carpenter) This brings us to another definition of multimedia, which although less technical, also says something rather important about multimedia and its place in our society: "[m]ultimedia…is…a lawyer’s ultimate nightmare." (UT System²) This statement raises an important question: why is multimedia, regardless of how you choose to define it, causing such legal nightmares?
 
 

How is Multimedia Different than Print Resources?

Beyond the obvious that multimedia isn’t printed and gathering dust on a bookshelf, it is the way that multimedia is distributed and accessed that so greatly differentiates it from printed resources. Unlike in the past when it took a relatively large amount of time and effort for somebody to have his or her work copyrighted, published, and distributed in printed form, today it is possible for newly created materials, whether literary, artistic or otherwise, to be made accessible instantaneously to the public via the Internet. Convenience and access to materials has greatly increased in recent years with the advent of certain technologies such as the Internet; but at a certain price, that of copyright infringement. As can be imagined, clicking print, download, or even cut and then paste, is infinitely faster than dragging heavy volumes to the photocopier. Unfortunately, it is often at the copying site that users are reminded of the importance of respecting copyrighted materials in the form of displayed notices which tend to be lacking on the web. This is not to say however, that such multimedia resources, especially those accessed via the web, are not protected by those same copyrights, they are simply prone to more infringement complications.(Carpenter) As a result, whereas going to a large university library and strolling through the stacks triggers thoughts about avoiding plagiarism or copyright infringement, surfing the web from home in order to find materials to spice up lesson plans or a multimedia presentation doesn’t feel like quite the same scholarly pursuit, and admittedly, somehow less worthy of the same adhesion to the rules of academia already mentioned.

Linda K. Enghagen seems to understand this dilemma for educators. She writes, "[T]he very nature of certain technologies, such as the Internet, creates additional disincentives [to learning about / abiding by copyright laws]. The speed, ease, and low cost of downloading materials readily obscures the possible illegality of doing so." She goes on to say however that, "technical capacity and legality are not the same thing. In the case of educators and educational institutions, ignoring the rules or confusing technical capacity with legality is simply foolish." Foolish indeed because educators and the institutions for whom they work are far from exempt from copyright laws. While it is true that the special ‘fair use’ provisions to the Copyright Act enable many materials to be utilized for educational purposes, an educational purpose alone "may or may not protect professors-turned-multimedia-authors against lawsuits asserting infringement. It all depends on the circumstances of the use." (Carpenter)

By not making a conscious effort to learn how and when multimedia resources may be legally used, as educators have usually done in the past for print resources, "we may be exposing our educational institutions, our students, and ourselves to potential legal liability." (Enghagen) Learning about the copyright laws that govern the use of multimedia for educational purposes, especially those found on the Internet, is therefore not an option to educators, but a necessity and a professional responsibility.
 
 

What is Copyright and what is its purpose?

There is so much written that attempts to answer that question. In fact, the notion of what a copyright is, and what it is meant to do is much misunderstood. We must first look at copyrights from a historical perspective. Why were copyrights first created? The answer is simple: to regulate a new technology that was revolutionizing the late fifteenth century world, the printing press. At this time in England, the Statute of Anne, most often cited as the world’s first copyright law, was created to protect the publishing rights and guarantee the profits of English printers, booksellers, and bookbinders. Although previous laws had been used to create monopolies and even censor information from being disseminated, the "Statute of Anne clearly rejected copyright as a tool of censorship and instead focused copyright on advancing learning."(Loren)

As Americans, our right to copyright works comes from the U.S. Constitution, Article I, Section 8, Clause 8 which states that Congress has the power to " promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." It is the Copyright Act which later specified the exact provisions of that original constitutional clause which today grants copyright owners " a limited monopoly on his or her creations" as "an incentive for undertaking the risks inherent in creative activity." (Enghagen) It is intended not only to protect the rights of copyright holders, as many people mistakenly believe, but also to serve a public purpose, that is to say an educational purpose or "the Progress of Science" by the inclusion of certain limitations on the exclusive rights of authors. As Sandra Day O’Conner put it:

The primary objective of copyright is not to reward the labor of authors, but’ [t]o

• Reproduction Right. The reproduction right is the right to copy, duplicate, transcribe, transcribe, or imitate the work in fixed form.
• Modification Right. The modification right (also known as the derivative works right) is the right to modify the work to create a new work. A new work that is based on a preexisting work is known as a "derivative work."
• Distribution Right. The distribution right is the right to distribute copies of the work to the public by sale, rental, lease, or lending.
• Public Performance Right. The public performance right is the right to recite, play, dance, act, or show the work at a public place or to transmit it to the public. In the case of a motion picture or other audiovisual work, showing the work’s images in sequence is considered "performance."
• Public Display Right. The public display right is the right to show a copy of the work directly or by means of a film, slide, or television image a t a public place or to transmit it to the public. In the case of a motion picture or other audiovisual work, showing the work’s images out of sequence is considered "display." (Cyberspace and New Media Law Center)

What’s Protected and What’s Not?

Copyrights are designed to protect "original works or authorship" that fall into the following broad categories as defined by the U.S. Copyright Office:

• Literary works
• Musical works, including any accompanying words
• Dramatic works, including any accompanying music
• Pantomimes and choreographic works
• Pictorial, graphic, and sculptural works
• Motion pictures and other audiovisual works
• Sound recordings
• Architectural works

There are also several categories of works that are not covered by copyrights or are uncopyrightable. Obviously, works that do not meet the two requirements of originality and fixation are not copyright protected. In addition, "[w]orks prepared by federal government officers and employees as part of their official duties are not protected by copyright."(Cyberspace and New Media Law Center) Similarly, "works consisting entirely of information that is common property and containing no original authorship" are not eligible to receive copyrights. These works are often referred to as "sweat of the brow" works because they are the result of hard work (compiling data for example), but do not demonstrate original authorship of any kind. Works that fall into these categories are known as "public domain" works. Likewise, once the terms of a copyright have ended or if it a work was produced before copyright laws took effect, the work is also a part of the public domain and the author no longer possesses the aforementioned exclusive rights. (For more information on the when works pass into the public domain, please go to http://www.unc.edu/~unclng/public-d.htm).

It is important to note that lack of a copyright symbol on a work does not denote that it is part of the public domain. Since 1989, works created are automatically copyrighted and protected regardless of copyright notice or registration with the U.S. Copyright Office. Any work, whether in print or electronic form, should be assumed to be protected by copyright unless otherwise noted to be in the public domain or fitting of one or more of the other descriptions mentioned above.

What is the Fair Use clause to the Copyright Act?

We will quote the Copyright Act in a moment, but to begin we will look to the rationale for the Fair Use clause. The statute is one of the important limitations to the "exclusive rights" previously discussed that allow for the use of copyrighted materials in ways that might be otherwise infringing. Linka K. Enghagen explains:

Thus it is statute 107 of the Copyright Act of 1976 that keeps the copyright laws constitutional by preventing monopoly and by maintaining the purpose of promoting learning as described earlier. It is equally important to note that all materials copyrighted are subject to the fair-use statute and that under no circumstances can a copyright holder refuse the fair use of their material as it is not seen as infringement. The following is the fair-use statute from the U.S. Copyright Act:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

As Ms. Carpenter goes on to explain, this vagueness "has been the bane on both sides of the debate for those who would rather have rules and regulations spelled out. Fuzzy boundries make a lot of people very uncomfortable. It takes guts on the part of educators to test the boundries, especially in a litigious climate …"(Carpenter) Guts indeed, but not guts alone. A well-informed educator should be able to make a reasonable decision regarding the fair-use of copyrighted materials. For this reason, we will further explore the meaning of the four-factor test for fair-use.

What is a Fair-Use?

1. What is the intended use of the material? Beyond the statutory categories such as scholarship, news etc., and perhaps of greater importance, is the use for commercial or non-commercial ends? Now of course many publishers and authors publish and write books to make money and some actually do (email me if you know of some!) But this alone does not mean that the usage of the material is not entitled to a "fair use" determination. This is merely one consideration. On the Internet for example, if you are merely posting to a news group to convey information or to someone in email, perhaps no commercial usage is involved although the other factors must still be considered. But what if you post it to your web site? And what if your web site is a commercial web site, one where goods and/or services are offered for sale?
2. Is the material sought to be used fiction or non-fiction? More protection is accorded works of fiction and imagination than works of non-fiction. As I writer myself as well as an attorney, it is not clear the reason for such distinction but it exists. Is fiction considered more protectable than non-fiction and if so, for what reason? But even within this category, you may get different responses from different owners of the material. In my own experience, when I was clearing uses for "The Tao of Love" and "The Tao of Money," some publishers decided that translations of ancient languages, such as translations of the Tao Te Ching, written some 2,500 years ago, were considered by them to be "poetry" and so no amount of usage qualified as "fair" and it all had to be licensed. Again, it is not clear the reason that prose is somehow considered less worthwhile of protection but there it is.
3. The amount of use made. Although some publishers or other owners fix a word limit, do not be misled into believing any use within that word limit is fair. There is no fixed rule here. And within this category, some publishers say that you cannot use their copyrighted material in any way that is set apart from the body of the text, such as in an epigram or the like. Nor may you use the material on the cover of the work nor use the material in any way that gives it greater prominence than the rest of the work. This plays into the commerciality of the usage and on the marketability of the original work, covered next.
4. What is the effect on the marketability of the copyrighted work? The author or publisher who uses the material certainly would claim that its use enhances sales of the material because readers might be inclined to then purchase the work containing the copyrighted material that previously they perhaps would not have known about. But this sort of "hoisting oneself by one's bootstraps" kind of argument does not, in and of itself, carry the day. In other words, the argument goes, simply by using the copyrighted work in and of itself makes it "fair use." In this regard, the courts look to see if the copy is a substitute for the protected work, thereby depriving the owner of the protected work of some economic benefit. And this category relates to the previous one in that if you use the material in such a way as to give it more prominence, such as in an epigram for example, you may be depleting the value of the protected work. (Hoffman)

 

It is also important to realize that these four factors are not the only ones that need be considered in determining the "fairness" of a use. As is noted in the Regent’s Guide to Understanding Copyright and Educational Fair Use, a product of the University System of Georgia, "[o]ther factors that may be relevant are the availability of the work, the ability to determine whether the work is still under copyright, and the ability to locate the copyright holder." Taken all together, one comes to a simple conclusion, there is no possible answer to the question "What is a Fair-Use?" But one thing is for sure, "educational purpose alone does not make a use fair"(CETUS). The terms are not synonymous as it is only one of many factors considered.

So what is an educator to do? Is it really up to every person to read and interpret the copyright laws and to make sense of complicated legalese? One option educators have is it to look to example cases of fair-use determination and past court decisions against or in favor of fair-use. (For such resources, please go to the "How to Obtain Further Information" at the end of this document.) And although officially the final word comes from the judge after a court-case is heard, (one cannot always depend on past precedent either) thankfully fair-use guidelines have been developed in recent years that have gone a long way toward providing educators with the type of information they need to make informed decisions regarding use of copyright-protected materials. We now turn to the guidelines for further guidance.

Thank Goodness – Fair-Use Guidelines

It is no secret that the fair-use guidelines are vague; they were purposely made that way. But even Congress was aware at the time it passed the Copyright Act in 1976 that this vagueness, which although essential to ensuring that the spirit of the copyright law remains one that promotes the public interest, it also leads to confusion among possible users of copyrighted materials. For this reason, Congress urged numerous parties to develop guidelines that would aid in defining the "permissible educational and library uses of copyrighted material. These guidelines, which set minimum (or "safe harbor") standards for fair use, have won congressional endorsement and wide acceptance."(CIM) Unfortunately, these guidelines were created before the advent of recent technologies which push the envelope of fair use further than these guidelines were intended to address.

The shortcomings of these guidelines were later addressed in 1994 by The National Information Infrastructure Working Group on Intellectual Property Rights when it created the CONFU, the Conference on Fair Use . (Dalziel) It’s purpose, according to the CIM, was "to bring together copyright owner and user interest groups to negotiate new guidelines for the fair use of electronic media in education and libraries." Indeed, interested parties from all sides of the fair-use issue were represented including government agencies, private publishing companies, professional educational societies, and major universities.(for the complete list, please refer to guidelines themselves) In the end, these conferences yielded The Fair Use Guidelines for Educational Multimedia, a document that addresses the needs of educators who produce multimedia that employs other copyrighted materials, a derivative work as defined by the Copyright Act.

The guidelines are highly detailed explaining clearly the purpose of the guidelines:

Popular Misconceptions

With all this legal talk and these long and detailed guidelines, it is little wonder that there are still many misconceptions out there concerning copyright, and specifically the fair-use statute of the Copyright Act. Luckily, there are websites that address this very issue. On his site, 10 Big Myths about copyright explained, Brad Templeton attempts to remove some of the ignorance that surrounds copyright laws. He dismisses the belief that no copyright notice means it is part of the public domain, and that by not charging or profiting from the copyrighted work, one is exempt from penalty.

Other misconceptions I’ve found refuted in my research include the following:

1. The author of a work always automatically owns its copyright. Not true. (Carpenter)
2. By following the guidelines, I’m guaranteed legal protection. Not true. (Enghagen)
3. If a use is educational, the copies and distribution allowed are endless. Not true. (Fair Use Guidelines for Educational Multimedia)
4. "Many people believe that if they change a preexisting work enough to make it unrecognizable, there is no liability for infringement…" Not true. (UT System²)
5. If a use is "fair", there is no need to credit the source. Not true. (Fair Use Guidelines for Educational Multimedia)
6. By using their work in my own, I’m increasing their marketability, and therefore my use is fair. Not true!!! (Hoffman)

Conclusions

After a great deal of research, and learning more than I ever wanted to know about copyright law, I’ve come to some conclusions about this important issue. Most importantly, educators, specifically university faculty who are involved in the production of multimedia materials, cannot afford to be mystified or plead ignorance before the complexity of copyright law and the fair-use limitations to the exclusive rights of authors. "Ignorance of the law,…is no excuse. If you don’t know that you are infringing, you still will be liable for damages – only the amount of the award will be affected." (UT System)

From everything that I’ve read, every single source repeats that no one, including educators, is exempt from prosecution for copyright infringement. Every case is unique and depends on many factors that go beyond the simple notion that the use is for educational purposes. Furthermore, no use of copyrighted works can be determined beyond a shadow of a doubt to be fair in advance of a court decision. Thus the only recourse educators have is to make sure they are well-informed about the fair-use statute, including what it says and does not say, to dismiss long-held misconceptions about copyright and fair-use, and above all to consult and follow the Fair Use Guidelines for Educational Multimedia as well as any guidelines that their specific educational institution may have drafted to aid them in the legal use of copyrighted works to create multimedia for educational purposes.

If all of these things are done, then the educator should at least be eligible to use the good faith defense [17 USC 504(c)(2)] which states that a court may refuse to award damages for infringement if the user is found guilty but made a reasonable effort to make sure in advance that the use would be fair. Several sources have stated that following the guidelines mentioned would be a reasonable proof of the good faith defense. In the words of Linda K. Enghagen, "[A]ll we need to do to gain the protection of the exemption is to make an honest effort. That is not much to ask." I have to agree with her. Educators should consider themselves fortunate to have recourse to the fair-use statute and not to abuse it. She goes on to say however, "If no effort was made to determine whether a use is ‘fair,’ it is likely to be difficult to persuade a court that someone with a Ph.D. ‘honestly believed’ it was permissible." Thus it is the responsibility of educators to keep in the spirit of academic honesty and intellectual property and make an honest effort to learn about and follow the guidelines for proper use of copyrighted materials. If they do this, the true purpose of copyright will be fulfilled as the founding fathers intended it, the promotion and progress of science and arts.
 
 

How to Obtain Further Information on …

• A hypothetical analysis of the four-factors for fair-use determination: "Judicial Response: A Safe Harbor in the "Fair Use" Doctrine by Pamela R. O’Brien at http://www.bc.edu/bc_org/avp/law/st_org/iptf/articles/content/1998020201.html
• The history of copyright laws: "Redefining the Market Failure Approach to Fair Use in an Era of Copyright Permissions Systems" by Lydia Pallas Loren at http://www.lclark.edu/~loren/articles/fairuse.htm
• Examples of Fair-Use Cases and the court rulings: "Fair Use: Overview and Meaning for Higher Education" by CETUS at http://www.cetus.org/fair5.html
• How to Obtain Clearing Rights for using Copyrighted Works:

• For a chart that shows when works pass into the public domain:

• To view a Microsoft Powerpoint presentation entitled:

• To visit "Fair Use Harbor", an interactive pictorial representation of the fair use laws, visit: http://www.stfrancis.edu/cid/coprba/coprbay.htm
• For a list of copyright questions and answers:

Carpenter, Stacey. Fair Use in Multimedia: Digital Age Copyright.

<http://www.arl.org/newsltr/185/fairuse.html> 6/13/01

CETUS. Fair Use: Overview and Meaning for Higher Education.

<http://www.cetus.org/fair5.html> 7/23/2001

CIM. Copyright Resources on the Internet. <http://groton.k12.ct.us/mts/pt2a.htm>

6/13/01

Cyberspace and New Media Law Center. Multimedia Law and Business Handbook

Summary. <http://www.libraries.psu.edu/mtss/fairuse/dalziel.html> 6/13/01
 
 
 
 

Enghagen, Linda K. Copyright Law and Fair Use: Why Ignorance is Not Bliss? A Case

<http://www.id.ucsb.edu/detche/library/www/fairuse.html> 6/13/01

Hoffman, Ivan. Fair Use. <http://home.earthlink.net/~ivanlove/fair.html> 6/13/01

Hofstetter, Fred T. Multimedia Literacy. Third Ed. New York: McGraw-Hill Companies,

Inc. 20001

Loren, Lydia Pallas. Redefining the Market Failure Approach to Fair Use in an Era of

<http://www.templetons.com/brad/copymyths.html> 7/23/01

University System of Georgia. Regents Guide to Understanding Copyright and

<http://www.loc.gov/copyright/circs/circ1.html> 6/13/01

UT System¹. Fair Use of Copyrighted Materails.

<http://www.utsystem.edu/OGC/IntellectualProperty/copypol2.htm> 7/23/01

UT System². Clearing Rights for Multimedia Works.

<http://www.utsystem.edu/OGC/IntellectualProperty/multimed.htm> 6/13/01

Working Document 1/18/95. <http://arl.cni.org/scomm/copyright/uses.html> 6/13/01