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 to educational uses and news commentary. The first case to adopt the label "nominative fair use" was New Kids on the Block v. News America Publishing, Inc., 971 F.2nd 302 (9th Cir. 1992), in which the court held it permissible for two newspapers to refer by name to the New Kids on the Block when they ran popularity contests for the members of the musical group. Since it was permissible for the newspapers to refer to the band itself, use of the band's name was the only sure way of identifying who the media was referring to. Although the court expressly acknowledged that the defense did not fit the fair use test defined by statute and although the court also characterized the statute as a "comprehensive federal statutory scheme," what the Ninth Circuit concluded was that such use fell outside the statutory scheme "because it does not implicate the source identification function (Moskin, 2005). The defense stood because it was a non-trademark use of the plaintiff's trademark to identify in a truthful, non-misleading way the subject of the popularity contest (Moskin, 2005).
In 1987, in the case WCVB -TV v. Boston Athletic Association, a Boston television news show made prominent use of the name "Boston Marathon" (which happened also to be a registered trademark of the Boston Athletic Association) in its coverage of the race. Without disputing that the name was a protectable mark (one indeed for which the television station had once paid a license fee), the First Circuit held that it was a permitted classic fair use for the broadcaster to use the term in its descriptive sense to identify the event (Moskin, 2005). All the court observed was that the "words do more than call attention to Channel 5's program they also describe the event.... " (Moskin, 2005). N another case, a biographer of Richard Wright quoted from six unpublished letters and ten unpublished journal entries by Wright. In this case fair use was upheld because no more than 1% of Wright's unpublished letters were copied and the purpose was informational. In contrast, in Salinger v. Random House, 811 F.2d 90 (2d Cir. 1987), a biographer paraphrased large portions of unpublished letters written by a famous author. Although people could read these letters at a university library, the author had never authorized their reproduction. The court held for the author due to the fact that the letters were unpublished and comprised a substantial portion of the biography. In another "news commentary case," Roy Export Co. Estab. Of Vaduz v. Columbia Broadcasting Sys., Inc., 672 F.2d 1095, 1100 (2d Cir. 1982, a television news program copied one minute and 15 seconds from a 72-minute Charlie Chaplin film and used it in a news report about Chaplin's death. The court felt that the portions taken were substantial and were part of the "heart" of the film, and ruled against the television news program.
In Harper & Row v. Nation Enterprises, 471 U.S. 539, 225 USPQ 1073 (1985), the Supreme Court found that the copying of about 300 words from a book as not a fair use, while in other cases the copying of an entire work was considered a fair use. In Basic Books v. Kinko's Graphics Corp.,758 F.Supp. 1522 (S.D.N.Y. 1991), Kinko's was held to be infringing copyrights when it photocopied book chapters for sale to students for classes. This was held not to constitute fair use, since Kinko's made money from the copying, rather than the copying being for educational purposes. The court did rule that all coursepacks are infringements, requiring instead that each item in the "anthology" be subject individually to fair-use scrutiny. Similarly, in Princeton University Press v. Michigan Document Services, Inc., 99 F.3d 1381 (6th Cir. 1996), another copy shop created and sold "coursepacks" under circumstances similar to Kinko's, and the copy shop was also found to have acted outside the limits of fair use. In this case, the court focused on the effect on the market, and held that (1) that an existing licensing system will weigh heavily against fair use, and (2) that "coursepack" production by a commercial copy shop does not constitute fair use even if professors select the copied materials.
Finally, in Encyclopedia Britannica Educational Corp. v. Crooks, 542 F.Supp. 1156 (W.D.N.Y. 1982), the court held that particular copying activities were not fair use. In this case, producers of educational motion pictures and videos sued several public school districts that recorded programs as they were broadcast on public television stations and provided copies of the recordings to member schools. The…