Clarification on Copyright Issues for Educators by Wesley Fryer I have received numerous emails regarding my article, "Copyright 101 For Educators: Winter 2003." This article has been published in print in the TechEdge and online by Technology and Learning magazine. Here are some of the questions readers have asked and answers I have offered. Remember, I am NOT a lawyer, but my answers do reflect input and opinions from intellectual property law specialists. For specific legal advice, you should consult legal counsel. In the duplicated email questions and replies posted below, reader questions and comments are indented and in italics. 13 Jan 2003 Question 1: I have received numerous emails from people after they have read the article in the TechEdge. I am so sorry that I never had time to really research this until now (and still have little time), but did read the DMCA act and found on page six the attached statement which seems to say that Fair Use was not effected. I didn't find an instance of "bright-line". Can you tell me where it is mentioned in the act? I was on a national telecast last February with several real experts on copyright and they were still citing the Guidelines as guidelines - not the law. You mention that other guidelines are available but there was no reference as to where these guidelines are. Could you share that with me? I didn't find them on Mr. Cochran's home page. The site at the University of Maryland University is referring to the Fairuse Guidelines for Multimedia. I am afraid there are some confused people out there. Can you help clarify? Thanks so much. My Answer: Thanks for your message. I was pretty sure this article would be a high profile one, so that is why I have solicited more input that usual on it. Wes Cochran's comment about not having any "bright line" rules about copyright I think refers to the fact that the fair use guidelines are just that, guidelines, but they are NOT used in courts of law to make a determination of fair use. I think that is why he told us in April to not use that document when trying to reach a decision about whether a particular use of content (multimedia or not) would be considered "fair use." The courts use the Copyright Act of 1976, not the "Guidelines for Educational Use of Multimedia" document, so I think his recommendation was to use the document the courts use. One of the reasons for this is that courts have held in certain cases that using 100% of a document or work CAN be fair use. This would not be the case under the portion limitations/restrictions of the 1996 document. I will get more clarification from Mr Cochran on this and pass along any information I learn. Technology and Learning Magazine may publish this article in their May print edition (or a revised version of it), so I am anxious to get corrections made if needed or additional clarifications added. The term "bright line" was used by Mr Cochran in his presentation to TTU faculty, I don't think it is a term that appears in the DMCA. Reply from same reader: I, too, have been investigating this issue with some national "experts" and their consensus is that the Fairuse Guidelines for Multimedia are still in effect as guidelines. They have never been law. Those signees of the guidelines, as listed in Appendix A and Appendix B, are quite authoratative. One of the issues on which most agree is that the Fairuse Guidelines for Multimedia are not valid when creating web pages as educators are no longer in the classroom teaching, but out in the world. I think educators need guidelines more specific that listed in Section 107 of the Copyright Law. Again, these are just guidelines but do serve a purpose. I think it is important to use a collective pool of opinion, and not just one. 23 Jan 2003 Question 2: I read with interet your article "Copyright 101 for Educators Winter 2003." Information about "Bright line" guidelines was new to me; I have been using the Copyright Guidelines in my workshops with librarians and teachers in Region VII. Based on your article, I will quickly be making changes to my ppt's and handouts. On February 21, I will be making a short presentation on copyright to a group of Region VII librarians. I emailed Kathy Sargeant at TCEA. She responded giving me permission to reproduce your article. I would appreciate your permission also. And is a ppt or an outline of the presentation Wes Cochran made at Tech last April on the web? My Answer: Yes, you certainly have my permission to copy/use my article, good luck with your presentations. Wes Cochran's powerpoint from the April 2002 presentation is not available online as far as I know. I hope to visit with him again in the upcoming weeks to get some clarification on some of these copyright issues, and I will ask if one could be made available. I have been receiving quite a few emails about this article, I know that the position Cochran articulated about not following the CCUMC Fair Use Guidelines has been questioned by many. My understanding at this point is that Courts of law, in determining fair use, have reached rulings which are against the Fair Use Guidelines. For example, in some cases use of 100% of a work has been determined "fair use," based on other considerations besides just the portion used. Because the courts don't use the CCUMC guidelines as their benchmark / litmus test for fair use, Cochran (I think appropriately) encourages educators to not use them either. Instead, we should use the same guidelines specified in the 76 Copyright Act that the Court uses. I need to get more detail on how the DMCA specifically discourages / prohibits use of "bright line" guidelines. The term "bright line" I think was termed by Cochran to describe the sort of guidelines included in the CCUMC document. I do not think the specific term "bright line" appears in the text of the DMCA, but again, I am seeking further clarification on this. 4 June 2003 Question 3: I was very interested to know that the guidelines in the 1996 law were no longer all valid. I am a bit confused however, because when I followed your suggested link to the University of Maryland site, it seemed that their site was still listing some of the 1996 guidelines as usable (near end of article.) Am I mistaken? Maybe the guidelines in that article don't come from the 1996 guidelines. Any help you can give me in clarifying this would be most welcome! I am in the process of building a presentation for teachers and students to be used at the beginning of the school year all over our district. The last thing I want to do is include erroneous material. My Answer: Thanks for your question on my recent copyright article for educators. The recommendation that the 1996 guidelines are no longer valid is the opinion of Professor Wes Cochran of the Texas Tech Law school and others. The 1996 guidelines are not law, they were drawn up at the time as a way to provide bright line rules for educators and students with regard to copyright. The problem is, brightline rules do not exist. The 1976 copyright act provides 4 areas which must be considered to determine fair use, and this is still the law. Courts have ruled in some cases that use of 100% of a given multimedia element can be fair use, when weighed in light of other factors, especially distribution of the content (if it is limited and therefore the potential market impact is less.) For many years educators have operated like the 1996 guidelines for fair use were “gospel,” when in fact they are just conservative suggestions that do not in fact offer precise legal boundaries. Teachers can still use the guidelines (and in fact are still encouraged to do so in many places, like Intel Teach To the Future training nationwide)-- but they should understand that these guidelines are not BRIGHT LINE rules. In the area of distance education and web publication in particular, it is important to realize the different copyright implications of using multimedia for a course and password protecting it, or not. The fair use finding can change dramatically when web publication is involved. I hope this clarification is helpful, I have received some similar email responses to the article. I too, was very surprised to learn that the 1996 guidelines were not the gospel for educator copyright education. In education as elsewhere, we often want black and white answers, and unfortunately in the area of copyright law (probably because lawyers continue to write the rules and keep things confusing so they all have plenty of business) there are many shades of gray. The main point of my article is that educators should look at the 1976 Copyright Act itself instead of just the 1996 guidelines, because that is what the courts actually do and they are the ones who ultimately determine legal compliance.     <-- Back to "Intellectual Property" Tools and Techniques Tools for the TEKS home | Article Archive | Technology Workshops Mailing List | Feedback | Tools and Techniques | Technology Idea Exchange Contact me using this webform. Links to my blogs are also available. This work is licensed under a Creative Commons License.