Intellectual Property

What is Fair Use? Fair Use allows portions of a copyrighted work to be used without the author's permission for specific purposes. Fair Use refers to the use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching, scholarship, research or parody. Fair use is not an infringing use. However, it is important to be aware of the limitations. Factors used in determining whether the activities constitute copyright infringement or fair use include: purpose and character of use, nature of the copyrighted work, amount and substantiality of the portion used, and the effect of the use upon the market.

As we begin to incorporate video and audio streaming into our Blackboard courses, it is important to keep in mind sections of the "Fair Use Guidelines for Educational Multimedia." This includes motion media, text, music, lyrics, and music video, as well as illustrations and photographs. So, how does Fair Use apply to online courses? The Fair Use Guidelines are not law but have become the standards to follow by educational institutions and the courts. "Educational multimedia" is a broad category that encompasses online teaching and learning. The limitations on digital media are far more stringent on digital media than for other media due to the ease of reproduction and distribution.

We should make every effort possible to prevent the making of copies of copyrighted material. Limitations are most restrictive when it comes to distance learning. Distribution should be limited to students enrolled in the course and there must be "technological limitations on access to the network and educational multimedia projects (such as a password or PIN)." These limitations address the amount of a single copyrighted work that can be included, which may vary depending on the media being used.

4.2.1 Motion Media
Up to 10% or 3 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 created under Section 2 of these guidelines.

4.2.2 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 created under Section 2 of these guidelines. 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.

4.2.3 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 created under Section 2. Any alterations to a musical work shall not change the basic melody or the fundamental character of the work.

4.2.4 Illustrations and Photographs
The reproduction or incorporation of photographs and illustrations is more difficult to define with regard to fair use because fair use usually precludes the use of an entire work. Under these guidelines a photograph or illustration may be used in its entirety but no more than 5 images by an artist or photographer may be reproduced or otherwise incorporated as part of an educational multimedia project created under Section 2. 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 created under Section 2.

4.2.5 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 an educational multimedia project created under Section 2 of these guidelines. A field entry is defined as a specific item of information, such as a name or Social Security number, in a record of a database file. A cell entry is defined as the intersection where a row and a column meet on a spreadsheet.

The following table will provide you with a quick summation of the Guidelines:

Media	Allowable Portion for Fair Use
Motion Media (i.e. video)	Up to 10% or 3 minutes, whichever is less
Text Material	Up to 10% or 1000 words, whichever is less
Music, Lyrics, and Music Video	Up to 10%, but in no event more than 30 seconds
Illustrations and Photographs	No more than 5 images by an artist or photographer, or no more than 10% or 15 works from a published collective work, whichever is less
Numerical Data Sets (i.e. databases, spreadsheets)	Up to 10% or 2500 fields or cell entries, whichever is less

In conclusion, there are various things you can do to apply the Fair Use Guidelines in your Blackboard course. First of all, make sure the portions of copyrighted material you are using in your course meet the standards of the Guidelines. Secondly, put the copyrighted material in a section of your Blackboard course that is secured (using Course Options in the Control Panel). Finally, make copyrighted material available for no more than a 15-day period (this can be done using the Availability option on your content), and your students should be instructed not to make their own copies of the material.

If you are still not sure if you are within the Fair Use constraints it may be a good idea to consult Pace's Legal Counsel.