Copyright & Fair Use

Talking notes from an iTeach (late 2013 or early 2014)
These materials are a slight modification to Chris Lott’s notes for iTeach

Here goes!

Hello, I’m Janene. This next section is on copyright and fair use. Chris and I will cover what you need to know in order to feel confident injecting materials into your courses.

The focus of this talk is largely what copyright is today and how you can understand the doctrine of fair use in order to best support your right to use specific materials in your course.

Many of you are familiar with copyright; but you may have misconceptions. Plus, copyright laws have changed over the years. Today, unless otherwise stated, copyright applies to any “original work of authorship’ as soon as it is captured in a “fixed, tangible’ form. You don’t need to affix the copyright symbol; you don’t need to register with the copyright office.

What does original work of authorship mean? What does copyright cover? Works include books, articles, stories, poems, paintings, video games, computer programs, architectural works, recipes, knitting patterns. IF it has been recorded in some way that can be seen by others it is covered.

There are exceptions: titles, names, slogans, short phrases are not covered by copyright — you can Trademark these. Works that have not been “fixed’ written down or recorded are not copyrighted. Your original off the cuff comedy routine in the park can be stolen. Ideas and facts, common knowledge cannot be copyrighted. Items in the public domain are not covered.

Copyright protects works for a varying length of time — I’m going to show you the Digital Copyright Slider which will help you understand if something you want to use in your digital classroom is covered by copyright. Keep in mind, however, even if it is copyrighted you may still use it under the Fair Use guidelines. The reading for Copyright and Fair Use on the iTeach website has a nice summary of copyright including excellent links to follow to find out more.

Show the slider and give the following examples:

  • Before 1923,
  • between 1964-1977 published with © notice,
  • published after 2002

Public Domain
I went to Wikipedia to read about the public domain. It is comprised of copyright-free works.
The public domain is generally defined as the sum of works that are not copyrighted. They were not eligible for copyright in the first place, or the copyright expired, or the copyright holder released the work into the public domain.
Of course you can succeed at what you wish to do, which is use parts of materials to craft understanding in your students by using materials that exist in the Public Domain. Keep in mind that when we are discussing the public domain we mean in the US; other countries laws differ.
Fair Use Doctrine
Let’s discuss the four factors that make up the Fair Use doctrine. These guidelines will help you determine how to utilize copyrighted materials in your course.

The guidelines known as the four factors are:

1. The purpose and character of the use
2. The nature of the work being used
3. The amount and substance of the work being used
4. The effect of the use on real or potential market value

I’ll go over each of these and explain how you can reduce your risk of exposure while focusing your use of materials so that the point you are developing in your course is best supported. Keep in mind as I cover these four factors that each is a spectrum, {{MOVES HANDS FROM LEFT TO RIGHT}} a sliding scale {{BIG GESTURE ON LEFT and BIG ON RIGHT}} NOT right or wrong.

1. The purpose and character of the use
Think about that sliding scale on one side is weak support the other is strong support: if your purpose in using the materials is to profit your support may be weak while if you are using the materials for non-commercial purposes–IE to illustrate an point for your students your support under the first factor is stronger. If the character of the work is exactly as copyrighted your support is weaker, but if you have transformed it to create something new this is considered a “derivative’ work and your support is stronger. Keep in mind that all the guidelines work together–so even if you only use a small portion of a work in your work (making a derivative work) you could still be exposed to risk.

2. The nature of the work being used
Again think of the sliding scale. If a work is creative–a song, a story, a painting your support may be weak. However if that work is factual: a dictionary entry, paragraphs from a non-fiction book your support is stronger.

3. The amount and substance of the work being used
Since you are using these materials in your class to facilitate your students’ grasp of ‘big ideas’ you may not need to use much or all of the work.

Let’s go back to the sliding scale: if you are using the whole work your support may be weak while using a snippet or a quote works in your favor. Keep in mind, however, that even the smallest amount if it is the heart of the work, could be copyright infringement.

Who knows “Under Pressure’ by Queen? Perhaps this will sound familiar: it is “Ice, Ice Baby’ by Vanilla Ice. Since he used the most recognizable portion of the song, the heart of the song and he used it as his refrain–the catch in his song–he paid for infringing on copyright. Of course he was using the materials for profit.

4. The effect of the use on real or potential market value
If you are copying a chapter of a book that the students should buy and they are not buying it because you are providing it, you support is weak. If you decide to make a video where you show pictures of people’s paintings and you add your spoken notes about the work, as an example of good use of shading in your art class. You can zoom in on parts of the drawing… using only part of the copyrighted work. You would not impact the potential sale of the original work therefor your support under guideline number 4 is stronger.

If, however, your work negatively affects the real or potential sale of the original work or a work that the original is part of your support is lessened.

Does this sound complicated? It doesn’t have to be. Keep these things in mind: Fair Use isn’t really complicated; the doctrine is purposefully vague so it allows for broad exercise in fair use. There are many uses that are well established as fair and don’t take much thought: quoting a few lines of a poem, including a short poem of 20 lines or less, quoting lines from articles, using selected paragraphs from books.

This discussion should encourage you to use pieces of copyrighted materials–but if you are not ready, you can look into Creative Commons in order to inject materials into your digital classroom.

Creative Commons is an organization whose mission is to create and promote a range of easy-to-implement licenses that work alongside copyright. These licenses make it very clear what you can do with the work covered. Look for materials that allow you to use them. Also, please be generous with your works–the materials you create–like Khan Academy videos (you’ll see later in the week) might be useful to others.

With a Creative Commons license, you keep your copyright but allow people to copy and distribute your work provided they give you credit – and only on the conditions you specify.

Khan Academy materials are licensed with the Creative Commons non-commercial share-alike license (

NonCommercial-ShareAlike This license lets others remix, tweak, and build upon your work non-commercially, as long as they credit you and license their new creations under the identical terms.

Call to action…
When you look for elements to make something with or to use parts of consider items in the public domain, those covered by creative commons or materials that are copyrighted, just keep fair use in mind. If your purpose is to increase your student’s understanding of a specific subject matter you will do well!