Copyright and Educational Use: Do you know the rules?
“If it’s an educational use, then it’s fair use.” Perhaps you’ve heard teachers or students say something like that, or maybe you’ve even said or thought it yourself when considering whether or not to use copyrighted material. If so, you’re not alone. It’s a claim I’ve witnessed in various educational settings. However, unquestionably following that as a practice could lead to litigation against you or your school that can hit pocketbooks hard and stain the character and reputation of you and your institution.
In 2019, a school district in Texas was found guilty of copyright infringement and ordered to pay over nine million dollars in damages. Why? Because one school employee reproduced and distributed copyrighted educational material for teachers and students to use. Other teachers did likewise with the same material and it even ended up being posted online for anyone to download. What’s the problem with that? The problem is that their use ran afoul of copyright law even though they did not sell the material and thought their actions were allowable for educational purposes. The school district ended up settling the case by agreeing to pay over seven million dollars, which was an expensive lesson for them to learn that also serves as a valuable teachable moment for the rest of us.
The sections below contain links to information that teachers in the United States should be familiar with so that they are following the rules and regulations governing the use of copyrighted material for educational purposes. Some uses of copyrighted material are clearly allowed and some are not. However, situations do arise where its allowance or prohibition is not as straightforward as we would like. Therefore, the resources linked to in the sections below are no substitute for professional legal counsel and do not represent exhaustive coverage of every potential situation, but they are important for all teachers to review and have at the ready to consult as they create their own course material and consider how and if to use material created by others.
Circular 1 provides a basic overview of United States copyright law and also contains links to other documents that deal with specific areas of copyright. https://www.copyright.gov/circs/circ01.pdf
Title 17 details the entirety of U.S. Copyright Law. https://www.copyright.gov/title17/
Circular 21 addresses the Reproduction of Copyrighted Works by Educators and Librarians. https://www.copyright.gov/circs/circ21.pdf
Circular 30 explains Works Made for Hire. It is important for educators to look at their teaching contracts and institution policies to understand what, if any, of the material they create is considered a work made for hire. https://www.copyright.gov/circs/circ30.pdf
Many other informative documents are available at the U.S. Copyright Office website. https://www.copyright.gov/circs/
Section 107 of The Copyright Act addresses Fair Use. https://www.copyright.gov/fair-use/more-info.html
The Fair Use Index is a searchable database of court opinions related to fair use. https://www.copyright.gov/fair-use/fair-index.html
The UNC Charlotte library website contains The Original TEACH Act Toolkit that addresses technology and education. https://atkinsapps.uncc.edu/index.php?q=copyright/teach
The LSU library website also supplies information for The Original TEACH Act Toolkit. https://www.lib.lsu.edu/services/copyright/teach/index
Sometimes copyright holders place Creative Commons licenses on works they created and to which they hold the copyright. There are a variety of licenses with differing permissions and prohibitions. https://creativecommons.org/licenses/
It’s important to understand what the Creative Commons licensing symbols mean so that you know what copyrighted material you can use and how you can use it. Additionally, it’s important to properly attribute your use of Creative Commons licensed material. https://wiki.creativecommons.org/wiki/Best_practices_for_attribution
Digital Millennium Copyright Act
New and different copyright issues have arisen with the increase in technology. The Digital Millennium Copyright Act addresses those issues.
Works that are no longer under copyright restrictions move into the public domain. The Cornell University library website explains how to go about determining if a work is in the public domain or not and Duke University has provided the Center for the Study of the Public Domain.
Permission and Attribution
Sometimes you discover that your intended use of copyrighted material is clearly prohibited or you are not sure if your intended use is allowed and you would rather be safe than sorry. In those cases, you should seek permission in writing from copyright holders before using their material. The Stanford University and Columbia University library websites contain helpful information regarding requesting permission to use copyrighted material.
Sometimes you might also want to use student-created work as part of your course material or for other purposes. In most schools, students are the copyright holders of whatever work they create for their classes. Therefore, in order to use their material, you should gain their permission in writing to do so. If your students are minors and you want to use what they’ve created, you should get permission from their parents or guardians. In addition to copyright regulations, FERPA policies are another reason why you should gain written permission before displaying or using student work. Check with your school to see if they have forms and procedures already prepared for that purpose. If your school does not have those forms, do a search to see what forms others have made available online. Two examples are provided by UTEP and Texas A&M.
Being ignorant of copyright law might be bliss, until you end up in court or damage your character and your institution’s reputation. Additionally, it might be easier and quicker to use whatever material you want in any way you want and then try to seek forgiveness after the fact, but it would be prudent to spend the time and effort to discern the correct use of copyrighted material or get the required permission from the copyright holder beforehand.
Just as we expect students to properly use and cite resources, teachers need to do so themselves. Whether it be through fair use, gaining permission, or the public domain, if you use material that you did not create, then you must properly give credit where credit is due while also making sure that your use is acceptable.