As instructional designers and learning managers, we face the copyright dilemma often. We know (or think we know) we can make some limited use of copyright materials without permission for teaching purposes, but where do we draw the line? The process of creating courses can open up many questions about copyright:
- Can I use this asset (picture, movie clip, sound bite, quote, model, etc.) in my course or program without infringing on a copyright?
- Do I have to ask permission from the copyright owner to use this asset?
- If I cite the source of the copyrighted material used for training purposes, is it considered fair use?
- I’m not using the copyrighted text; I’m just borrowing some of the ideas. Does that violate copyright?
What can we do make sure we’re not infringing on copyright? Everything starts by understanding the basic principles. Let’s begin with a couple of basic copyright concepts that are often misunderstood.
First, copyright is established by the author or creator when a work is created. Just because something doesn’t wear a visible © symbol, doesn’t mean it isn’t copyrighted. There is no formal process that an author or content creator must follow to establish copyright, so if you didn’t personally create the work—and therefore own the copyright—then your assumption should be that somebody, somewhere, did and does.
The next point about copyright that learning professionals should understand is that it is not just the exact text or the work as a whole that is protected by copyright. The ideas, methods, concepts, and many other facets of a work can also be subject to copyright protection.
In my previous positions as an instructional designer, I have always sought written permission to use the copyrighted material. Most often, this involved sending an email explaining where I work, how we planed to use the material (often including a screen shot), and other relevant information about the intended use. I usually got a response within a week and they were generally thankful for the request. Sometimes they would charge a usage fee and or grant usage for a period of time (e.g., two years) and requested a signed contract. At Fredrickson Communications, it’s the same, we either purchase the rights to use copyrighted material or we get permission through an established channel.
Below are some resources that helped me understand more about copyrights get “copyright peace of mind.”
Sometimes copyright is confused with trademark and patents. I like Benedict’s simple explanation:
Copyright protects expression, trademark protects names, and patents protect ideas. Copyright protects creative expression that has been reduced to a tangible form, such as a book, piece of recorded music, computer program, screenplay, painting, photograph, or motion picture.
Fair use defined
- The U.S. Copyright Law cites examples of activities that courts have regarded as fair use:
- Quotation of excerpts in a review or criticism for purposes of illustration or comment
- Quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations
- Use in a parody of some of the content of the work parodied
- Summary of an address or article, with brief quotations, in a news copy
- Reproduction by a teacher or student of a small part of work to illustrate a lesson Reproduction of a work in a legislative or judicial proceedings or reports
- Incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported
Another great resource, the article Copyrights…and Wrongs, explains fair use from the corporate trainer’s perspective and the common errors trainer’s make interpreting fair use:
Acknowledging the source of the copyrighted material does not substitute for obtaining permission. Trainers often mistakenly assume that the fair use doctrine will shield them from copyright infringement on material used for educational purposes. While fair use is the primary exception to the author’s exclusive right of reproduction, it applies only in narrowly defined circumstances. Fair use does not apply to most internal corporate training or commercially presented workshops. Likewise, posting an instrument or reading the instructions verbally will not shield the trainer from an infringement claim by the owner of the exclusive right to display, use, and perform protected work.
Consider Four Factors to Determine Fair Use
Copyright.gov is a great resource for your copyright needs.Section 107 provides four factors to consider in determining whether a particular use is fair:
- The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
- The nature of the copyrighted work
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole
- The effect of the use upon the operational mark for, or value of, the copyrighted work
The distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted materials does not substitute for obtaining permission.
Doug Isenberg of The GigaLaw Firm, offers four questions to ask when considering whether to use a coyrighted work:
- How much of the work are you taking? There are no certain numbers of words or seconds of a video or audio recording to trigger fair use. The rule of thumb is that the more you take, the less likely the use is fair.
- What is the effect of your use on a copyrighted work? An internal training manual won’t have the effect that one being sold for profit would on the original.
- What’s the purpose of your use? Again, commercial uses face much tighter scrutiny.
- What is the nature of the copyrighted work? The more factual it is, the more you can take from it, Isenberg says.
I hope this helps you as a learning professional to better understand some of the principles of copyrights. This is certainly an area where you should seek legal advice for any questions you have.