Explaining Copyright Law and How It Applies to Teachers: What You Need to Know About Fair Use, Making Copies & More

The Basics

In today's digital world, where reproduction of material is easier than ever, copyright is becoming increasingly important. As a teacher,

Different Types of Material

you may notice that students now have more of an intuition about the concept, given everything that they hear about music piracy, online plagiarism, and other intellectual property issues that might actually affect them. Teachers are not exempt from copyright laws, and you have to be careful about the materials you use in your classroom as well as be prepared to answer any questions that your students might have.

What Is Copyright?

One way to look at copyright is that it is a gift from the government to creators of original work. In order to incentives more people to create, copyright laws protect these authors/artists/inventors/etc. by giving them exclusive rights to their work, thereby allaying any fears that they might work so hard only to have someone else come by and be able to take the credit and profit. Copyright (along with trademark and patents) is part of a legal concept called intellectual property–which basically bestows some of the legal protections given to tangible property (like possessions and land) to intangible things (like a song or a book). This means that you can get in just as much trouble for stealing someone's song as you can for stealing her purse.

Here in the United States, copyright is actually a codified right in the Constitution: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." The specifics of the law are contained in the Copyright Act of 1976, which lays out all of the rights of copyright holders, as well as the provisions of "fair use." This is of particular importance to teachers.

How Do I Know if Something Is Copyrighted?

As a general rule, unless you see explicitly that something isn't (for example, if it has a notice that it has been released under Creative Commons, or is part of the public domain), then you should assume that any original, creative work is copyrighted. Copyright holders don't have to go through any special process to get copyright–it is conferred automatically at the moment of creation (though you can register your copyright, just for extra protection). And since 1989, the copyright symbol or phrases like "all rights reserved" are no longer necessary.

Does Copyright Protection Last Forever?

It does not! The term of protection has changed quite a bit over the years. Most recently, in 1998, the Sonny Bono Copyright Term Extension Act extended copyright protection to the duration of the author's life plus seventy years. After that period is up, the work goes into the public domain, which means that it is public property and available for use by anyone. This is especially important for English teachers to know, because it means that many of the literary works that you may want to study (pretty much anything before the 20th century) can be used and distributed in any way you like.

What Rights Do Copyright Holders Have?

The Copyright Act gives five exclusive rights to the creators of a work:

  1. the right to reproduce (to copy)
  2. the right to create derivative works (for example, a movie based on a book)
  3. the right to sell, lease, or rent copies of the work to the public
  4. the right to perform the work publicly (if it is something that can be performed, such as a literary, musical, dramatic, choreographic, pantomime, motion picture, or other audiovisual work)
  5. the right to display the work publicly (if the work is a literary, musical, dramatic, choreographic, pantomime, pictorial, graphic, sculptural, motion picture, or other audiovisual work)

What this means for you (and your students) is that generally no one else has the right to do any of these things. But wait… what about when you show educational films to your class? Or when you distribute photocopies from books? Or when you use clip-art on a Powerpoint slide?

Luckily, the Copyright Act contains a special exception for the educational use of copyrighted materials. This is part of the "fair use" rule, and it allows someone other than the copyright holder to make limited use of a copyrighted work without permission for purposes such as teaching, research, scholarship, criticism, parody and news reporting. However, it is very important for teachers to understand just how this exception works, and how much "limited use" they can get away with. The next article in this series about copyright law for teachers will examine "fair use" more closely.

Fair Use

You may have heard about fair use in the news before now; the popular Harry Potter series engendered several lawsuits. However, whereas the law is pretty fuzzy when it comes to cases in which there is a new creative work profiting from material in the original work, it is not quite as complicated when it comes to educational use. Copyright laws for teachers, however, are important matters to understand.

Fair use is part of the Copyright Act, a carve-out that allows for certain uses of copyrighted materials without the copyright owner’s permission. This is what allows scholarship, review, commentary, and criticism of works. You can reproduce something for the purpose of analyzing or criticizing it, and fair use also specifically allows for multiple classroom copies of a work. Fair use is extremely important for culture and scholarship–after all, if it did not exist, then would copyright owners want to give permission for other people to criticize or parody their work? Probably not!

Fair use is considered on a case-by-case basis; if someone sues you for copyright infringement, and the court finds that it was infringement, you can use fair use as a defense. The court then considers these four factors:

  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 substantially 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.

As you can see, the “nonprofit educational purpose” carve-out is right at the top, and the first factor is usually considered to be the most important.

However, it is important to remember that there are definite lines to be drawn when it comes to fair use. To help you catch when you might be going so far, we will next consider some specific examples.

Multiple Classroom Copies

A common question that teachers have is: What can I photocopy? Luckily, fair use specifically allows for multiple classroom copies of work.

However, the specifics can’t be found actually in the Act itself; you have to do a little digging. The following guidelines come from House Report 94-1476, clarifying the minimum standards of educational fair use. You can find the exact, full guidelines here, but what follows is a summarized version.

  • Single Copies: For research or preparation for a class, a teacher can copy book chapters, magazine and newspaper articles, short stories and poems, diagrams, and pictures.
  • Multiple Copies: A teacher can make multiple copies (one per pupil in a course) of something for classroom use or discussion, as long as: poems are less than 250 words and two pages, prose is less than 2,500 words or an excerpt, and only one diagram/picture is copied from a single work.
  • The copying is at the inspiration of the individual teacher and it would be unreasonable to take the time to get permission to use the work.
  • The copying is only for the one class There is no more than one poem/article/story or two excerpts copied from the same author or more than three from the same collective work during one class term.
  • There are no more than nine instances of multiple copying for one class during its term.

I hope this has helped you understand a little bit more about the legal use of materials for the classroom. If you have any further hints to share for teachers let us know in the comments.