Copyright: A Guide

The TEACH Act provides teachers some exceptions to copyright to accommodate use of copyrighted works in online course management systems. Complete "non-dramatic" musical and literary works can be performed, and "reasonable and limited portions" of other works, such as films and plays and dramatic music can be performed. As well, displays of works such as image, text, and multimedia can be shown in an amount that would be shown in a single in-person class session.

"Amounts of material used for online course support should be tailored to the educational purpose, though it will not infrequently be the case that access to the entire work (e.g., an illustrative song in a class on the history of popular music) will be necessary to fulfill the instructor’s pedagogical purpose."
-Code of Best Practices in Fair Use for Academic and Research Libraries (2012)

This code of best practice was developed by a number of nonprofit think tanks, educational institutions, and attorneys. It distinguishes sharply between media literacy education and the general use of media in education. Specifically, media literacy education (e.g. film studies) features the analytical attitude that teachers and learners, working together, adopt toward the media objects they study. The foundation of effective media analysis is the recognition that:

• all media messages are constructed
• each medium has different characteristics and strengths and a unique language of construction
• media messages are produced for particular purposes
• all media messages contain embedded values and points of view
• people use their individual skills, beliefs, and experiences to construct their own meanings from media messages
• media and media messages can influence beliefs, attitudes, values, behaviors, and the democratic process

According to this code, the four factors of fair use may be applied in instances of media literacy education to assess the amount of media that may be used in instances of media education such as in the online environment. "Educators should choose material that is germane to the project or topic, using only what is necessary for the educational goal or purpose for which it is being made. In some cases, this will mean using a clip or excerpt; in other cases, the whole work is needed."

The 10 percent rule is part of a set of guidelines agreed upon by educators and publishers that never became law. It can be a useful guide to determining if an amount exceeds fair use, but one should bear in mind that to exceed 10 percent won't automatically mean that courts will look askance at the use. Neither will using 10 percent or less always guarantee that an instance is deemed fair use. Instead, a careful fair use analysis should always be conducted.