Copyright for Educators

N.B. The Yellow & Orange Groups recently merged into the Amber group.

Final Assignment

Describe one scenario which you currently experience in which copyright is a factor in the use of learning materials. What is the relevant copyright law in your jurisdiction? Are there any relevant exceptions? Does the law hinder or assist you to obtain access? How could this scenario be improved by open educational resources? Are there any obstacles to using OER’s?  If so, please describe them, along with proposed solutions or workarounds.

Australia

Our biggest issue in which copyright is a factor in the use of learning materials, would be the development of learning object repositories, these repositories are great from a learning perspective enabling teachers to share resources and students can access additional resources. As long as these repositories are only available to teachers and students, Australian law allows their use, the statutory licences enable teachers to copy/scan copyrighted material and store them into the repositories, although the organisations must pay a fee for that use. This fee limits teachers’ ability to put materials into the repositories. The cost of storing this material has recently become extremely costly to the educational institutions, forcing a rethink of putting material into the repositories.

This situation could be improved by open educational resources (OER) as it enables teachers to access and use material that does not incur additional costs. The major obstacle to this is education, in getting teachers to understand why it is better to use OERs rather than traditional resources they find on the Internet (with the traditional all rights reserved tag).

Another issue for teachers is the ability to adapt and contextualize the material for the locality. This is a problem for statutory licencesed material, but it can be easily fixed by using/creating OER with the the Attribution (CC BY) or the Attribution Share-Alike (CC BY-SA) material. There is some complication in copyright ownership: teachers in Australia are employees (school and vocational) and the copyright for the material that they develop belongs to the institution that employs them. It is therefore up to the institution, or representatives of the institution such as department heads, to set the policy to allow teachers to release the materials that they develop as OER.

These workarounds are not difficult and the OER community and framework is in place, it is just a matter of educating teachers and policy makers in institutions on the economic and other benefits of using OER and of releasing their works as OER licences so that all may share, use, and benefit. In Australia, the technology is almost in place; the education/knowledge of educators just needs to reach critical mass and we will be well placed to contribute and benefit from OER.

South Africa

We have a similar situation as in the Australian case where the creation of learning object repositories is one of the most important learning material activities. Access to sufficient, appropriate learning materials is a great challenge for educators and learners in South Africa. One solution is to make learning material available online as open educational resources (under an open licence such as Creative Commons) and allow for contextualisation, adaptation, copying and distributed or aggregated printing.

Unfortunately we do not have the clear and supportive legal context that Australia has. As mentioned earlier in this course, the SA Copyright Act is very vague on exceptions for educational use. Section 12 of the act deals with fair dealing and explicit exceptions:

12. (1) Copyright shall not be infringed by any fair dealing with a literary or musical work—

(a) for the purposes of research or private study by, or the personal or private use of, the person using the work;

(b) for the purposes of criticism or review of that work or of another work; or

(c) for the purpose of reporting current events—

(i) in a newspaper, magazine or similar periodical; or

(ii) by means of broadcasting or in a cinematograph film:

Provided that, in the case of paragraphs (b) and (c) (i), the source shall be mentioned, as well as the name of the author if it appears on the work.

12. (4) The copyright in a literary or musical work shall not be infringed by using such work, to the extent justified by the purpose, by way of illustration in any publication, broadcast or sound or visual record for teaching: Provided that such use shall be compatible with fair practice and that the source shall be mentioned, as well as the name of the author if it appears on the work.

Section 13 deals with general exceptions:

13. In addition to reproductions permitted in terms of this Act reproduction of a work shall also be permitted as prescribed by regulation, but in such a manner that the reproduction is not in conflict with a normal exploitation of the work and is not unreasonably prejudicial to the legitimate interests of the owner of the copyright.

It is not clear how much of a work can be copied and used without the express permission of the author or rights holder. Educators wanting to reproduce or adapt learning resources for their classroom under fair dealing would have to justify it based on their interpretation of the act, and even more so if they wanted to include the resources in an online repository. Here the law hinders access, as educators are afraid of copying even the smallest of sections, or which ever sections they needed for fear of infringing copyright. Obtaining permission from rights holders is time consuming and often to resources intensive for underprivileged schools. Those bold enough to go ahead, run the risk of being accused of infringement and challenged in a potentially costly and embarrassing process.

This situation would be greatly improved through the use of open educational resources. The licences associated with open educational resources make it clear to potential users what they may and may not do with the relevant resource. It removes the permission process for educators and will at the very least allow them to make the copies of the resources they need for their classroom. If compatible licences are used, it also allows teachers to adapt resources by taking, combining and re-sharing what they need.

However, this is not always the case. Although all open licences intend openness, licenses offer different levels of freedom and licences are not always compatible, which could lead to educators not being able to combine resources. It would be great if everyone used the most open licence possible, but that is not possible or appropriate for everyone. In the absence of that rights holders should make their contact details clearly available with their open educational resources to allow potential users to contact them when they are not sure what they may do and would like to request permission. An online system that could help educators clear content and gain permission for some standard use cases could also help.

An even bigger challenge is using content under fair dealing as part of open educational resources. It is not at all clear what is allowed and once available online in a repository, it becomes even more difficult for users who would like to re-use in other countries. A clear definition of fair dealing and explicit exceptions in the act for education would help resolve this for South Africa. Standard minimum exceptions for education across all jurisdictions would resolve this for everyone. In the absence of that, users have to be confident that their use is lawful under the act and make the argument for themselves before using the materials or adding them to a repository.

Only once we have the legal framework resolved, can we start addressing the more practical and technical challenges faced by users as described in the Australian case.

N.B. The Orange & Yellow Groups recently merged into the Amber group.

Week 5 Case Study Text

1. How can she use technology (formats, hosting) and licenses to achieve what she wants? (Answer for your own jurisdiction)

Australia

As with week 5, Professor Dube should use a rights sheet to keep track of the items. She has some options by utilising technology to achieve the preferred outcomes. There are a number of learning management systems (LMSs) available that require students and teachers to authenticate in order to access these “virtual classroom” environments. The listed material could be contained within a LMS. Alternatively another ‘closed’ website such as wiki that requires login and only provides access to teachers and students could also meet the ‘virtual classroom’ criteria.

In order to make the materials publicly available online, Prof. Dube would have to contact the copyright holders (the post graduate student, the publisher of the journal article, the publisher of the scanned article, and whoever owns the copyright of the photographs) to obtain an appropriate licence or permission. Also the Tsonga translations would be considered an adaptation under the Copyright Act 1968 section 10 adaptation means (i) a translation of the work. So permissions would be required.

South Africa

Before making her teaching materials available digitally, Professor Dube would have to clear the rights of the materials by contacting the copyright holders and asking their permission to either make it available digitally herself through a specific licence granted by the rights holder, or gaining access to an online version already made available by the copyright holder. She would also have to get express permission from the copyright holders to scan the article and digitise it and to translate the materials, as these are considered adaptations and are not permitted under South Arican copyright legislation without permission from the copyright holder. Articles published in all rights reserved journals are typically not freely available online or for republication by others online. In this instance she could self-archive a pre-print version of the article and make that available online.

In order for her students to be able to access and leave comments on her teaching materials, Professor Dube would have to make the materials available online (rather than just electronically on a CD or flash drive). Given her concerns about how other may use the materials, she should make it available in an uneditable format such as pdf on the internet in a content management system or a learning management system, or locked down in a ‘closed’ wiki or on a website. Given that her students are her primary target audience, she could opt for an university intranet system that would give only the students access, but then she would not be able to share the materials directly with Professor Mashaba online.

2. What licence or licences would be appropriate for her to use on the work? (Answer for your own jurisdiction)

Australia

For her own works there are some licensing options to suit her needs. To protect the work, but put it up on the internet, I suggest a Creative Commons Attribution-Noncommercial-No Derivative Works 2.5 Australia License located at: http://creativecommons.org.au/licences. Alternatively in the vocational education sector in Australia there is the AEShareNet licences while there is a number of them, the AEShareNet-FfE – Free for Education http://www.aesharenet.com.au/coreBusiness/ would enable the works to be shared for educational purposes while ensuring attribution, with no derivatives and no commercial use. Duel licencing may also be an option.

South Africa

Professor Dube can only determine the licencing for the materials of which she owns the copyright. The others will be determined by her agreement with the copyright holder and fair dealing and exceptions under the copyright act in South Africa. She could rely on traditional copyright protection for her work, as she does not want to allow others many freedoms in using her materials. However, it does seem that she does want to allow others to copy the materials. She could therefore apply a Creative Commons Attribution-Noncommercial-No Derivative Works (CC-BY-NC-ND) licence. The attribution requirement will ensure that she is attributed as the author and copyright holder. The non-commercial requirement will ensure that others do not use her work to make money. The no derivatives requirement will ensure that others will have to ask her permission before they use it in any other way than just as is, which would let her know and control how others are using her work.

3. How does copyright law affect the cross border transfer of each of the materials listed? (Answer for the jurisdiction listed)

As we have discussed throughout this course, copyright law differs across borders. The most problematic areas of copyright when sharing across borders is in the realm of copyright exceptions & limitations (CEL), more specifically in what what is eligible for copyright and fair use / fair practice / fair dealing. For example, one country may afford databases of facts strong creative expression and another country may say the database is just facts and therefore not creative. Another example would basic line graphs or bar charts which are considered creative expression in one country and may be in another. We have already discussed on multiple occasions that fair use / fair dealing / fair practice differs in each country – both within and outside of the classroom.

The Creative Commons Unported licenses are one of the most compatible methods for sharing copyrighted materials across borders. The unported license has been constructed in accordance with the Berne Convention, a copyright treaty signed by most countries.

Andrew Rens (one of our course leaders) has written a great paper for the IDRC on the topic of cross-border CEL. His title is “Implementing WIPO’s Development Agenda: Treaty Provisions on Minimum Exceptions and Limitations for Education”: http://www.idrc.ca/en/ev-141335-201-1-DO_TOPIC.html

Case Study Week 6: Fair Use and OCW

Describe one scenario which you currently experience in which copyright is a factor in the use of learning materials. What is the relevant copyright law in your jurisdiction? Are there any relevant exceptions? Does the law hinder or assist you to obtain access? How could this scenario be improved by open educational resources? Are there any obstacles to using OER’s?  If so, please describe them, along with proposed solutions or work-arounds.

Scenario

Maria works in the faculty technology support office of a US-based institution and provides OpenCourseWare support. She helps professors convert their traditional courses into OpenCourseWare (OCW) courses. In addition to digitizing, designing, and assembling the layout of the OCW course, Maria also does a copyright check for each piece of course content in order to determine which materials can be included in the OCW version of the course and which cannot.

Maria has been working with Professor Crabb, who has recently decided to put his Cognition and Instruction course on the school’s OCW site. Maria discovers that a journal article used to illustrate the various aspects of meta-cognition is copyrighted by the publisher. Professor Crabb explains that he has always claimed fair use when making photocopies of the article. He feels that it illustrates an important point, and he doesn’t want to remove the article from the OCW course.

Questions on scenario:

1. Why might materials used in a face-to-face course require a copyright check before uploading the content as an OpenCourseWare course?

2. What are the four factors of fair use? Does fair use apply to OCW when the materials are made publicly available, such as in an OCW site? Why or why not?

3. What possible solutions or work arounds can Maria offer Professor Crabb?

4. Professor Crabb also wants to use an image for the course that is licensed CC-BY-NC-SA, but he insists on making his whole course CC-BY because he has been told it will be easier for others to reuse. How might you resolve this issue?

Responses:

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Case Study Week 5: Zanele Dube’s Weather Prediction Text

Questions on scenario

1) How can she use technology (formats, hosting) and licenses to achieve what she wants? (Answer for your own jurisdiction)

These seem like two different scenarios. For the first, involving making her work on weather prediction available to her students online for comment, a wiki or blog with a CC license seems like the best option. In this way, students can participate either by editing the work directly in the case of the wiki, or leaving comments in the case of a blog.

In the second scenario, concerning sharing materials with an individual colleague, I would suggest that either email, or some kind of password-protected information management system would be the best mechanism. In this way, the copyrighted materials are not being widely distributed, and an argument can be made for personal use and fair dealing.

2) What licence or licences would be appropriate for her to use on the work? (Answer for your own jurisdiction)

For the first scenario, Professor Dube’s concerns about people profiting from her work could be managed with one of the more restrictive Creative Commons licenses, such as BY-NC-ND. This will also limit modifications of her work, which will reduce the possibility that people will use it in ways she objects to. This would limit the usefulness of her work by others, however, and it would not qualify as an Open Educational Resource, but after she tries the more restrictive license and finds that nothing bad happens, perhaps she would be willing to consider a more open license that would expand the impact and reach of her work.

For the second scenario, the licensing options for the works that the professors created together are limitless. If they want to make the works widely available for reuse and remix, the Creative Commons Attribution license would be best. If Professor Dube’s concerns from the first scenario also apply here, then a more restrictive license like BY-NC-ND would be better.

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View the Text for Case Study week 4

If we assume by the term ‘community college’ that Bongani’s college is a public education institution, even though students pay fees this is for cost recovery rather then for profit as the government only provides partial funding. Then her use of the creative commons non-commercial material would be fine, as it meets the criteria. This would be different on her blog if revenue is derived from Google Adsense for advertising as this would no longer meet the non-commercial criteria.

You may not exercise any of the rights granted to You in Section 3 above in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation. The exchange of the Work for other copyrighted works by means of digital file-sharing or otherwise shall not be considered to be intended for or directed toward commercial advantage or private monetary compensation, provided there is no payment of any monetary compensation in con-nection with the exchange of copyrighted works http://creativecommons.org/licenses/by-nc-sa/3.0/legalcode

For Bongani to use her material on Siyavula, she will need to resolve the attribution issues. This will require her to produce a rights management sheet for the work, while much of it is her own, she will need to identify others works and make decisions. If attribution is not possible, then an alternative may need to be found. Siyavula appears to be a resource for all teachers within the jurisdiction, if that is the case, then Bongani, could put material up, that includes her deliberate exceptions material, as all teachers in the network would/should have the same rights to use the exceptions.

Bongani cannot post material originally licensed CC BY-NC-SA on her blog as CC BY-SA because the share alike condition does not allow her to change the license.

Bongani’s use of content with a Creative Commons non-commercial (NC) clause is not the problem here, even if there are Google Ads on her blog. The NC clause of the CC license is generally interpreted as restricting the direct sale of the licensed content, but ad-supported sites such as blogs are not prevented from using content in this interpretation (see this article for Lawrence Lessig’s reading of NC with regard to ad-supported sites). Bongani can charge her students for copies of NC works since the fee simply pays for the paper copies and no additional revenue is generated by the content.

The more problematic issue Bongani faces is license incompatibility. She will have no problem using the content licensed CC BY-NC, but the CC BY-NC-SA contains a “share-alike” clause, which means that in order to create a derivative work or adaptation of this content she must license her resulting work with the same CC BY-NC-SA license. She may have license compatibility problems, a situation with two distinct licenses requiring that any derivative content be licensed in two different ways (see the CC license compatibility matrix). This is the unfortunate limitation of stipulating the “share-alike” clause in a CC license. It is not clear from the case study whether Bongani wishes merely to reproduce the NC-SA-licensed works on her blog, or to adapt them in some way. If she simply wants to post the material on her blog she can do so because she won’t be creating a derivative work, she is just copying the work. However, if she does wish to modify or remix the NC-SA licensed work, she will either have to release those remixes under the NC-SA license, or find different source material.It is also the case that a CC license does not preclude the option to contact the content creator to request permission under different terms, nor does it affect fair use rights. Bongani could resolve this issue by requesting explicit permission to use the CC BY-NC-SA content on her CC BY-SA blog and on Siyavula. The other, easier option would be to simply link to the CC BY-NC-SA content, thus respecting the creator’s original license.

Francesca’s actions, while performed by an individual, fall under the guidelines set out for institutional copying. As described in Hofman’s Introducing Copyright, there are such things as individual licences, general licences and blanket licences. 

While Francesca’s school is under-funded in comparison to the more prosperous institutions a blanket licence for her school would be its best option, because a flat fee can be paid by the school for its staffs’ reproduction charges. Unfortunately this is not feasible; therefore Francesca’s is forced to reproduce, by-hand, her lesson material for her students’ use. 

The guidelines of the Copyright Board of Canada state that the agreed upon tariffs according to the notice statement amounts to about ‘$1.73 per calendar year per pre-school, elementary and secondary FTE (full-time equivalent) student’ (http://www.cb-cda.gc.ca/tariffs-tarifs/certified-homologues/2007/20070217-e-b.pdf). Hardly a workable solution for an under-funded school, because they tend to have the higher student populations. 

In conclusion, provided that Francesca’s copying fell within the 10% fair-dealing provision she would be allowed to make hard-copies for school purposes. The limitations can be extended by the conditions stated in Section 3, subsection 3 of the Canada Gazette, for instance (http://www.cb-cda.gc.ca/tariffs-tarifs/certified-homologues/2009/20090626-b.pdf). Many countries would follow these same provisions, so we don’t believe Francesca has violated copyright by reproducing them in overhead form.

(Editor’s Note: We’ve gone for something of a combined answer this week for the scenario’s two questions. Hope that is acceptable, thank you.)

Case Study Week 3: Francesca the Teacher with the Projector

Senario

Francesca is a teacher at a less privileged, under resourced school. Because this school lacks resources Francesca  does not have access to technologies such as a smart board. At high-end schools, teachers often scan materials onto smart boards and present it to their students. Though Francesca has access to a photocopy machine, she is afriad of making multiple copies of this material. However Francesca needs this material to properly educate her students. To comply with what she believes copyright law requires, Francecsa decides to transcribe this particular work onto a transparency to and then to display it on a projector for students to copy in their notes, even though it means making a special arrangement to borrow the projector.

Questions on scenario

Is this form of reproduction a violation of copyright laws?

If so, how could Francesca avoid violating copyright in this situation??

In the United States, the legality of Francesca’s strategy depends on whether or not she is making a fair use. We can return to the four factors of fair use from last week, found in section 107 of the U.S. Copyright Act: 1) Purpose of the use; 2) Nature of the work being used; 3) Amount used relative to the whole; 4) Potential impact on the market for the original.  Without knowing details about the work that she is copying onto transparencies, it is impossible to make a  complete fair use assessment, however, given that the use is limited to the classroom, and given that photocopying for classroom use is generally permissible under section 107, we would argue that not only is Francesca probably not breaking the law, she can probably do more than she is currently doing and make photocopies to share with her students.

While case-by-case licensing of individual works has been a straightforward process among schools, colleges, and libraries for many years, collective and blanket licensing schemes for educational use are still in their infancy in the United States. The Copyright Clearance Center began offering blanket licenses for educational institutions in 2007, but these have been criticized by James Boyle and Kevin Smith, (among others) and it is not clear how widely they have been adopted. Furthermore, there is not currently any case law in the United States indicating that because the market for licensed educational uses is growing, photocopying for classroom use is no longer fair. The textbook Introducing Copyright suggests that blanket licenses may now be part of the “normal exploitation of the work” according to the Berne Convention, and therefore “royalty-free use of copyright works will no longer fall under the three-step test” (page 90). However, both common practice and written law in the United States suggest that unlicensed photocopying for the classroom, provided it is not performed by a copy shop (see Basic Books, Inc. v. Kinko’s Graphics Corporation), remains legal.

Case study week 3

Scenario

Francesca is a teacher at a less privileged, under resourced school. Because this school lacks resources Francesca  does not have access to technologies such as a smart board. At high-end schools, teachers often scan materials onto smart boards and present it to their students. Though Francesca has access to a photocopy machine, she is afriad of making multiple copies of this material. However Francesca needs this material to properly educate her students. To comply with what she believes copyright law requires, Francecsa decides to transcribe this particular work onto a transparency to and then to display it on a projector for students to copy in their notes, even though it means making a special arrangement to borrow the projector.

Questions on scenario

Is this form of reproduction a violation of copyright laws?

If so, how could Francesca avoid violating copyright in this situation??

———————–

South Africa

As discussed in the response to case 2, it is not clear from the South African Copyright Act how much copying is allowed for teaching purposes. The guideline given is that the use of the work should be “compatible with fair practice, that the extent thereof shall not exceed the extent justified by the purpose”. It is therefore not clear whether The Act does not make any distinction between digital and non-digital copies.

Changing the format of a copyright work, as Francesca did when making a transparency of the work, means making a copy. Making a copy without the copyright holder’s permission is a copyright infringement. To do so legally, Francesca will need a copyright licence from the copyright holder. It would be very difficult and time consuming for each individual teacher to contact the copyright holder directly, creating the need for a convenient way to gain the necessary permission, as offered by collecting societies.

Francesca should contact DALRO (the Dramatic, Artistic and Literary Organisation) in South Africa (http://www.dalro.co.za/index.php?option=com_content&view=article&id=68&Itemid=79). As collecting society for literary works they offer both transactional (general) and blanket licences to individuals and institutions wishing to make copies of such works. They then collect and distribute royalties on behalf of copyright holders.

Francecsa should inquire whether schools in South Africa already have a blanket licence agreement with DALRO and whether the work she wants to copy is covered by this agreement. If no agreement exists, she should request such an agreement for a blanket licence in order to legally make as many copies of the work as she needs for her teaching purposes. Such an agreement would typically be valid for 1 year, with the option of renewal for a fee.

A blanket licence would better serve her needs and the needs of the school, as they do not need to record every copy made as they would have to with a transactional/general licence, and the amount to be paid would be much less variable than with a transactional/general licence, allowing for easier budgeting and fund raising if necessary

Would a blanket licence obtained from DALRO offer Francesca and her colleagues more freedom than the fair dealing provision in the SA Copyright Act? Probably, as the provision in the Act is not clear and the freedoms provided for in the licence would be express.

Australia

It is not clear from the case study how much of the original work Francesca is transcribing onto the transparencies, if it is less than 2 pages or 1% of the original work then Australia has an educational exception. She is transcribing by hand.

Educational exceptions SECT 135ZMB

There are exceptions that are specifically for education and allow free use of certain copyright materials in certain circumstances.

1. Reading, performing and reciting a text work during classCopyright is not infringed by a teacher or student performing, reading or reciting a literary work while giving or receiving educational instruction in a class.
2. Communicating a text work for classroom performanceCopyright is not infringed by communicating a text work to allow it to be performed in class eg displaying it onscreen using PowerPoint or using an electronic whiteboard.
3. Copying by hand
4. Copying for exams

This would also apply if she did have access to technology to use the smart board.

If she is using more than an insubstantial amount (1% – 2 pages), then Part VB statutory licence would kick in.

India

The response for India for scenario 3 is the same as for scenario 2. The Indian Copyright Act (1957, as amended up to 1999) specifies that reproduction of a literary, dramatic or musical work by a teacher or a pupil in the course of instruction, does not infringe copyrights: “The following acts shall not constitute an infringement of copyright, namely…. the reproduction of a literary, dramatic, musical or artisticwork— a teacher or a pupil in the course of instruction; or part of the questions to be answered in an examination; or answers to such questions;” (Section 52, article h, clause i-iii). This is means that Francesca is allowed to copy the work onto transparency in order to present the material to her students. She need not go through the effort to get a projector though as Indian law also permits her to make copies of the work for the students enrolled in her class. It is good scholarly practice for her to give attribution to the original source, but not technically a requirement of the Copyright Act.

What exceptional uses can Xuan make of the resources, including how much of which resource and under what conditions?

The answer to this question varies by type of resource and by country depending on local fair use and fair dealing laws:

United States

In the United States, there are no numerical guidelines for what percent of copyright works can be used under fair use.  Since Xuan is using these materials to teach community journalists, the Code of Best Practices in Fair Use for Media Literacy Education

(http://www.centerforsocialmedia.org/resources/publications/code_for_media_literacy_education/)

provides helpful guidelines (but they are just that, guidelines, not statute).  Instead of a numerical guideline, Xuan needs to make a reasoned judgment about what portion of the works are required to accomplish her educational goals.  In some cases, this can be the entire work if her educational goals could not be accomplished with only a portion of the work.

It is likely that Xuan would rely on fair use (section 107 of the U.S. Copyright Act) in order to make copies of the resources without permission. While fair use has no hard and fast guidelines, and no set percentages that are acceptable, it does have four factors that Xuan can consider to determine whether or not her use is likely to be fair.

1) The purpose of the use: Non-profit educational uses are more likely to be considered fair than commercial uses. In addition, photocopying for classroom use is explicitly permitted in section 107 . Xuan’s use is educational and non-commercial, which weighs in favor of fair use.

2) The nature of the work: Highly factual works have a thinner layer of copyright protection than creative works. The newspaper article and the textbook are both very factual, while the photograph may be more creative, so this factor would weigh in Xuan’s favor for the first two items, and may be against her for the photograph.

3) The amount of the work being used relative to the whole: In general, a use is more likely to be fair if it involves only a small portion of the total, while using the whole work is more likely to be infringement, but as always, it depends. In all cases, Xuan would like to use the whole work. For the newspaper article, one could argue that a single article is only a small fraction of a day’s newspaper, but for the 100 page textbook, it may be that photocopying the whole book would be too much. Xuan may consider whether there are parts of the book that are most relevant to her class. For the photograph, she presumably wants to use the whole thing, so again, this factor may weigh against her.

4) The potential impact on the market for the original: Would the proposed use compete with the original work in the marketplace? In the case of the newspaper article and the photograph, it sounds like Xuan’s work would not have a negative effect on the market for the original. If the textbook is in print and available for purchase, then the photocopies she makes would probably mean that her students won’t buy the book when otherwise they would. If the book is out of print, one could argue that there is no market on which to have an impact, and therefore photocopying it would be a fair use.

Applying these guidelines to the 3 works Xuan would like to use suggests:

• 10 page article from a local newspaper:  Xuan should determine if she can use a portion of the article to achieve her goals.  It is likely that she could and therefore should only use the relevant portion.  However, there may be a legitimate educational purpose to provide the entire work – for instance, she might be teaching article development so including the beginning, middle, and end might be necessary for the lesson.
• 100 page textbook:  It is very unlikely that Xuan could only accomplish her educational goal if she used the full 100 page text.  Therefore, she should identify only the required portion.  However, she would be able to photocopy and distribute that portion to her class.
• Photograph:  It is unlikely that Xuan could accomplish her educational goals with only a portion of the picture.  If indeed, the entire picture was required to achieve her educational goals, Xuan could copy in its entirety.

In all cases, Xuan should provide attribution for the works wherever possible. Though this is not a part of American copyright law, it is good scholarly practice.