Administrative Regulation 604.03A
Section 107 of the copyright law states that, “the fair use of a copyrighted work, including such use by reproduction in copies or photo records or by any other means specified by that section (106) for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research is not an infringement of copyright.”
CRITERIA OF FAIR USE
Section 107 lists the following four criteria for evaluating the fair use of copyrighted materials in an educational setting. They provide only general minimal standards and each situation must be decided on the basis of its own facts.
The purpose and character of the use, including whether such is of a commercial nature or is for nonprofit educational purposes. Fair use would probably allow teachers acting on their own to copy small portions of a work for the classroom, but would not allow a school system to do so.
The nature of the copyrighted work. Copying portions of a news article may fall under fair use, but copying from a workbook designed for a course of study would not.
The amount and substantiality of the portion used in relation to the copyrighted work as a whole. Copying the whole of a work cannot be considered fair use: copying a small portion may be.
The effect of the use upon the potential market for or value of the copyrighted work. If resulting economic loss to the copyright holder can be shown even making a single copy of certain materials is an infringement and making multiple copies presents the danger of greater penalties.
GUIDELINES FOR PRINT MATERIAL
1) A single copy may be made of any of the following by or for a teacher at his or her individual request for his or her scholarly research or use in teaching or preparation to teach a class:
a) A chapter from a book
b) An article from a periodical or newspaper
c) A short story, short essay or short poem
d) A chart, graph, diagram, drawing, cartoon or picture for a book, periodical, or newspaper.
2) Multiple copies (not to exceed one per pupil) may be made for the purpose of classroom use of discussion, provided that the copying meets the tests of brevity, spontaneity, and cumulative effect as defined below and must include a notice of copyright.
a) DEFINITION – BREVITY
i) Poetry: A complete poem if less than 250 words and if printed on not more than two pages, or, from a longer poem, an excerpt of not more than 250 words.
ii) Prose: Either a complete article, story or essay of less than 2,500 words, or an excerpt from any prose work of not more than 1,000 words or 10% of the work, whichever is less, but in any event a minimum of 500 words.
iii) Illustration: One chart, graph, diagram, drawing, cartoon, or picture per book or per periodical issue.
iv) Special works: Certain works in poetry, prose, or poetic prose which often combine language with illustrations and which are intended sometimes for children and at other times for a more general audience and fall short of 2,500 words in their entirety. Such special works may not be reproduced in their entirety. However, an excerpt comprising not more than two of the published pages of such special work and containing not more than 10% of the words in the text may be reproduced.
b) DEFINITION – SPONTANEITY
i) The copying is at the instance and inspiration of the individual teacher, and
ii) The inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission.
c) DEFINITION – CUMULATIVE EFFECT
i) The copying of the material is for only one course in the school in which the copies are made.
(Note: The limitations above do not apply to current news periodicals and newspapers and current news sections of other periodicals).
1) Copying shall not be used to create or to replace or substitute for anthologies, compilations or collective works.
2) There shall be no copying of or from works intended to be consumable in the course of study or of teaching. These include workbooks, exercises, standardized tests and test booklets, and answer sheets.
3) Copying shall not substitute for the purchase of books, publishers’ reprints, or periodicals.
4) Copying shall not be done on direction from a higher authority.
5) Copying the same item from term to term without securing permission shall not be done.
6) Multiple copying shall not occur more than nine times per course, per term.*
*Though not written into the guidelines, there was an understanding among the writers that by course is meant one semester or term of a given subject. In the case of an elementary school teacher who teaches several subjects, the teacher would be entitled to the nine instances of copying in each subject.
7) Copying shall be limited to one short work or two excerpts from one author’s works in any one term.
8) Employing a successful use of multiple copying developed by another teacher without securing permission from the copyright owner is not allowed.
9) Copying protected materials without inclusion of a notice of copyright is not allowed.
10) Making copies of music (or lyrics) for performance of any kind in the classroom or outside of it is not allowed, with the exception of the emergency exception noted under Music (#1) below.
11) No charge shall be made to a student beyond the actual cost of photocopying.
GUIDELINES FOR PRINTED MUSIC
1) Emergency copying to replace purchased copies which for some reason are not available for an imminent performance provided purchased replacement copies shall be substituted in due course are allowed.
2) For academic purposes other than performance, single or multiple copies of excerpts of works may be made provided that the excerpts do not comprise a part of the whole which would constitute a performable unit, i.e., a section, movement, or aria, but in no case more than 10% of the whole work. The number of copies shall not exceed one copy per pupil.
3) Printed copies which have been purchased may be edited or simplified provided that the fundamental character of the work is not distorted or the lyrics, if any, altered or added, if none exist.
4) For academic purposes other than performance, a single copy of an entire performable unit that is confirmed by the copyright holder to be out of print or unavailable except in a larger work, may be made by or for a teacher solely for the purpose of his or her scholarly research or in preparation to teach a class.
GUIDELINES FOR AUDIOVISUAL WORKS
Audiovisual works include slides, filmstrips, audio tapes and records, photographs, etc. Although the law does not specifically address itself to published items other than print, music, television and computer software, it is safe to assume that these items are protected. They fall under the four categories of fair use as listed earlier. Court decisions would take into account all four factors in determining violations. The following cases are intended as representative examples of duplication considered to be permissible or prohibited
1) Creating a series of slides from multiple sources, such as magazines, books, encyclopedias, etc., as long as one does not exceed 10% of the photographs in any one source, unless the source specifically prohibits any photographic reproduction.
2) Creating a single overhead transparency from a single page of a consumable workbook.
3) Creating multiple overhead transparencies from a variety of sources, not exceeding 10% of the total content of any one source, unless this type of reproduction is specifically prohibited.
4) Excerpting sections from a filmstrip to create slides, as long as one does not exceed 10% of the entire work or excerpt the very creative essence of the work.
5) Reproducing selective slides from a slide series as long as one does not exceed 10% of the entire production, excerpt the very creative essence of the work or violate a specific prohibition for this type of reproduction.
6) Excerpting sections of a 16mm film to be included in a locally produced videotape, not to exceed 10% of the whole and not excerpting the essence of the work.
7) Stories or excerpts of stories may be narrated on tape by teachers, parents or students and duplicated, as long as similar material is not available for sale.
8) It is permissible to duplicate visual or audio materials of a non-dramatic literary work in order to provide materials for the blind or deaf. In addition, these and other copyrighted materials may be legally transmitted to blind or deaf individuals via cable systems.
9) A single copy of recordings of performances by students may be made for evaluation or rehearsal purposes and may be retained by the educational institution or individual teacher.
1) No duplication of cassette tapes unless reproduction rights were given at time of purchase.
2) No reproduction of musical works (i.e. records) or conversion into another form for use (i.e. tapes).
3) No reproduction of an audio-visual work in its entirety.
4) No conversion of one media format into another, i.e., 16mm film to videotape. However, direct transmission of a 16mm film or other medium via a closed circuit, discrete cable system is permissible, as long as the material is not first converted to videotape.
UTILIZATION OF FREE-LOAN, RENTED OR PURCHASED MATERIALS
It is generally stipulated that materials acquired for use in educational institutions are for use in an instructional situation in a classroom where face-to-face teaching takes place. Thus, 16mm films, films on videotape and other format materials may not be shown purely for entertainment purposes, no matter whether they are acquired through free-loan, rental or purchases. They may only be used for entertainment purposes if the material or accompanying information specifically states permission to do so, or if an arrangement has been made with the item’s producer or distributor.
GUIDELINES FOR VIDEO RECORDINGS
Faculty and students of the Davenport Community Schools will abide by copyright restriction in utilizing video materials in the schools. Special license restrictions on the use of video materials shall also be observed. Permission for special types of usage may be requested by writing the producer/distributor, or by specifying types of usage when ordering materials. For example:
a) Acceptance of this purchase order indicates consent to use this material on a building-wide, closed circuit cable system.
b) Acceptance of this purchase order indicates consent to make one copy for archival purposes.
It is generally stipulated that materials acquired for use in educational institutions are for use in an instructional situation, in a classroom where face-to-face teaching takes place. Thus videotapes may be not shown purely for entertainment purposes, no matter whether they are acquired through off-air taping, free-loan, rental or purchase. They may only be used for entertainment purposes if the material or accompanying information specifically states permission to do so, or if an arrangement has been made with the item’s producer or distributor.
1) RECORDING COMMERCIAL TELEVISION PROGRAMS
a) A broadcast program may be recorded off-air and retained by a school for a period not to exceed 45 calendar days after the date of the recording. Upon conclusion of such retention period, the off-air recording and any copies must be erased at once.
b) An off-air recording may be used once by an individual teacher and repeated once during the first 10 consecutive school days in the 45 calendar day retention period. Such use must be made in the course of
face-to-face teaching activities in a classroom or similar place devoted to instruction.
c) After the first 10 consecutive school days, an off-air recording may be used up to the end of the 45 calendar day period only for teacher evaluation purposes.
d) Off-air recordings may be made only at the request of, and may only be used by, individual teachers and may not be regularly recorded in anticipation of requests.
e) No broadcast program may be recorded more than once at the request of a teacher, regardless of the number of times the program is broadcast.
f) Off-air recordings need not be used in their entirety, but the recorded programs may not be altered from their original content; neither may off-air recordings be physically or electronically combined or merged to constitute teaching anthologies or compilations.
2) RECORDING IOWA PUBLIC TELEVISION PROGRAMS
a) A teacher may record and use any of the programs aired on Iowa Public Television (IPT) during the instructional programming block, from 8:00 a.m. to 4:00 p.m., Monday through Friday, throughout the school year. Each program has its own individual use rights. See the IPT Instructional Television Schedule for use rights.
b) Programs taped from IPT during other hours are subject to the requirements set forth in “Recording Commercial Television Programs.”
3) RECORDING COMMUNITY CABLE PROGRAMS
a) Programs recorded from channels which are cable cast as part of the community cable’s basic package may be used in the classroom, as long as they meet the requirements set forth in “Recording Commercial Television Programs.”
b) Programs on channels which are cable cast as an option available to subscribers at an extra fee may not be recorded for use in the classroom.
4) PROGRAMS TAPED IN THE HOME
a) Programs recorded by staff or students at home may be used in the classroom as long as they meet the requirements set forth in “Recording Commercial Television Programs,” and in “Recording Community Cable Programs.”
5) PROGRAMS PURCHASED OR RENTED “FOR HOME USE.”
a) Video cassettes labeled “for home use only” may be used in schools if two conditions are met:
i) The program is related to the curriculum.
ii) The screening is conducted by a teacher or student in a classroom and face-to-face teaching occurs.
1) PURCHASE CONDITIONS
Most computer software purports to be licensed rather than sold. Frequently the package containing the software is wrapped in clear plastic through which legends similar to the following appear:
Read this agreement carefully. Use of this product constitutes your acceptance of the terms and conditions of this agreement.
While there is at present no case law concerning the validity of such agreements, one should assume that such licenses are in fact binding contracts. Therefore, by opening and using the software the library or classroom may become contractually bound by the terms of the agreement wholly apart from the rights granted the copyright owner under the copyright laws.
Following such legends are the terms and conditions of the license agreement. The terms vary greatly between software producers and sometimes between programs produced by the same producer. Many explicitly prohibit rental or lending; some limit the program to use on one identified computer or to one user’s personal use.
2) AVOIDING LICENSE RESTRICTIONS
Loans of software may violate the standard license terms imposed by the copyright owner. To avoid the inconsistencies between sale to a library and the standard license restriction, libraries will note on their purchase orders the intended use of software meant to circulate. Such a legend should read:
PURCHASE IS ORDERED FOR LIBRARY CIRCULATION AND PATRON USE
Then, if the order is filled, the library is in a good position to argue that its terms, rather than the standard license restrictions, apply.
3) LOANING SOFTWARE
a) Copyright notice placed on a software label will not be obscured.
b) An additional notice will be added by the library to assist copyright owners in preventing theft. It might read: SOFTWARE PROTECTED BY COPYRIGHT, 17 U.S.C. 101. UNAUTHORIZED COPYING IS PROHIBITED BY LAW.
4) BACKUP COPIES
a) One archival copy of a copyrighted program may lawfully be made under the following conditions:
i) One copy is made.
ii) The backup copy is stored.
iii) If possession of the original ceases to be lawful, the backup must be destroyed or transferred along with the original program.
iv) Copyright notice should appear on the copy.
v) It is important to note that if the software acquired is licensed for use, rather than owned outright, then one may not make an archival copy unless the terms of the license allows such duplication.
b) The original may be kept for archival purposes and the “backup copy” circulated. Only one copy – either the original or the backup – may be used or circulated at any given time.
5) IN-LIBRARY AND IN-CLASSROOM USE
a) License restrictions, if any, will be observed.
b) If only one program is owned under license, ordinarily it may only be used on one machine at a time.
c) Most licenses do not permit a single program to be loaded into a computer which can be accessed by several different terminals or into several computers for simultaneous use. There are not specific guidelines written into law for networking of computers. If one applies the FAIR USE criteria of the law, it is likely that networking software would be an infringement on the copyright unless specifically allowed under a licensing agreement.
d) If the machine is capable of being used by a patron to make a copy of a program, a warning will be posted on the machine.