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There is a common misconception that if something is on the Web, then it's up for grabs. This idea originates from a combination of the technology that facilitates copying and the idea that if someone put the information on the Web, then he or she must not mind if it's appropriated. Copyright is granted to the creator of a work the moment it is "fixed in a tangible medium." Though the computer bits and bytes that compose a Web page hardly seem tangible, copyright is granted to Web authors upon creation of a page. A page needn't have a copyright notice in order to be protected by copyright law. The inclusion of a copyright notice and registration with the United States Copyright Office increases the legal ramifications should a copyright violation occur, but the rights granted under copyright law apply to a work the moment it is created, notice or no notice. This means that in most cases, when you copy and reuse materials downloaded from the Web, you infringe on the rights of the page author. It is true that often people put materials on the Web without restriction, but unless it is explicitly stated otherwise, you must assume that the materials are protected. Likewise, unauthorized use of copyrighted materials from other media, such as images from a book or video segments from a film, on your Web page is likely to be an infringement.
Educators are starting to chafe under the limits imposed by the current copyright policy. When teaching took place primarily in a controlled environment in the classroom, instructors could use copyrighted materials and meet (at least somewhat) the criteria defined in the fair use doctrine. When using copyrighted materials in online teaching, the environment is harder to control: use of the materials is harder to measure and control, and the visibility is far greater than in a classroom setting (that is, it's easier to get caught). Also, given people's ability to integrate content from different media into a single presentation and deliver it over the global network, educators who are using the Web want more access to materials, not a more restricted environment. Just as the advent of the photocopier forced changes to copyright policy, the growing use of the Internet and the Web requires that policymakers revisit copyright and fair use and revise the policy to enable teaching on the Web.
Fair use
Just as the rights of the creator of a work are protected by copyright, the rights of free speech and public interest are protected by the fair use doctrine, and these public rights outweigh those of the creator. The fair use doctrine is intended to serve the public good by promoting such activities as education, criticism, research, and scholarship. But even under fair use, the rights of the creator are protected by the narrowly defined criteria and tests outlined in the fair use doctrine. The definition protects the creator by ensuring that the quantity of the work used is negligible, and thus of little adverse effect to the market for the work, and that, whenever possible, permission of the creator is sought.
Four factors define fair use:
- Purpose. Materials used on an academic Web site are more likely to meet this criterion than materials used on a commercial site, because the use is instructional and not for profit.
- Nature of the work. Use of works that were developed for research or scholarly use is more likely to meet this criterion than works created for commercial purposes. The measure of this criterion has much to do with the expectations of the author: a professional photographer expects remuneration for use of his or her work, whereas scholars expect their work to be used for educational purposes.
- Amount and substantiality. This criterion refers to both the amount — length, duration — and the qualitative measure of the materials used in relation to the whole. Even when the portion is brief — for example, the four-note theme from Beethoven's Fifth Symphony — if it is the basis of the work, then its use is not considered fair.
- Market effect. In order to meet this criterion, the use has to have little or no effect on the creator's ability to make money from the work. For example, posting entire chapters of a text on the Web is not fair because it may reduce the author's potential market.
In addition, there are three "tests" to help define educational fair use:
- Brevity. Specific amounts or relative portions of a work can be used for education purposes without seeking permission from the copyright holder.
- Spontaneity. In some instances, the decision to use a copyrighted work may come too late to get permission before using the materials. The spontaneity test is difficult to pass for Web-based content. Although timely posting of materials may be necessary to maximize their use, if the materials remain online, the use is no longer spontaneous, and permission must be sought.
- Cumulative effect. This test limits the number of times a work can be used without seeking permission from the creator. This is because, even if the quantity used is small, repeated use may harm the market for the work.
| Type of materials | Amount |
|---|---|
| Excerpted prose | 1,000 words or 10% |
| Complete prose | 2,500 words |
| Poetry | Complete poem if less than 250 words and if printed on not more than two pages 250-word excerpt from a longer poem |
| Illustration | One per book or periodical issue |
| Music | Excerpts of no more than 10% of a complete work, provided that they do not constitute a "performable" unit |
| Notes | |
| |
Last, there are the Fair Use Guidelines for Educational Multimedia, an interpretation of the fair use doctrine written to help educators and students act responsibly when creating multimedia projects for educational purposes. These guidelines offer more specific limits as to how much of a work can be used, under what circumstances, and for how long. The online use of copyrighted materials enabled by these guidelines effectively parallels classroom use by requiring that access to the materials be limited to classroom participants, and also limiting the length of time the materials can remain online. Though their use may mean toning down your objectives — most notably, you cannot allow non-class members to view the site, and the materials cannot stay online indefinitely — you can probably justify some unauthorized use of copyrighted materials on your course site by following these guidelines.
| Type of materials | Amount |
|---|---|
| Text | 10% or 1,000 words |
| Images | No more than five works from any one artist |
| Music | 10% or 30 seconds |
| Motion media | 10% or three minutes |
| Database tables | 10% or 2,500 fields or cell entries |
| Notes | |
| |
Most of the copyrighted materials you currently use in the classroom without permission may meet the criteria and pass the tests defined above. Or the use may not be public enough to gain notice. In publishing a course Web site, however, you are making your classroom materials available for public use: the dissemination is broader, and the potential effect on the creator is greater, as are your chances of getting caught. Posting content on the Web is also more complex and time-consuming than photocopying a four-page journal article for classroom use. In the time it takes to fashion the materials for the Web, you could solicit permission from the copyright holder. Your safest bet is to show a "good faith" effort by always seeking permission, even if you post the materials before you receive a response.
The fair use doctrine has always been a subjective measure, balancing what is fair for the public against what is fair for the creator of a work. In the traditional classroom, educators have puzzled over fair use when using materials in class, creating copies of materials for classroom use, and distributing copies to students for their coursework. Now that many classroom transactions take place in the global medium of the Web, it is even harder to determine what is fair. Even the meaning of a copy is confusing on the Web: Every time a user requests a document from the Web server, are they making a copy? When you put copyrighted materials on your site, are you permitting multiple copies to be made?
Many institutions have evolved internal policies and guidelines based on an interpretation of the current law to help answer questions about what an instructor can and cannot use on an instructional Web site. Ask your institution's legal office for guidance regarding Web-based educational materials and the fair use doctrine.
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From Web Teaching Guide
Copyright 2000 Sarah Horton
Added: 15 Feb 2001