News commentaries online face even more difficulties in regard to laws regarding digital distribution and what constitutes fair use.
Fair Use Focusing on Educational Uses
The fair use exception as it applies to educational cases has raised significant issues for teachers and public relations practitioners. Emerging technologies bring new challenges for today's teachers; the Internet and availability of computers and digitizing equipment provide ready access to great reservoirs of information and knowledge (Newsome, 1997). Newer technologies also allow teachers to transfer, copy, and digitize learning materials faster and easier than ever, and as a result, educational uses raise many questions. Fair use explicitly allows use of copyrighted materials for educational purposes such as criticism, comment, news reporting, teaching, scholarship, and research. However, the limits of what can be used are difficult to interpret. Copying and using selected parts of copyrighted works for specific educational purposes qualifies as fair use, especially if the copies are made spontaneously, are used temporarily, and are not part of an anthology (Newsome, 1997). For copying paragraphs from a copyrighted source, fair use easily applies, but for copying a chapter, fair use may be questionable (Newsome, 1997). Duplicating excerpts that are short in relation to the entire copyrighted work or segments that do not reflect the "essence" of the work is usually considered fair use (Newsome, 1997). Finally, if there will be no reduction in sales because of copying or distribution, the fair use exemption is likely to apply.
Educational fair use must take into consideration additional questions when applying the four standards set by the courts. In using or copying materials for educational instruction, teachers must consider additional factors. Teachers must consider the manner in which the expression by the author will be used. They must examine whether the particular way words are sequenced or a concept is expressed is going to be used. In addition, for works with no copyright notice attached, the teacher must consider whether the work could be old enough to be part of the public domain or perhaps unprotected for another reason. Newsome (1997) notes that administrators are prohibited from instigating fair use exemption for specific copyright material for classroom purposes. The times between the decision to use the material and the occasion to use it in the classroom must be so close together that a timely request for permission from the author could not be made (Newsome, 1997).
Finally, for educational purposes the copying must not have a negative cumulative effect on the market of the copyrighted work.. The copying must be for (a) only one course in the school where copies are made, (b) not more than one short poem, article, story, essay or two parts from longer works copied from the same author; nor more than three from the same anthology or collection or periodical volume during the one class term (Newsome, 1997). The teacher must credit the copyright owner on all copies that are distributed or used, and students may not be charged more than the actual cost of making the copies (Fishman, 1997). However, just crediting the original author does not diminish liability for copyright infringement. Laws have been passed regarding the fair use exception as it applies to educational in an attempt to make these determinations easier for teachers. For example, in 2001, the Technology, Education and Copyright Harmonization (TEACH) Act was passed by the Senate, which promotes digital distance education by expanding coverage.
The TEACH Act revised section 110(2) to allow the delivery of authorized performances and displays by nonprofit accredited educational institutions through digital technologies. It expands the categories of works exempted from the performance right but limits the amount that may be used in these additional categories to "reasonable and limited portions," and emphasizes the concept of "mediated instruction" to ensure that the exemption is limited to what is, as much as possible, equivalent to a live classroom setting (U.S. Copyright Office, 2002). Additionally, the Act required that institutions availing themselves of the expanded exception apply technological measures to prevent prolonged retention or further distribution of the work and that the institutions not interfere with technological protection measures applied by the right holders in the work.
Law Review Articles and Court Decisions Involving Fair Use
There have been many law review articles written and court cases decided regarding the fair use exception as it applies...
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