Title 17 of the United States Code, also known as the Copyright Law of the United States, delineates the rights of the owner of the copyrights, the responsibilities of those who choose to use copyrighted material and penalties for infringement. The complete document may be viewed at http://www.copyright.gov/title17/. Originally passed in 1976, this law has been amended over the years to reflect the new forms in which works are produced and protected such as digital creations, video creations, audio creations, satellite creations, etc. Interpretations of certain sections of the law are entered in italics.
Four Factors of Fair Use The Fair-Use Statute, Section 107 includes four factors for evaluation to determine if something falls under an allowed “fair use.” The statute is broad on purpose to allow for interpretation and flexibility:
The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes (“educational purposes” can sometimes, but not always, be a strong factor that allows copying to qualify under fair use guidelines)
The nature of the copyrighted work (a compilation of facts is more likely to constitute fair use, rather than a copyrighted song).
The amount and substantiality of the portion used in relation to the copyrighted work as a whole (the smaller the amount copied, the more likely that it will be allowed under fair use).
The effect of the use upon the potential market for or value of the copyrighted work (content considered to have low market value may be a better candidate for fair use).
And the section concludes: “The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”
All four factors of the law must be met in order to satisfy the requirements of Fair Use. If all four factors are not met, an individual or school may write directly to the owner of the copyrighted material to obtain permission.
CHECKLIST FOR FAIR USE
PURPOSE Favoring Fair Use Opposing Fair Use - Teaching (including multiple copies for classroom use) - Commercial activity - Research - Profiting from the use - Scholarship - Entertainment - Nonprofit Educational Institution - Bad-faith behavior - Criticism - Denying credit to original author - Comment - News reporting - Transformative or Productive use (changes the work for new utility) - Restricted access (to students or other appropriate group) - Parody
NATURE Favoring Fair Use Opposing Fair Use - Published work - Unpublished work - Factual or nonfiction based - Highly creative work (art, music, novels, films, plays) - Important to favored educational objectives - Fiction
AMOUNT Favoring Fair Use Opposing Fair Use - Small quantity - Large portion or whole work used - Portion used is not central - Portion used is central to work or significant to entire work or "heart of the work" - Amount is appropriate for favored educational purpose
EFFECT Favoring Fair UseOpposing Fair Use - User owns lawfully acquired - Could replace sale of copyrighted work or purchased copy of original work - Significantly impairs market or potential - One or few copies made market for copyrighted work or derivative - No significant effect on the market or potential - Reasonably available licensing mechanism market for copyrighted work for use of the copyrighted work - No similar product marketed by copyright holder - Affordable permission available for using work - Lack of licensing mechanism - Numerous copies made - You made it accessible on Web or in other public form - Repeated or long-term use
This document is provided as a courtesy of the Copyright Management Center, IUPUI, 530 W. New York St., Indianapolis, IN 46202. For further information and updates please visit http://www.copyright.iupui.edu/.
Music Copyright in Schools The United States Copyright Law: A Guide for Music Educators http://www.menc.org/resources/view/united-states-copyright-law-a-guide-for-music-educators summarizes copyright law for music teachers. As regards sheet music, all teachers should be aware of the following: Teachers may: • Make a copy for a performance only in an emergency and when the copy is to be replaced by a purchased copy • Make a classroom set of up to 10% of a musical work, but only if that does not constitute a performable unit. • Display a legally owned copy of a musical piece by means of an opaque projector Teachers may not: • Copy to avoid purchase • Create anthologies • Display a legally owned copy of a musical piece by creating a transparency, slide, or filmstrip Teachers must • Include a copyright notice on any copy that is made
Audio Visual Copyright in Schools(videos, VHS tapes, Laser discs, DVDs, etc.) Performance & display (Fair Use) - To constitute fair use the audio visual must be used in a face-to-face teaching situation only and satisfy both conditions; a. The performance of the AV work must meet the instructional objective b. The AV work must be a “lawfully made” copy For use in Projects (Fair Use) a.10% or 3 minutes (whichever is less) b. must be a lawfully acquire c. credit the source d .state that certain works have been used under the fair use exception of the U.S. Copyright Law
Copyright and New Technologies The Internet and freeware are NOT public domain. The Copyright Act of 1976 fair use guidelines do not address many new technologies. To date there has been no consensus over rights in this area. Posting copyrighted material to your website carries greater liability because now the information is accessible to all.
Fair Use as it applies to instructor and student project use a. Only for the course for which they were made b. Portfolios to show examples of the student’s work c. Job interviews, graduate school interviews, tenure review d. Presentation at peer workshops or conferences
Items not protected by copyright: URL Blank forms Short phrases Names Titles Ideas Works in the public domain i.e., works created by the U.S. Government http://www.copyright.iupui.edu/.