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| Chilling Effects Clearinghouse > Copyright and Fair Use > Notices > College Board: Don't Test our SATs (NoticeID 1518, http://chillingeffects.org/N/1518) | Location: https://www.chillingeffects.org/fairuse/notice.cgi?NoticeID=1518 |
October 27, 2004
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Sender Information: |
Recipient Information:
[Private]
FairTest
Cambridge, MA, 02139, USA
Sent via: mail
Re: Fairtest's use of College Board copyrighted material
Fairtest's use of College Board copyrighted material, found at: Dear [Private]: This letter is to inform you that your organization's use of the aforementioned copyrighted material requires the expressed permission of the College Board. Our records indicate that you have neither sought nor been granted the right to electronically reproduce our works. This matter needs to be rectified immediately. The College Board owns all right, title, and interest in the featured works. Unfortunately, your misuse overtly bypasses our ownership and significantly impacts the perceptions of students, parents, and educators regarding the services we provide. A source citation is not sufficient. You should not presume permission, it must be formally granted. We recognize that you are a formidable organization within a community which has often authored dialogue concerning College Board offerings, such as the SAT Reasoning Test TM, as such we as that you a) cease displaying any and all College Board copyrighted materials until you have submitted a permission request to our organization and a response has been given to you, and b) submit your permission request via our online permissions request form, found here: http://www.collegeboard.com/inquiry/cbpermit.html If you have any questions, please feel free to contact me at [private] or by e-mail ([private]@collegeboard.org). Thank you in advance for your cooperation. Sincerely,
1) http://fairtest.org/nattest/ACT%20Scores%202004%20Chart.pdf
2) http://fairtest.org/nattest/SAT%20Scores%202004%20Chart.pdf
[Private]
Assistant Director, Legal Affairs
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Question: What may be copyrighted?
Answer:
In order to be copyrightable, a work must be Question: What is copyright protection? Answer: A copyright protects a literary, musical, dramatic, choreographic, pictoral or graphic, audiovisual, or architectural work, or a sound recording, from being reproduced without the permision of the copyright owner. 17 U.S.C. Question: What defenses are there to copyright infringement? Answer: The primary defense to copyright infringement is "fair use." 17 U.S.C. Question: What is fair use? Answer: There are no hard and fast rules for fair use (and anyone who tells you that a set number of words or percentage of a work is "fair" is talking about guidelines, not the law). The Copyright Act sets out four factors for courts to look at (17 U.S.C. Question: Am I free to copy elements of someone else's website verbatim? Answer: No. While you are free to report the facts and ideas embodied in another person's article or web page, copyright protects the expression Question: Do I need to get permission before making fair use of copyrighted materials? Answer: No. Fair use protects even unauthorized uses of a copyrighted work, if your use meets the fair use test. Indeed, fair use can be most important in situations where the copyright holder wouldn't give permissions, such as scathing criticism or parody of the copyrighted work. Question: What is the purpose of the fair use defense? Answer: There is no easy answer to this question. However, one way to approach the question is to examine the purposes of the copyright laws. The clause of the Constitution that gives Congress the power to enact copyright laws indicates that the purpose of the given power is to "promote the progress of science and the useful arts" by allowing authors to secure the exclusive rights in their works for "limited times." Thus, many see the Constitutional scheme behind copyright as a kind of balance between (1) forming incentives for authors to create new works by giving them rights that will allow them to make money from their works, and (2) limiting the rights so that the works themselves are useful to the public and in turn advance the "progress of science and the useful arts." Fair use fits into this scheme by giving the public the right to use copyrighted works in certain situations even though the author has exclusive rights. That is, in some circumstances, such as certain uses involving scholarship or research, the "progress" referred to in the Constitution is best promoted and the public is best served by allowing a use of the copyrighted work. These uses are deemed fair because they are consistent with the power given to Congress to enact copyright laws. Question: If I am engaged in research, educational, or academic pursuits, does the fair use doctrine permit me to copy articles from a journal or periodical? Answer: As mentioned in other FAQ answers in this section, it is hard to predict what a court will do when presented with a fair use defense. However, in this case the answer depends in part on your purposes in copying. If you intend to archive the copies, the answer is probably no, while if you intend to use the copies in classroom instruction (without charging for the copies), the use may be fair. In 1995 the Second Circuit Court of Appeals held that it was not a fair use for research scientists at Texaco to photocopy articles from various scientific and technical journals. Texaco argued, on behalf of its scientists, that the use was for the purpose of research, and therefore was fair under Section 107. But the court was not convinced. In reaching its decision, the court in Texaco ran through the four factor fair use analysis (see In general, what types of uses does the fair use d...? and introduction to this Chilling Effects topic ). The court found that three of the four factors weighed against Texaco, and focused much of its opinion on the fourth factor, deciding that Texaco's use would have a significant impact on the potential market for the journal articles. Thus, in order to make copies of the articles, the research scientists at Texaco had to either pay for them or get express permission from the publishers. Further, use of another's work for classroom instruction purposes may be protected under a separate provision of the Copyright Act. Section 110 of the Copyright Act contains exemptions that provide nonprofit educational institutions the limited right to use copyrighted materials in face-to-face classroom settings. This section provides: "Notwithstanding the provisions of section 106, the following are not infringements of copyright: (1) performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction . . . ." Furthermore, the recently-enacted "Technology, Education, and Copyright Harmonization Act" -- the TEACH Act -- amends Section 110 to exempt certain uses of copyrighted works in the context of distance education (beyond the context of face-to-face teaching). The TEACH Act sets forth in detail the terms and conditions on which nonprofit educational institutions may use copyrighted works in the context of distance education (such as via websites or other digital means) without permission. More information on the TEACH Act. |
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