Copyright Fair Use Initiatives in the United States

by Ross Mutton, Carleton University

In 1976 the U.S. Copyright Act was amended, including the incorporation of Section 107 which permits Fair Use exceptions under certain criteria for the use of material in educational settings. That led to the development of Fair Use Guidelines for Off-Air Taping. Out of the Green Paper on the National Information Infrastructure in 1994 came the formation of the Conference on Fair Use (CONFU) which established the following groups to deal with further Fair Use issues:

• Digital Images
• Distance Learning
• Educational Multimedia
• Electronic Reserve Systems
• Interlibrary Loan and Document Delivery
• Use of Computer Software in Libraries

The following is an overview of the issues being considered, the status of these initiatives and possible implications. Highlights of the various guidelines are included along with references to the full original material. It should be noted that with the exception of the Off-Air Taping Guidelines, all other guidelines are in draft form and the status of which ranges from seeking endorsement to on hold. Ramifications on the status of similar issues in Canada will also be explored.

Off-Air Taping

This was the first initiative in establishing guidelines for practices in the fair use of copyrighted materials for educational purposes.(1) These guidelines were read into the Congressional Record but were not an amendment to the U.S. Copyright Law. Thus, they are guidelines and reflect common practice, but do not guarantee protection under the law.

The following are some of the significant aspects of the guidelines:

• A broadcast program may be recorded during broadcast (including redistribution via cable) for later use as part of classroom instruction.

• The videotape may be retained for a period of up to 45 days, after which the tape must be erased.

• Only programs broadcast over-the-air qualify, so programming from cable channels are not included. "Broadcast programs are television programs transmitted by television stations for reception by the general public without charge."(2)

• The recordings may "be used once by individual teachers in the course of relevant teaching activities, and repeated once only when instruction reinforcement is necessary in classrooms and similar places devoted to instruction"(3) during the first 10 school days following the recording. This includes the option of use in the home to cover home schooling situations.

• The recordings may be made only at the request of individual teachers and may not be recorded in anticipation of a request.

• The programs may be kept for 45 days for teacher evaluation.

These guidelines vary from the new options in Bill C-32 in Canada.

• The time period in Canada is 30 days for general broadcast programs, one year for newscasts, compared to 45 days in the U.S.

• Programs (except newscasts) recorded in Canada may be kept for evaluation purposes only. In the U.S. they may be used in the classroom within ten school days. Newscasts in Canada may be used in class for up to one year.

• The broadcast of programs in Canada is not restricted to "television programs transmitted by television stations for reception by the general public without charge." Thus, programs from cable channels are included. The wording in C-32 is "communicated to the public by telecommunication"(4)

In general, educators in the United States have more freedom to record and use television broadcasts in classroom teaching, with the exception of not having access to cable-only channels. That is tempered somewhat by some cable channels such as A&E, Bravo, CNN and The History Channel having specific guidelines for the use of their programming in education through the Cable in the Classroom initiative.

Digital Images

There is no issue more controversial than that of protecting copyright in the digital realm. Certainly, this applies to the production and distribution of digital images, and work to establish Fair Use guidelines in this area in the United States is not without differing opinions and controversy.

The following are some of the key points in the current draft of these guidelines, which were established in November 1996(5):

• The guidelines apply to making digital copies of images legally acquired that are not readily available through commercial distribution in digital form.

• An educational institution may display and provide access to images digitized under these guidelines through its own secure electronic network, implementing technological controls and institutional policies to protect the rights of copyright owners. Access is not allowed beyond the institution's secure electronic network.

• The digital images on an institution's secure electronic network are not be downloaded, copied, retained, printed, shared, modified, or otherwise used.

• An educational institution may display a visual online catalog, including thumbnail images created as part of the institution's digitization process, on the institution's secure electronic network, and may provide access to such catalog by educators, scholars, and students affiliated with the educational institution.

• An educational institution may display an educator's compilation of digital images on the institution's secure electronic network for classroom use, after-class review, or directed study, provided access is available only to students enrolled in the course. This applies only during the semester or term in which that academic course is given.

• Images digitized from a known source and not readily available in digital form may be used for one academic term and may be retained in digital form while permission is being sought. Permission is required for uses beyond the initial use.

• Where the rightsholder of an image is unknown, a digitized image may be used for up to three years from first use, provided that a reasonable inquiry is conducted by the institution seeking permission to digitize, retain, and reuse the digitized image.

• An educator may display digital images for educational purposes, including face-to-face teaching of curriculum-based courses, and research and scholarly activities at a non-profit educational institution. As above, this includes display on the institution's secure electronic network to students enrolled in a course given by that educator for classroom use, after-class review, or directed study, during the semester or term in which the educator's related course is given.

• Educators, scholars, and students may use or display digital images in connection with lectures or presentations in their fields, including uses at non-commercial professional development seminars, workshops, and conferences.

• These guidelines do not cover reproducing and publishing images in publications, including scholarly publications in print or digital form, for which permission is generally required.

• Students may use digital images in an academic course assignment such as a term paper or thesis, or in fulfillment of degree requirements; publicly display their academic work incorporating digital images in courses for which they are registered and during formal critiques at a nonprofit educational institution; and retain their academic work in their personal portfolios for later use such as graduate school and employment applications.

• Educators, scholars, and students may digitize lawfully acquired images to support the permitted educational uses under these guidelines if 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. Images digitized for spontaneous use do not automatically become part of the institution's image collection. Permission must be sought for any reuse of such digitized images or their addition to the institution's image collection.

Some of the comments that have come out so far on these draft guidelines are(6):

• it would be premature to establish guidelines on this issue at this stage
• these rules restrict and inhibit research and education
• the guidelines make the procedures even more complicated
• the guidelines add a time factor to the existing four factors spelled out in Fair Use
• guidelines at this time would stifle experimentation with new methods of providing access to education

In Canada, there are no specific moves to define fair dealing use of digital copies. It is clear that CANCOPY does not represent the right to make digital copies at this stage. Issues concerning digital rights will likely be dealt with in the next phase of amendments to the Copyright Bill in reaction to recommendations from the Information Highway Advisory Committee. The timing of this initiative is currently vague. It is quite conceivable that the development of workable digital watermarking and tracking will have an impact on the final solutions in this area.

Distance Learning

This is an issue that was originally under consideration for inclusion in Bill C-32 in Canada but was set aside as those crafting the legislation concentrated on areas where they considered there was an opportunity for consensus. The guidelines for Fair Use in the U.S. are at the draft stage, with the following recommendations(7):

• The guidelines apply to non-profit educational institutions and to government agencies offering instruction to their employees. Students must be officially enrolled in the course.

• Transmission must be over a secure system. Reception must be a classroom or similar place where the reception can be controlled by the eligible institution. In addition, the institution "must utilize technological means to prevent copying of the portion of the class session that contains performance of the copyrighted work"(8).

• Performance of an entire copyrighted work or a large portion thereof may be transmitted only once for a distance learning course. For subsequent performances, displays or access, permission must be obtained.

• The institution receiving the transmission may record or copy classes that include the performance of an entire copyrighted work, or a large portion thereof, and retain the recording or copy for up to 15 consecutive class days for viewing by students enrolled in the course. Access to the recording or copy for such viewing must be in a controlled environment such as a classroom, library or media center, and the institution must prevent copying by students of the portion of the class session that contains the performance of the copyrighted work.

• The transmitting institution may, under the same terms, reproduce and provide access to copies of the transmission containing the performance of a copyrighted work

These guidelines appear to be limited and restrictive with respect to the diversity of delivery modes and technologies available to educational institutions. The following are some of the comments evoked by these guidelines:

• The guidelines are limited to live, interactive courses over a controlled system and do not address the variety of asynchronous modes that are increasingly available. They also eliminate any distribution systems to the home of the learner.
• A work may be transmitted only once, applying restrictions that go beyond the norm in Fair Use Guidelines.
• The guidelines require educational institutions to actively prevent students from making copies of works
• Do these guidelines not combine to apply restrictions that would not apply to students taking courses on the premises of an educational institution, creating inequities?

As far as the Canadian perspective goes, again one can only hope that this issue will be examined in the next round of amendments. However, restrictions such as those above would provide few solutions to the current and developing practices of delivering education beyond the confines of educational premises.

Educational Multimedia

The Fair Use Guidelines for Educational Multimedia(9) has proceeded farther than any of the other new guidelines under Fair Use. This set of guidelines has reached the final draft stage and has been attracting support from various associations and organizations. It has also been criticized and specifically denied support by other entities on the grounds that the guidelines are too restrictive.

The following are highlights:

• Students may incorporate portions of lawfully acquired copyrighted works when producing their own educational multimedia projects for a specific course and may use them in their own portfolios as examples of their academic work for later personal uses such as job and graduate school interviews.

• Educators may incorporate portions of lawfully acquired copyrighted works when producing their own educational multimedia programs for their own teaching tools in support of curriculum-based instructional activities at educational institutions in face-to-face instruction, student directed self-study, or for remote instruction to students enrolled in curriculum-based courses over the educational institution's secure electronic network in real-time. They may also be used for after class review or directed self-study, provided there are technological limitations on access to the network and educational multimedia project, and provided that the technology prevents the making of copies of copyrighted material.

• Educators may use their educational multimedia projects created for educational purposes for a period of up to two years after the first instructional use with a class.

• Motion Media- up to 10% or three minutes, whichever is less, in the aggregate of a copyrighted motion media work may be reproduced or otherwise incorporated as part of a multimedia project.

• Text Material- up to 10% or 1000 words, whichever is less, in the aggregate of a copyrighted work consisting of text material may be reproduced or otherwise incorporated as part of a multimedia project. An entire poem of less than 250 words may be used, but no more than three poems by one poet, or five poems by different poets from any anthology may be used. For poems of greater length, 250 words may be used but no more than three excerpts by a poet, or five excerpts by different poets from a single anthology may be used.

• Music, Lyrics, and Music Video- up to 10%, but in no event more than 30 seconds, of the music and lyrics from an individual musical work (or in the aggregate of extracts from an individual work), whether the musical work is embodied in copies, or audio or audiovisual works, may be reproduced or otherwise incorporated as a part of a multimedia project.

• Illustrations and Photographs- a photograph or illustration may be used in its entirety but no more than five images by an artist or photographer may be reproduced or otherwise incorporated as part of an educational multimedia project. When using photographs and illustrations from a published collective work, not more than 10% or 15 images, whichever is less, may be reproduced or otherwise incorporated as part of an educational multimedia project.

• Numerical Data Sets- up to 10% or 2500 fields or cell entries, whichever is less, from a copyrighted database or data table may be reproduced or otherwise incorporated as part of a educational multimedia project.

• There may be no more than two use copies of such a multimedia work made, only one of which may be placed on reserve.

Some comments:

• The guidelines do provide some flexibility and access to materials for teaching purposes without having to clear each and every item used.
• Some of the definitions while at least giving direction, also lead to convoluted and complicated formulae.
• Access is limited to a secure network in real time.

To date 30 organizations and three government agencies have endorsed the agreement. However, there are significant organizations such as the American Library Association, Association of Research Libraries, National Association of Independent Schools, National Education Association, National School Boards Association, and the U.S. Catholic Conference that have refused to endorse, indicating that the guidelines are too restrictive. Those who have endorsed are predominantly from new media user organizations, creators and distributors. They indicate that this is the best possible workable agreement through a negotiated deal between the creators and users. The final CONFU meeting (Conference on Fair Use) is scheduled for May 1997 and if sufficient numbers of organizations have endorsed the guidelines, they will be included in the CONFU final report.

Electronic Reserve Systems

This group looked at the issues involved in the application of fair use to the creation of electronic reserve systems to allow storage, access, display and downloading of electronic versions of materials supporting the instructional requirements of a specific course within a nonprofit educational institution. After considerable discussion and several attempts at drafting guidelines, the working group concluded that it was not possible to draft fair use guidelines capable of gaining wide acceptance at this time. The following are some highlights of their last work which took place in March of 1996(10):

• The items could include an article from a journal, a chapter from a book or a poem and could even represent a substantial portion of the work. The copies must be made from a legally obtained copy. The total amount of material included in electronic reserve systems for a specific course should be a small proportion of the total assigned reading for a particular course.

• Electronic reserve systems should be structured to limit access to students registered in the course for which the items have been placed on reserve, and to instructors and staff responsible for the course or the electronic system.

• Students should not be charged specifically or directly for access to electronic reserve systems.

• Permission from the copyright holder is required if the item is to be reused in a subsequent academic term for the same course offered by the same instructor, or if the item is a standard assigned or optional reading for an individual course taught in multiple sections by many instructors.

The whole issue of reserve copies has been a contentious issue in Canada in negotiations with CANCOPY. It is unlikely that electronic reserves will be resolved without both some digital security involved in the making of copies, and with the participation of CANCOPY. The stagnation of progress in the U.S. is an indication of how long this issue may continue to evolve, particularly with the library associations already concerned about the limitations that the various proposed guidelines exert on the rights of users to timely and meaningful access.

Interlibrary Loan and Document Delivery

The major issue to be examined here is the electronic delivery and storage of information via interlibrary loan and document delivery. At this point in time, much of this now starts on paper and ends on paper, with an intervening electronic delivery process. However, the future will likely include a completely digital process.

This group met to examine issues involved both in digital interlibrary loan and document delivery activities. After considerable discussion, the working group unanimously agreed in March 1996 that it was premature to draft guidelines for digital transmission of digital documents.

Interestingly enough, in the Canadian experience, the latest model agreement signed between Canadian universities and CANCOPY provides for copies made for interlibrary loan as part of the general terms of the agreement. This does not include the making of a digital copy, but does permit digital transmission.

Use of Computer Software in Libraries

This issue is not significantly different than that of the use of software anywhere within an educational institution. The following is one highlight(11):

Computer software may be lent by nonprofit libraries to patrons for nonprofit purposes provided that the required warning is placed on lawfully acquired copies. This includes lending a book with supplemental software on a disk in the book pocket, even for interlibrary loan.

For all practical purposes, it is suggested that software used in libraries should be licensed for such use. A student could borrow and use the software, but could not keep a copy beyond the term of the lending period. If a book includes software, it may be leant out with the book. That does not give the borrower the right to make a permanent copy of the software unless the licence permits it.

Summary

The United States is working on Fair Use guidelines in a belief that such guidelines will permit users to get on with the task at hand rather than wait for legislation that could take years to evolve. To date, progress has been spotty and the user communities are somewhat divided on the advantages of guidelines that have been drafted. There appears to be a particular division between the library and school organization communities vs. media production and user communities. Should this process not lead to eventual guidelines, then the legislative route will be an alternative and possibly more frustrating course of action.

In Canada, we have tended to reply on legislation to resolve these issues. Because there are so many issues with many points of view, it has been difficult for government to find middle ground necessary for moving legislation forward. Thus, we are behind the U.S. in resolving these issues. However, with international negotiations taking place in the forum of the World Intellectual Property Organization, agreements affecting the Berne Convention may lead us to solutions within Canada, whether or not we are in agreement.

(1) The full text of the Off-Air Videotaping Guidelines are available at http://www.williams.edu:803/AV/Kastenmeier.html

(2) Guideline 2 of Guidelines for Off-Air Recording of Broadcast Programming for Educational Purposes

(3) Guideline 3 of Guidelines for Off-Air Recording of Broadcast Programming for Educational Purposes

(4) Bill C-32 An Act to amend the Copyright Act- Section 29.7 (1) (a)

(5) Educational Fair Use Guidelines for Digital Images, Draft November 6, 1996- http://alberti.mit.edu/caa/The_Profession/CEI/confu116.html

(6) Statement from the College Art Association Regarding the "Educational Fair Use Guidelines for Digital Images", November 25, 1996- http://alberti.mit.edu/caa/The_Profession/CEI/caaconfufinal.html

(7) Proposal for Educational Fair Use Guidelines for Distance Learning- http://www.uspto.gov/web/offices/dcom/olia/confu/appendix.htm#i

(8) Guideline 4.2 of Educational Fair Use Guidelines for Distance Learning

(9) Fair Use Guidelines for Educational Multimedia- http://www.libraries.psu.edu/avs/fairuse/guidelinedoc.html

(10) Fair Use Guidelines for Electronic Reserve Systems- http://www.utsystem.edu/ogc/intellectualproperty/rsrvguid.htm

(11) Statement on Use of Copyrighted Computer Programs (Software) in Libraries -- Scenarios- http://www.uspto.gov/web/offices/dcom/olia/confu/appendix.htm#k

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