When educators hear the word copyright, it's often in the context of bad news. Someone is telling us that we cannot do something we want to do, or a copyright owner is de-manding repayment or reparation for misappropriation of materials. Either way, the outcome can be expensive: Fines for copyright infringement can be as high as $150,000 for each occurrence and up to $250,000 if computer software is involved.
As technology makes copying items easier than ever, copyright watchdog groups and copyright holders are aggressively monitoring and enforcing their rights. News items highlight copyright infringements that involve the Internet or surprising restrictions on what would seem to be innocuous activities. Some copyright owners even hire bounty hunters to report infringements. Where do we cross the line from compliance to infringement, and how do we protect our schools and ourselves from fines, stress, and bad publicity?
The Facts of Copyright
Many of us hold common misconceptions about copyright. We believe that materials without a copyright symbol (©) are free for the taking. We think that we can use any materials as long as we don't charge other people for them. We believe that if something is on the Internet, the authors must have wanted us to have it and use it freely. These assumptions are false, and clinging to them can get us and our institutions into serious trouble.
To protect ourselves, all educators should know some basic information about copyright law. First, facts cannot be protected by copyright, but the expression of those facts may be. For example, most of the information in an almanac or encyclopedia is factual and therefore not protected by copyright. The author's choice of words to express those facts, may, indeed, be copyrighted.
Second, notice of copyright is not required. Material is automatically protected by copyright as soon as it is put into tangible form—for example, when it is written on paper, saved to disk, recorded on tape, or painted on canvas. If you can't find a copyright notice, assume that the material is protected by copyright.
Third, copyright lasts for the life of the author plus 70 years for materials created today, but most material published in the United States before 1923 is in the public domain and is no longer protected by copyright.
Fourth, schools have some limited exemptions—known as fair use—to copyright requirements, but the exemptions are for materials used strictly for educational purposes. The exemptions may also be limited in scope, pertaining to only a portion of the material the teacher might wish to use.
Four Tests for Fair Use
Some of the ways that schools or libraries use copyright-protected materials are governed by detailed guidelines. There are complex and intricate rules for using print materials for teaching and for making multiple copies. For example, the guidelines for print state that a poem of fewer than 250 words that is printed on no more than two pages may be copied in its entirety. If the poem is more than 250 words, only 250 words may be copied. If the words needed to finish a line would kick the word count over 250 words, however, those extra words may be included. Under the clearer guidelines for multimedia, a sample rule states that up to three minutes or 10 percent, whichever is less, of a motion media work may be used in such multimedia presentations as PowerPoint or Hyperstudio.
- The purpose and character of the use. Will the materials be used non- commercially in a nonprofit education institution?
- The nature of the work being copied. Is the work published or unpublished? Is it factual or creative? Unpublished works have stronger protections than do published works. Although facts cannot be protected, the expression of those facts may be.
- The amount of the work being used. Are you using a little, a lot, or all of a work? The more you use, the less likely that the use is fair.
- The effect of your use on the market for or value of the work being copied. What would happen if everyone were to do what you are proposing? Would you deprive the copyright owner of a sale or harm the value in other ways? If you have any commercial intent, even if the money goes to a good cause, harm to the market is assumed (Crews, 2000).
The Medium Matters
In addition to fair-use tests, educators need to consider that copyright restrictions are usually related to the type of material being used. Some baseline rules can guide us as we further investigate copyright practices for various media in our districts or buildings.
Print materials. Educators may make and retain a single copy of an article, map, chart, or chapter for personal use and use in teaching. We can also make multiple copies (one copy per student) of an article, map, chart, or chapter for students—but only once, and only if permission cannot be obtained in time. Be aware that there may be time limitations on how long you can use copied material. See a standard copyright reference for the many rules. Educators can request permission to make copies beyond the posted limits or in repeated instances. Permission will override standard copyright limits.
Educators or administrators cannot direct their colleagues or staff to make copies of copyright-protected materials. The person making the copies must decide to make the copies. Educators cannot copy the same copyright-protected items from year to year or term to term without permission, charge students for copies beyond the actual cost of making the copies, or copy materials just because the source is out of print. Out of print is not the same as out of copyright. If you cannot locate the copyright owner, look for other material.
Audiotapes and videotapes. You may play video- and audiotapes in a class if they relate directly to the lesson; transfer old beta-format tapes to VHS format because the beta technology is obsolete; and use videotapes and audiotapes owned by the school, teachers, and parents, or borrowed from a library, rented from a video store, or taped off-air (within strict guidelines)—even if the tape says "home use only."
Unless you obtain a public performance license, you cannot play video- or audiotapes for entertainment or reward, such as during recess on a rainy day or after standardized tests to relieve stress. Other restricted activities include playing video- and audiotapes outside of a regular classroom without public performance rights or express permission; making backup copies of video- or audiotapes; transferring 45 rpm records to compact disks or tape (because turntables are still readily available); using videos taped off-air more than 45 days ago; and taping programs from such cable-only channels as the History Channel, A & E, and the Discovery Channel without express permission. Such publications as Cable in the Classroom magazine provide guidance about limited permissions for specific programs. Finally, you cannot broadcast (transmit beyond the local building) any video or audio programming without permission or a license.
Multimedia materials. You may use limited amounts of copyright-protected material in multimedia productions, such as PowerPoint and Hyperstudio, in the classroom. Extensive guidelines explain limits. You may put multimedia projects on a network if you follow certain restrictions.
To use copyright-protected materials in a multimedia production, you must cite sources and show who owns copyright—or keep copies of student projects that use copyright-protected excerpts, even those for which you have the students' permission to use, because students can't give permission for the parts that they didn't create.
Distance learning. You may use nondramatic literary works in distance-learning classes. You cannot use video, film, or plays in distance-learning courses, even when the same use would qualify for a fair-use exemption for face-to-face teaching.
Internet materials. You may use original works by students and faculty, but you must obtain permission to distribute and display the works. You can put links on pages; links are facts, which are not protected by copyright.
You cannot copy another person's Web page, make changes, and then post it as your own. Like any other form of programming, Web programming is protected by copyright. You also cannot post graphics from other sites without permission of the graphics copyright owner or reprint or redistribute e-mail because it is unpublished and therefore highly protected by copyright. Get permission first.
Computer software. You can make backup copies of computer software—even CD-ROMs—and make a single backup copy of computer documentation. You may not network software unless it is licensed for networking and you may not exceed your license limitations for software.
Managing Copyright
As the list above shows, copyright affects many aspects of education. Many schools are at risk for copyright infringement actions because teachers, librarians, and administrators don't know how to minimize their liability.
The first step in a comprehensive copyright management program is to have a school board-approved copyright policy. The policy should establish an atmosphere of expected compliance. To back up that expectation, all personnel who might be involved in intentional or inadvertent infringement should receive training about their copyright rights and responsibilities. Ask participants to sign a form stating that they have attended and understood the training. Principals can analyze and address common practices in their buildings, ranging from showing videos for reward or entertainment to massive photocopying of workbooks.
Keeping awareness of copyright high in the minds of students and personnel is made easier with some simple management tricks. Mark any machinery capable of making copies with a standard sign that states that many materials are protected by copyright law and that the user of the machine is liable for any infringement. Similar notices should be put on computers, photocopiers, overhead projectors, opaque projectors, cassette players, and videocassette recorders. Videotapes with public performance rights should be clearly labeled for use in extraordinary situations that don't qualify for fair use showings.
You may hear that schools are never prosecuted for copyright infringement. Although a given infringement may pass undetected (much like speeding), the more egregious the offense, the more likely it will come to the attention of a copyright holder. Copyright actions against schools are on the rise, and not all are against large school districts. Copyright holders take their rights seriously, and no matter how small the infringement, a copyright owner is entitled to redress. To violate copyright because you have little chance of being caught is legally, ethically, and morally wrong. Students watch and emulate our behavior. We often tell students not to take what isn't theirs without asking first. The same holds true in matters of copyright. Copyright may not be simple or easy, but it is the law.
