After completing the readings and assignments in this modules, participants will understand

• the legal basis of copyright exemptions,
• how the TEACH Act affects online education,
• the rules of fair use, and
• how these rules can be applied to various situations

as determined by addressing a minimum of 80% of the point requirements delineated by the activity rubric and actively participating in discussion.

Hypothetical Assignments
What if...

At this point in the course, we have gone over a lot of material. The basics of copyright have been covered, along with guidelines for fair use and various copyright acts. Now, let's try to put it into practice.

As the major assignment for this module, everyone will write a response to one of the following hypotheticals. Questions are presented at the end of each hypothetical. To the hypothetical you are assigned, write a clear discussion that outlines the copyright aspects of the hypothetical (that is, give an analysis based on copyright exemptions and the four factors involved in determining fair use as well as any other implications that might come to mind). You might want to start by listing pros and cons of the particular situation. Then give your conclusion as to whether or not the given situation is an example of legal use along with reasons why you draw that conclusion. You may bring in case law if you wish, but we will get more into case law in the next module. For now, I want you to consider the case with a blank slate, so that you can develop your skills at analyzing situations. Answer any additional questions found within the hypothetical. Base your answer on what you understand about the fair use factors as discussed in the readings and any guidelines that might apply to the given factor. Also keep in mind aspects of Title 17 such as copyright exemptions that might play a role.

Keep in mind that these are hypothetical situations designed to bring about discussion of the important topics. As such, a lot of the information that you would need to apply the various factor analyses may not be present within the hypothetical. What I want you to do is figure out what is present, what you still need to know, and how you would make your analysis given different eventualities once you found out the required information. Why do the assignment this way? Well, when you do your own analyses, you will not have all the information placed before you on a platter. You need to be able to figure out what it is that you need to know in addition to making an effective decision once you know the pertinent information.

Also keep in mind that there is not necessarily a right and a wrong answer to these situations. In other words, the final decision on whether something is or is not fair use is not always clear cut. As long as you explain your reasoning and it is within the scope of the readings or some source that you cite, I will not take off any points for your final decision pro or con fair use.

The following list shows which hypothetical everyone is to do. It will be available at the official start date of the module as presented in the course calendar. If the table appears empty to you, that is because I open up this module before the official start date so that those interested can get a head start on the readings, but I do not populate the table below until the start date so that everyone has the same amount of time to formulate a response.

• Hypothetical 1
  • student names
• Hypothetical 2
  • student names
• Hypothetical 3
  • student names
• Hypothetical 4
  • student names
• Hypothetical 5
  • student names

One of the most useful aspects of this course will be the dialogue that is generated between the students. In addition to answering your own hypothetical, pick the response from at least three other student to at least 2 different hypotheticals than the one that you answered. Constructively comment on the strengths and weaknesses of his/her argument. The due dates for these posts are in the Course Calendar

Answer your hypotheticals as assigned and described in the course notes by responding to the appropriate message in the discussion forum.

In the actual forum, the following question would be posed.

Hypothetical #1: A University is developing a new program for students with temporary disabilities such as broken legs. The new program would present online materials to the students that would replace face-to-face content for the course. These online materials are made up of all course notes, reading materials, and any other materials such as photographs and the like. Would this program constitute a copyright violation or would it fall under an exemption? What might help to make this acceptable or more acceptable? Would this even by the type of program that you would want to create?

Students would then reply to this question and the thread would develop.

Example Hypothetical Response with Grading

The Question Given to Student ----

An instructor keeps most of the materials used in his course on file in the school's [library reserves], including several [books], but [mostly journal articles from various sources]. Several students are complaining that because the enrollment for the [different sections] of the course totals nearly 70 students, that the [3 copies] of materials available on reserve are inadequate. To alleviate the situation, the instructor makes [3 additional copies] of the journal materials and places them on reserve as well. What are the implications of these 3 additional copies? Is the instructor still within fair use or is some other rule applicable?

[the brackets above indicate areas of importance to the analysis, but the brackets were not included in the actual presentation of the question to students]

Sample Response ---

Four Factor Analysis

1. Purpose - The use is non-profit, educational and thus purpose rules in favor of fair use. [basically, this is all that you will usually need to put for most of these, but purpose should also include how the item is to be used. For example, you can show a video in the classroom as long as there is a pedagogical reason for showing it, but you cannot show a video within a classroom just for entertainment. In this way, your use is not educational even though your institution is.]

2. Nature - The copyrighted works being copied are journal articles and not entire books. The works are being copied for educational reasons and it is assumed that none of the works by themselves constitute a major portion of the class. Also, it is not mentioned whether or not the section being taken is the core content of the article [here is where the student brings in the analysis of what needs to be known that I mention in the notes above], but as entire articles are being copied, it can be assumed to be so. However, the core argument is intended more for larger works such as books. Nature might rule in favor of fair use. [This response was alright, but it misses why being a journal is important. Also, nature would include more than just that it was a journal article, but what type of journal. Is it a scholarly journal or an entertainment journal]

3. Amount - Yes, entire articles are being copied, but that is not the key issue here, because all of the articles present in a journal constitute the part of a whole and none of them by themselves are a majority portion of that whole in most circumstances. The question also does not specifically state how many articles are taken from each source, just that a variety of sources are used. If we look at the Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with Respect to Books and Periodicals [very important to bring these documents into your analysis when you can] we can try to judge whether or not we are beyond the minimum accepted use. The Brevity requirement says that entire articles can only be used if it is less than 2500 words. This is one of the most often argued points in these guidelines. Rarely is an article less than 2500 words, and thus the user would technically be required to take only 10% of the total article. In most cases, it would be acceptable however to copy an entire article, as long as that is the only article from that particular issue that is taken, or if more than one article from a particular issue of a journal is taken, if the total of all articles is less than 10% of the total journal length not including advertisement pages. [I'm not sure where the last little bit about 10% of the whole was come by from this student. Basically though, you can take an entire article provided all copyright information is included and other rules are met. The student does not discuss the need for the copyright notice, etc.] Let's assume that this has been met. Definitely spontaneity would be in favor of fair use since the instructor decided on the request of students after the course had started to create the extra materials. [Spontaneity would somewhat fall under nature.] When we look at cumulative effect, since there are now only 6 copies of the reserve, which is less than 9, and the articles are only for one course [not true, it was for multiple courses], we may be within fair use for cumulative effect. [That's all well and good if the student had cited where these numbers came from] The final response is that the real test of amount would require knowledge of how many articles are taken from which journal volumes. That is, you can usually take up to 5 articles from 5 different writers per 5 years of a journal and be within fair use guidelines [The odd thing here is that I've actually heard this rule before, but I have not seen it anywhere except by word of mouth. Personally, I'm not sure about this, but since no citation is given for where this rule came from, the student loses points]. Therefore, the question does not provide enough information to accurately answer this factor of fair use, however, if the requirements in the above discussion are met, it should be within fair use boundaries of amount. Furthermore, these guidelines are minimum and not maximum standards. [Final analysis, the student picked the wrong guidelines. This is not classroom copying, but reserve copying, which is different, but I would not take off all of the points just for that. I would change the grading to take into account this misconception taking off a few initial points for the mistake, but nothing for any propogation of the mistake as long as it makes sense.]

4. Effect - It is doubtful that the students in the course serve as a market for the given periodicals unless it is a higher level graduate course. Since 70 students are in the course, this is unlikely. Thus, there should not be an effect on the potential market. However, if a number of articles are consistently being copied from the same journal volume, then there may be a potential loss on the market in that the library is not purchasing additional copies of the journal in order to justify additional purchases. In this situation, effect may rule against fair use. [The student did a good job of noticing that it is not so much a market effect from the perspective of students making purchases, but from the perspective of the library making more purchases.]

Final analysis

When analyzing the four factors of fair use and even upon applying the classroom guidelines for photocopying, it is highly likely that the use by this instructor falls within fair use. [a fair assessment given the analysis above, but there are alternatives such as actually switching to classroom copying that would be better. Also, access to the reserves is not discussed.] Several possibilities, however, such as a number of the articles within the whole of the course packet coming from the same author or journal volume, may rule against fair use in terms of amount and effect. While it is unlikely that a journal publisher would press charges against a single such violation, if there is a continuity of such violations at that institution, then such charges may be drawn, similar to a case brought against Kinko's, Inc., since the cumulative effect can be substantial on the publishers profits.

[This analysis missed a few key points, but it also had some sound ideas and the student shows at least a basic understanding. It unfortunately, completely ignored aspects of copyright beyond fair use, namely section 108 and other rules with library copying. This exercise is more than just a fair use analysis. You have to think of everything that might be involved. I would give this a B.]

Note: If you are still having trouble with your hypothetical, try the following. Read the questions a few times. Underline all of the facts, leaving out all of the fluff. Ask yourself, how would the four factors apply to just these facts, and are there any guidelines that might apply to this situation. Is there something beyond the fair use factors such as exemptions, licenses, obtaining permission, and perhaps laws outside of copyright. Are there any facts missing? Tell me what they are, why they are needed, what the information available does tell you, and how the four factor analysis might end up. Also, do not feel the need to actually cite court cases for this analysis. Although you would normally want to do this in practice, we have not yet talked about cases. We will do that in the following modules, but I want to do this exercise first so that you can learn to do the analysis before your mind becomes biased by old case law.