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Copyright and the Teacher:  Key Points

Why is Copyright Law so vague?  Copyright law (1976) was made intentionally vague so that it could be flexible and apply as new technologies developed.  This vagueness means that clear and easy answers to some questions may not be possible.  Still, there are important implications for teachers and library media specialists that must be considered.  Case law has already established some of these guiding principles.  This page provides a summary of some of those principles - for more information, to consult additional excellent sources:

  • The Copyright Primer for Librarians and Educators, (2nd edition, 1995 published by ALA and NEA) by Janis Bruwelheide.

  • Getting Permission:  How to License and Clear Copyrighted Materials Online & Off, (nolo, 2000) by Richard Stim  

Topics covered here are:  

Also, we suggest a check of information about copyright issues Beyond the Classroom and additional source links to address non-classroom issues.

Fair Use

The stated purpose of the copyright law is to protect the rights of creators/authors, encourage their continued work, and to encourage others to engage in scholarly pursuits.  At times, this means we are allowed to use information from other sources in education when such use by non-educators would be prohibited.  Here are a few key points from Section 107 of the copyright code regarding fair use:

  • The nature of a copyrighted work includes the degree to which it is factual - copying or using factual information is more likely to be fair use.

  • A second important consideration is whether the copying has some effect on marketability of the original work

Section 107

...the fair use of a copyrighted work, including such use by reproduction in copies of phonorecords or by any other means specified by that section (sec 106), for purpose such as criticism, comment, news, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.  In determining whether tue use made of a work in any particular case is a fair use the factors to be considered shall include--

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

The fact that such a work is unpublished shall not itself bar a finding of fair use if such a finding is made upon consideration of all the above factors.

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Photocopying

The copyright law has been revised approximately every 50 years,  The most recent revision (1976) includes the following agreement on photocopying for classroom use.   This is a minimum standard, other things may also be permissible.

  1. Single Copying for Teachers - A single copy may be made of any of the following by or for a teacher at his or her individual request for his or her scholarly research or use in teaching or preparation to teach a class:
    1. a chapter from a book;
    2. an article from a periodical or newspaper;
    3. a short essay or short poem, whether or not from a collective work;
    4. a chart, graph, diagram, drawing, cartoon, or picture from a book, periodical, or newspaper.
  2. Multiple Copies for classroom use - Multiple copies (not to exceed in any event more than one copy per pupil in a course) may be made by or for the teacher giving the course for classroom use or discussion, provided that:
    1. the copying meets the tests of brevity and spontaneity as defined below; and
    2. meets the dumulative effect test as defined below; and,
    3. each copy includes a notice of copyright.

Definitions

Brevity

  1. Poetry:  (a) a complete poem if less than 250 words and if printed on not more than two pages, or (b) from a longer poem an exceprt of not more than 250 words.

  2. Prose:  (a)  either a complete article, story or essay of less than 2,500 words, or (b) an excerpt from any prose work of not more than 1,000 words or 10 percent of the work, whichever is less, but in any event a minimum of 500 words.

  3. Illustration:  One chart, graph, diagram, drawing, cartoon or picture per book or per periodical issue.

  4. "Special" works:  Certain works in poetry, prose or in "poetic prose" which often combines language with illustrations and which are intended sometimes for children and at other times for a more general audience fall short of 2,500 words in entirity.  Paragraph (ii) above notwithstanding, such "special works" may not be reporduced in their entirity; however an excerpt comprising not more than two of the published pages of such special work and containing not more than 10 percent of the words found in the text thereof, may be reporduced.

Sponteneity

  1. The copying is at the instance and inspiration of the individual teacher, and

  2. The inspriation and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission.

Cumulative Effect

  1. the copying of the material is for only one course in the school in which the copies are made.

  2. not more than one short poem, article, story, essay or two excerpts may be copied from the same author, nor more than three from the same collective work or periodical volume during one class term.

  3. there shall be not more than nine instances of such multiple copying for one course during one class term.

 

Also, the copying must not substitute for purchase of anthologies or textbooks.  Copying of workbooks intended to be "consumable" is also prohibited.  It is illegal for a higher authority (department chair, administrator, etc.) to direct the copying to be done.  The same item may not be repeated from term to term.  Finally, students may not be charged more than the cost of photocopying for the materials.

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Developing Multimedia

If a multimedia work is to be broadcast, placed on CD-ROM, or placed online, then special permission for materials used is probably necessary.  Some suggestions from The Copyright Primer include having alternative materials in mind if permission cannot be obtained, making sure that you are asking the actual copyright owner, and expect to pay something for the rights.

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Resources on the Internet

Information we place on the Internet should be marked with our intentions regarding copyright.  Still, it is not required so finding information in the Internet does not guarantee that it is free for public use.  One further complication is that information on the Internet is frequently mirrored in more than one location.   Digital images may be easily manipulated and finding where the originator - copyright owner - is becomes extremely difficult.  In any case, users of Internet information should still plan to pursue permission in the same way as would be necessary for other sources.  The Bellingham (WA) Schools website includes a sample letter to request permission to republish.

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Videotape

Much of the copyright law is written like it was done by a committee of lawyers...  oh, that's right - it was!  The portion of the law that addresses classroom use of videotape is Section 110(1).  Here is the relevant portion:

[P]erformance 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, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made...and that the person responsible for the performance knew or had reason to believe was not lawfully made...[is not an infringement].

 

The most confusing portion of this paragraph is the section trying to explain one key point:  it is not an infringement to show a videotape as long as you have no reason to believe that the tape being shown is a pirated copy - not legally obtained.  In slightly plainer English explaining the entire paragraph, this says that it is NOT an infringement to display/show a motion picture or other audiovisual work if the following conditions are met:

  • the motion picture, videotape, etc. was legally obtained (and is not an illegal duplicate).

  • the instructor shows the work in the course of face-to-face teaching.

  • the display is in a non-profit educational institution (such as a public k-12 school).

There is no need for special licensing to show copyrighted materials in a classroom.  But the videotape could not be shown to a larger audience or a place open to the public.  Also, teachers should be aware that their use of the tape must reasonably be considered part of their curriculum - no showings for entertainment purposes, and no transmitting the videotape to multiple classrooms simultaneously over a building video network.

Computer Software

One interesting problem that has yet to be tested in the courts is the fact that most computer software includes "license agreements" or the packaging that are intended to provide greater safeguards for publishers than would be included within copyright law.  By printing these restrictions on the packages, publishers are attempting to bind us to contract law instead of copyright law.  This is of questionable validity. 

Regardless of the outcome of this issue, it is clear that software cannot be placed on more than one machine's hard drive, booted in more than one machine's system, etc. unless multiple copies have been pruchased or multiple licensing agreements are purchased.

Other Resources

Suggestions from the Association of American Publishers.

ProjectCool - Developer Zone page on Copyright.

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