Carrie on Copyright-Television Test

Our school's closed-circuit cable station plans to show videos made by students. The videos will supplement school announcements and focus on student events and achievements. But not all of the videos were created in our TV media class. And that's a problem, since many of the students like to add commercial music and video clips to their homemade videos. Are we in fair-use compliance if the students give credit to the original creators of the music and video clips and use only a small portion of the works? Although we will be using the student videos in a nonprofit setting, with no effect on the potential market value of the commercial works, I'm worried that we may be violating fair-use guidelines. Also, we will be using the final product for reporting, not necessarily as a class assignment.

-Mary Bend, library media specialist Appleton (WI) East High School

I am going to harp again on the four factors of fair use, using the above scenario as an example.

Factor one: purpose. Will the materials be used for commercial purposes or for nonprofit, educational purposes? Since this is not strictly a class assignment, only some of the use is for nonprofit, educational purposes. However, fair use may be viewed as existing along a continuum. In this case, the use of these music and video clips is mostly for nonprofit, educational purposes, rather than for commercial use. So, let's say that factor one puts the student videos in the fair-use category.

Factor two: nature of the publication. The commercial music and video clips have already been published and are widely available in the marketplace. But since the recordings are highly creative works, they deserve more copyright protection. So factor two places the student videos on the borderline of the continuum. To be on the safe side, let's say that factor two assigns the student videos to the unfair-use category.

Factor three: amount of usage. In this case, very small portions of the original recordings are being used by the students. So factor three places the student videos in the fair-use category.

Factor four: effect on the market. Is the use of these materials robbing the copyright holder of money? No. Also, the student videos will be screened only once and their use is contained, so to speak, within the school. That means we can again put the student videos in the fair-use category.

When we consider all four fair-use factors, the use of these student videos qualifies as fair use.

It is important to remember that fair use exists because strict application of copyright law would defeat the very purpose of the law, which is to advance the progress of science and the useful arts. The students are creating new works, partly for educational purposes and partly for extracurricular activities. If this activity were an infringement, these new works could not be created at all. Imagine if students could not quote from other books and journal articles in their school reports. The copyright law is crafted to allow some 'leakage.' Users are afforded some exemptions, such as fair use, library photocopying and preservation, and displaying copyrighted works in the classroom. Of course, it is an infringement to use complete works or to copy works in excess without permission.

Can the students' videos be shown beyond one classroom? Section 110 of the copyright law does place limits on the display of works in more than one location at the same time. But this does not mean that Section 107 on fair use cannot apply in this situation. Fair use (when it is truly fair) can 'outrank' or go beyond the specific exemptions of the law. And this is one of those situations.

The writer also refers to the 'fair-use guidelines.' I am assuming she is referring to the photocopy guidelines written in the late 1970s, which define the minimum of what is permitted. In other words, sometimes you can exceed the defined minimum and not violate the guidelines. It's your choice whether to rely on the guidelines to help you make copyright decisions. But you will sell your users short if you use them as your only guidepost. Consider the fair-use test when in doubt. The more you use it, the more it begins to make a lot of sense.