Well, it seems fair to me: Copyright in the Classroom, part 2

Anyone who teaches biology needs to use copyrighted material. You can’t convey the scope of life on Earth or the complexity of biological processes or the secret inner life of cells without using pictures, videos, and diagrams. Only a small amount of the good stuff is in the public domain, so there’s really no way to avoid copyright issues. Here are some options --

Creative Commons – Look for material with a Creative Commons license. Many authors are willing to share their work with some strings attached. Various CC licenses give the public permission to copy, distribute, and display material as long as the copyright holder is credited or the work is not altered or used for profit. Frequently the graphics and photos on Wikipedia and flickr and articles in online science journals have attribution/non-commercial licenses – just follow the simple rules and they are free for the using.

Fair Use – U.S. copyright law allows educators to use copyrighted materials legally under the principle of fair use. A set of 4 kind of squishy conditions are weighed to determine if a use is fair. Here they are, as described by the Association of Research Libraries (I can copy their discussion here, because it’s published under a Creative Commons Attribution-
NonCommercial 2.5 License):

This “fair use” provision of copyright law doesn’t provide hard and fast rules to tell you whether a use qualifies as fair. Instead, the unique facts regarding a use lead you to a reasoned conclusion. Your evaluation should weigh four factors:

1. Purpose and character: If your use is for teaching at a nonprofit educational institution, this is a factor favoring fair use. The scale tips further in favor of fair use if access is restricted to your students.

2. Nature of copyrighted work: Is the work fact-based, published, or out-of-print? These factors weigh in favor of fair use.

3. Amount used: Using a small portion of a whole work would weigh toward fairness. But sometimes it may be fair to use an entire work (such as an image) if it is needed for your instructional purpose.

4. Market effect: A use is more likely to be fair if it does not harm the potential market for or value of the copyrighted work. But if it does, this could weigh more heavily against fair use than the other factors.

Consider each of these factors, but all of them do not have to be favorable to make your use a fair one. When the factors in the aggregate weigh toward fairness, your use is better justified. When the factors tip the scales in the other direction, your need to obtain permission from the copyright holder increases. Don’t worry that the answer isn’t crystal clear. Just decide whether the factors weigh enough toward fairness so that you are comfortable not seeking permission. Some suggest reliance on the “golden rule” — if you were the copyright holder, would you see the use as fair and not expect to be asked for permission?

Fair use allows teachers to use, reproduce, and distribute copyrighted material in the classroom. But in return, teachers are required to exercise restraint. You cannot copy all or most of a textbook or workbook so that students do not have to buy them. You can’t copy a nature program off the tv and show it every semester if it is available for sale or rent. You are not allowed to put together a thick packet of articles for your students to buy from you or the local copy shop. Be reasonable - the people who write textbooks and make films need to make a living.

Copyright Clearance – If you really need to use copyrighted material in a way that doesn’t fall under fair use, you can and must get permission. Most textbook publishers will sell clearances that allow making lots of copies for educational uses. You can seek permission yourself, or use a clearance services. Many scientists and other copyright holders will also grant permission for you to use a photo or illustration or other material if you ask nicely and want to use it in a way they find reasonable.

For more information on copyright and classroom teaching, check out Stanford University’s website on Copyright and Fair Use. It’s fabulous.

Next time, the TEACH Act and copyright law in distance education.