Exceptions to the rights of the copyright holder

Sections 107-122 of Title 17 carefully delineate a number of situations in which the rights of the copyright holder are trumped by the rights of a user of the copyrighted medium. For example, one can perform some copyrighted works as part of a church service, or at a free or charitable fund-raising event, or at an agricultural fair, or as background music in stores or restaurants, etc.

Of these, the ones most often invoked in teaching are Fair Use and Educational Use. These two exceptions are both used a lot in teaching but are not identical.

Fair Use: using a small part of the work

Short version: Using literary excerpts and short audio or video clips for a broadly-defined "educational purpose" is allowed. The Fair Use Evaluator at Copyright Advisory Network may be helpful in deciding on a particular case.

Fair use is outlined in Section 107 of Title 17. Fair use allows citizens to excerpt a small portion of a copyrighted work for various purposes, such as "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research." Whether the use is legal or not depends on a balance of the following Four Factors:

  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.

Thus "Fair Use" is a broad category. It includes all kinds of uses of material--quotations, incidental display or use of copyrighted material, detailed plot summary, and so on.

Each possible example of Fair Use must be evaluated in terms of all four factors. A use which might be clearly legitimate in a nonprofit educational setting might require permission (and payment of royalties) in a commercial work (Factor 1). The use of a creative work (like The Simpsons or a pop song) favors the rights holder, while quoting informative or educational material is more likely to be Fair Use (Factor 2).The use of a small amount of material might be acceptable when using a larger portion would not (Factor 3). The use of a work for which there appears to be no commercial market can be defended, whereas using a work which is immensely popular and makes a lot of money on sales infringes on the market value. In every example, some factors will probably favor the user and others the rights holder; how they balance determines the legality of the situation.

In 1976, a committee drew up an "Agreement On Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with Respect to Books and Periodicals," specifying amounts that seemed to fit Factor 3. These guidelines were referred to in the 1991 Kinko's Case, which involved the creation of coursepacks using excerpts from various books, and the similar 1996 Michigan Documents case. However, Judge Evans in the 2012 Georgia State case considered these guidelines inadequate, and formulated different ones (see below).

Transformative use. Sometimes the "purpose and character" of the use is transformative--for example, if a video shows a group of people watching an episode of The Simpsons on TV, or listening to a particular song as they ride in a car, the cartoon or music is being subsumed into a new artistic whole and its meaning changes. Parodies and homages may be highly transformative. Many YouTube videos consist entirely of a transformation of second-hand visual and auditory materials (editing images from a favorite TV series to fit an unrelated pop song, for example). In general, the more transformative the use, the more strongly Factor 1 weighs in favor of Fair Use.

However, in education, usually excerpts are not transformed but are meant to refer to the original context; this is the norm in language classes where one is studying authentic materials.It has been suggested that all educational use of popular media (whose original purpose is to entertain), is in fact transformative. The judge in the Georgia State case addressed the question of using untransformed educational materials in education (see below).

Educational Use: the classroom

Short version: teachers can do almost anything they need to do during a scheduled class period. The Copyright Advisory Network offers an Exceptions for Instructors eTool that might help in justifying an individual case.

Educational use of an entire work (such as a movie, a recording of a symphony, etc.) is covered in Section 110 (1) of Title 17, along with some other situations in which using an entire work is considered non-infringing. However, "educational use" is carefully defined.

The law makes an exception for "performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of an accredited nonprofit educational institution, in a classroom or similar place devoted to instruction," provided the copy of the work used is legal or at least not obviously illegal.

This right was probably extended by the TEACH act of 2002, which addressed digital works in distance learning situations and was inserted into the copyright law as Section 110 (2). However, TEACH is clearly more restrictive in its details.

It is worth noting that in both the UCLA case, involving video streaming for students, and the Georgia State case, involving digitizing of print materials for students, the language of Section 110 was not invoked. The defendants (and, in the Georgia State case, the judge) concentrated on Section 107, Fair Use, instead.

"Institutional licensing." Section 110a allows displaying an entire film during a class period. This is exceptional and is not considered fair use in other countries (for example, in Canada). Some vendors of "educational" DVDs have a two-tiered price system; individuals can purchase the DVD at a normal price, but must waive the right to to use it in the classroom and other rights. Educational institutions pay a much higher "institutional price" (usually more than 10x the price of the individual copy) which includes "Educational PPR." Nevertheless, if a copy can be legally acquired for a smaller price it can be shown in a classroom. To have legal weight, the purchase contract must include an agreement by the purchaser to waive the legal right to showing the film in the classroom.

The Georgia State case

In May 2012, the Georgia State case saw Judge Orinda D. Evans considering the rights of academic publishers in the digital presentation of their books for university students in a course-management-system situation (i.e. only students in the classes for which the materials were assigned could access the copied materials). For each proposed infringement, she weighed each of the Four Factors and balanced them.

In every case, however, she was clear that Factor 1 weighed strongly in favor of the defendants (Georgia State), because the purpose was nonprofit educational activities. In every case, Factor 2 weighed in favor of the defendents, because the material copied was from academic discussions of the topic, and so was "informational and educational." The publishers argued that the non-transformative nature of the use should turn Factor 2 in their favor, but the judge disagreed: the use of educational materials in education is exactly what the law favors.

That left Factors 3 and 4. If both 3 and 4 favored the publishers, and one of them strongly favored the publishers (thus balancing Factors 1 and 2 in favor of the defendants), the publishers won. If not--if only one of the two factors favored the publishers, or both favored them weakly--the library was considered to have made fair use of the books.

Factor 3, the amount of the work allowed, has long seemed the most problematical. On the one hand, it is desirable to have a safe harbor, an amount that can always be considered above reproach. On the other, educators don't like to see a bright line that prevents them from using more than a given percentage or amount. In the Georgia State case, Judge Evans determined the following to be "distinctly small" amounts in the context:

A book which is a collection of essays by various people is included in these strictures--even if the "chapters" are by different people, one chapter can be used (or 10% if the book has fewer than 10 chapters). It's not clear how this would apply to media items such as a music album or movie, but certainly "10% for nonprofit educational purposes" might be considered defensible in the near future.

As for Factor 4, in her consideration of possible infringements in the Georgia State case, Judge Evans considered "the potential market" for each proposed infringement. In every case, she decided that students would not have bought an expensive book in order to read the excerpts assigned, so the market for the book itself was not affected. However, the market for the right to digitize and display the excerpts was affected. The publishers had to show in each case that they were indeed marketing and profiting from these rights. If it was reasonably easy to locate a website which offered the rights at a fair price, then this factor weighed strongly in favor of the plaintiffs (the publishers).

Judge Evans levaluated 74 different excerpts individually, to determine the balance. Only 5 of the 74 examples she analyzed were balanced in such a way that the publishers could in principle claim a payment.

Special case: taped broadcast programming

Short version: you can only use taped-from-TV material in the classroom if it was recently taped. A taped-off-TV copy is not a legal copy.

With the advent of the VCR, there was a period when it was common for teachers, and in fact just about everybody, to copy television broadcasts. In the 1984 Betamax case, Universal Studios sued Sony for making equipment that could be used to copy TV broadcasts of films at home. The ruling was that it is not an infringement of copyright to tape a program for later viewing. The result, of course, was that people compiled libraries of VHS tapes of their favorite broadcasts.

TIVO and other such approved digital recorders, unlike VCRs, allow time-shifting but do not allow the compilation of a mobile library--or even a single mobile recording--of a TV program. It is possible to capture television programs using software but it is somewhat labor-intensive.

During the golden age of the VCR, the use of taped material in the classroom threatened the marketing (and therefore the production in the first place) of educational materials, which were usually sold to broadcasters and then marketed to schools. The result was the Kastenmeier Guidelines, which offered rules both to institutions engaged in taping on demand and to teachers who wanted to use taped materials for teaching.

The most important of these guidelines were that the recording must be used in class within 10 days of taping or not at all. After that, the institution could retain the recording for another 35 days for teacher evaluation, to determine whether or not to purchase a legal copy. 45 days after taping, the tape should be erased.

If an instructor has a personal copy of an important program from TV and wishes to use it for teaching, the instructor should be told that this is not a legal copy. The first recourse should be to try to replace that copy with a purchased copy.