Copyright FAQ’s: An Educator’s Guide

Copyright law is an often misunderstood topic, especially where the field of education is concerned. So, what exactly is copyright?  Peggy Johnson writes that, “The intended purpose of copyright is to balance the rights of the public for access to information and creative expression with the rights of its creator and to provide incentives for the advancement of knowledge and creativity” (218).

Are educators exempt from copyright law?  No, not necessarily, but there are guidelines that educators should consider to determine if they are practicing fair use.  Section 107 of the Copyright Law of the United States addresses these limitations on exclusive rights:

107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the 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The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Let’s dissect that a little, shall we?  Many educators’ concerns about copyright will be covered by number (1).  As long as a work is being used for educational purposes, then it is most likely considered fair use.

Number (2), the nature of the copyrighted work, looks at the work as a whole.  Is the work published or unpublished?  If the work is not published, then copying and distributing the work could negatively affect the creator’s ability to sell the work in the future.  Also, works of fiction are favored over non-fiction in the eyes of copyright protection because of the creative process involved in producing the work.  Non-fiction works are based on facts, and facts alone are not copyright protected (Russell, 36).

Number (3) concerns the amount of the work that is being used.  In general, using smaller portions of the work is favored over using larger portions.  However, there is no set percentage of a work that is allowable under copyright law.  Educators are asked to use their best judgement and to utilize only the most relevant portions of a given work (Russell, 36) .

Number (4) addresses the commercial potential of a work.  If there is a current market for the work, then one must consider how the use of that work will affect the market value.  If a book is out of print, then educators needn’t worry as much about affecting the copyright holder’s sales (Russell, 36).

Now that we have a better understanding of fair use, let’s address a few frequently asked questions that educators may have concerning copyright law.

Copyright FAQ’s

A new student joined my math class in the middle of the school year, but I do not have any extra workbooks available to give him. Can I make copies of another student’s math workbook?

Unless otherwise noted on the workbook, consumables should not be copied. If the workbook is still in print, then purchasing a new one is recommended.  Under fair use (4) making copies of a work that is still in publication negatively affects the copyright holder’s ability to receive compensation.

If the workbook is out of print and every effort has been made to locate an additional copy, then copying only the necessary portions of the workbook would be considered fair use (Russell, 57).

I would like to show The Indian in the Cupboard movie in my classroom at the end of a language arts unit featuring the same book. Is this allowed?

Yes, Section 110 of the Copyright Law allows for public viewing of performances for educational purposes, as long as the video has been legally purchased. However, rental agreements from online rental or streaming agencies may prohibit public viewing. Be sure to check you user agreement before broadcast. Videos purchased by the teacher, school, or public library are allowable (Russell, 67).

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, 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 under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made;

My school wants show the Disney movie Moana as part of a movie night fundraiser. How do we avoid copyright violations?

If the movie is not being shown for educational purposes then it does not constitute fair use (number 1). If attendees of the performance are charged admission (section 110, 5 (A) (i)) then this could negatively impact the product that is currently on the market. Movie night organizers should determine if the school district has a public performance license (Russell, 66) .  If not, then they will need to purchase one for the event.

Following an art study on photography, my 5th grade students have the option of doing Power Point presentations or a YouTube video compiling their favorite photographs that they’ve recently taken. Many have expressed interest in adding music to their presentation. How does copyright come into play?

This would fall under fair use (1) since it is being used in the classroom for educational purposes (Russell, 93). However, students should be encouraged to use open source music. Use the search tools on Creative Commons to locate these resources. Be sure to have students cite their sources.

My 4th grade students are doing biography reports about famous Hoosiers. Students can download pictures from the internet for their reports because they are free, right?

Actually, you should assume, unless otherwise noted, that all images on the internet are copyright protected (Russell, 80) . While this would fall under fair use (1), students should be advised to search Creative Commons for open source images. Students should also be encouraged to search the state library’s digital collection. Again, all sources should be cited.

My class subscribes to a Scholastic News magazine. We have added a few new students to our class and no longer have enough issues for each student. Can I make copies of the originals (Russell, 57)?

Fair use should be examined here. Yes, it falls under fair use (1) for educational purposes and the amount of copies would be small (fair use (3)). However, because this is a subscription magazine, making copies negatively affects Scholastic’s ability to generate revenue. I would recommend that you contact customer service to adjust the number of issues your class receives.

My school puts on an annual talent show, but there is always concern about students singing, dancing to, or performing to popular music. Is this something that we should be concerned about?

If the talent show is free of charge or any fees are used for educational purposes, then it is considered exempt under section 110 (4) (A) (B):

Notwithstanding the provisions of section 106, the following are not infringements of copyright:

4) performance of a nondramatic literary or musical work otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers, if—
(A) there is no direct or indirect admission charge; or
(B) the proceeds, after deducting the reasonable costs of producing the performance, are used exclusively for educational, religious, or charitable purposes and not for private financial gain

My 2nd grade students are doing a research project on an animal of their choice. May they print articles and make photocopies in the library to assist them in their research (Russell, 57)?

This would be considered allowable under fair use (1) since it is for educational purposes.

 

Sources Cited:

Collections Hosted by the Indiana State Library, cdm16066.contentdm.oclc.org/cdm/ISLdigitalcollections. Accessed 11 Apr. 2017.

“Copyright Law of the United States (Title 17), Chapter 1 – Circular 92.” U.S. Copyright Office, www.copyright.gov/title17/92chap1.html. Accessed 11 Apr. 2017.

Johnson, Peggy. “Managing Collections.” Fundamentals of Collection Development and Management. 3rd, Rev. Ed, 3rd ed., American Library Association, 2013, p. 218.

Open Icon Library, and User: ZyMOS. “Copyright license icon.” Digital image. Wikimedia Commons, commons.wikimedia.org/wiki/File%3ALicense_icon-copyright-88×31.svg.

Russell, Carrie. Complete Copyright for K-12 Librarians and Educators. American Library Association, 2012.