• The institution involved in the transmission must have implemented policies related to copyright that at a minimum inform students that certain course materials may be copyrighted and further use of such materials is prohibited. • To the extent possible, technological protection must be applied to the digital transmission to prevent the ability to copy, redistributed, modify or otherwise use the copyrighted materials outside of the educational purpose. The TEACH Act does not cover supplemental online reading, viewing, or listening materials. c. Fair Use Fair Use (17 U.S.C. § 107) is the most commonly relied upon exception for the use copyrighted materials without obtaining permission. However, while fair use is more common in educational settings, not all academic use qualifies as fair use. Generally, fair use permits the use of a copyrighted work "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research…" The four key factors used to determine whether use of a work qualifies as “fair use” are: 1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; Activities limited to the support of educational efforts are more likely to qualify as fair use. Uses that are "transformative" in nature are more likely fair use. To be transformative, the use must add or change the original work in a way that gives it new expression, meaning or message. Incorporating quotations into a paper or pieces of a work mixed into a multi-media product for teaching are usually transformative in nature. Criticism or critical analysis of a work also tends to favor fair use. 2. The nature of the copyrighted work – fiction or factual or a combination; Works that are unpublished are less likely to qualify as fair use. Excerpts of informational and factual works for educational purposes are more likely to qualify as fair use. Use of materials such as test forms or workbook pages that are intended to be used and repurchased are less likely to qualify as fair use. 3. The amount and substantiality of the portion of the work used in relation to the copyrighted work as a whole; and The amount of the work is analyzed both quantitatively and qualitatively. There is not a hard and fast line for the portion of the work that may be used, but the portion of the work to be used should be narrowly tailored to meet the educational purpose. 4. The effect of the use upon the potential market for, or value of, the copyrighted work. The impact on the value of the work is closely linked to the purpose of the use, and considers whether the use impacts the creator's ability to make a living from the work. If the work is being used for a commercial purpose, any adverse effect on the creator's ability to earn money from the work weighs against fair use. Producing copies of an entire work to save money for students is almost never a fair use. Similarly, if a digital, academic license for excerpts is available for a reasonable price, then use of the excerpt is likely not a fair use. All four factors must be considered to determine whether each use is a fair use. Each factor is given equal weight. The goal is to achieve a balance between the rights of the copyright holder with the
21
Made with FlippingBook - PDF hosting