You can’t afford to ignore the law, but neither can you afford to overlook the needs of your students. The good news for educators heading into a new millennium is that abiding by–and helping to shape–fair use copyright principles and guidelines is really not that difficult. For help, read on. Is it legal for students to use copyrighted clips from videos, CDs, or the Internet to create multimedia reports? Can they save these into digital portfolios or post them on a school Web site? Does it violate copyright law for teachers to show this student work at educational conferences?
These are the sorts of questions that abound in technology-rich schools today. While some educators set poor examples by blatantly ignoring the law, many others find themselves paralyzed by all the uncertainties. This is unfortunate, since a thorough knowledge of “fair use” as it has been interpreted over the years is all that is needed to answer many of the most common questions related to multimedia today.

In those gray or controversial areas in which legal precedents have not yet been set, common sense and a willingness to blaze new and ethical trails may be your best guides. In fact, there exists the opportunity for educators knowledgeable in copyright law to stake out reasonable uses that will help ensure an enlightened legal digital age for teachers in the new millennium. Understanding Fair Use

Those of you using technology for instruction may be pleasantly surprised at what is legal and ethical. This is because of fair use–the great legislative hall pass given by government to educators (and others involved in education or criticism) in section 107 of Title 17 of the 1976 Copyright Act. Under certain circumstances, this pass allows teachers to navigate safely through the corridors of copyright protection. The pass is powerful but valid only in places dedicated to instruction.

The Digital Millennium Copyright Act signed into law in October of 1998 updated aspects of copyright law. It did not, however, change the basic concept of fair use. Courts judge fair use cases based on the so-called four factors. These are: the purpose of the use, the nature of the work, the portion used, and the effect on the market. The intent of section 107 is clear, but the details–how much is too much to use, for example–were never defined in the law. Over the years, however, a number of groups have convened to draw up guidelines for users. Perhaps the best known are the guidelines set into the congressional record in 1981 by the House subcommittee headed by Robert Kastenmeier, and the multimedia guidelines adopted in 1998 by the Conference on Fair Use. The latter are not legally binding rules and they do have their critics who believe they limit fair use too severely. There’s little doubt, however, that sticking to these conservative guidelines will keep you out of trouble.

To test your knowledge of the basic underlying principles of fair use and the most widely accepted guidelines, we have prepared the True/False quiz on page 60. We suggest that you take the test, check your answers, and then return here.

Welcome back.
I hope you scored 100 percent. If not, here are some general misconceptions that might have led you to the “wrong” answers:

You thought it was about money. Copyright is about control. It doesn’t matter whether or not what you did involved money. What matters more is whether or not it had to do with instruction. Instructional use gives you an exemption; nonprofit use does not.
You thought it was about giving credit. Avoiding plagiarism doesn’t mean you’re complying with copyright laws. Even if you give credit, using copyrighted materials without permission is forbidden for all but a narrow range of purposes.
You thought copyright law was criminal law. Copyright issues for the most part fall under civil, not criminal, law. No one can give or get exemption from criminal law (as President Clinton and Dr. Kevorkian found out), but copyright holders can offer whatever latitude they want with their own copyrights. Cable channels, PBS, certain artists, and others have authorized extended rights for schools.
You thought copyright protection was created to protect people or enrich them. Copyright in America was born to “promote science and the useful arts,” not to protect commercial interests. It was to benefit society at large. Public education benefits the same society.
The No FAT Guide
So what is the bottom line? What can teachers and students do in the digital age? As new media take hold, it is often possible to apply older guidelines to newer scenarios. But how do you proceed when the old rules don’t apply? I would like to propose a rule of thumb I think will help.

Before I provide this advice, I should warn you that I’m not an attorney. Ken Starr and F. Lee Bailey, just for reference points, are attorneys. True, I have done presentations with attorneys and have given copyright workshops for educators across the country, but why should you take copyright advice from somebody who is not a lawyer?

Well, as you probably know, intellectual property attorneys are terrific to have around when you’re in trouble or want the clear-cut rules of case law laid out as they apply to you. In gray, misty areas without clear precedent, however, they tend to err on the conservative side. It’s what they get paid for. If you’re looking to do the right thing as an educator in the new millennium, there are times when you’ll need to be guided by common sense rules such as the one I call “The No FAT (Fear And Trembling) Educators’ Gray Area Guide to Fair Use.”

Here’s how it goes. If you’re considering using copyrighted materials for instructional purposes, do it!…provided that:

you are in a place dedicated to instruction and the material will stay there (rather than being distributed to a wider audience);
you are using a legitimate copy as your source;
the service or resource you are using is not available for sale for educational use.
In other words, don’t use technology for entertainment or reward; don’t pretend the cafeteria or auditorium is a classroom when it’s not; and don’t use bootleg copies of videos, CDs, or software. The creation of a video yearbook may be an educational project, but giving or selling it to the world at large is not. Don’t do multiple simultaneous boots of software when a school site license is for sale. Buy or don’t buy educational products, but don’t steal them.

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