There are limits to how teachers can use others’ creative works in the classroom – even when the materials are shared at the same school.
Our digital culture has made almost everything sharable. This has greatly helped teachers’ ability to find free resources to enhance lessons and engage students. At the same time, it can be hard to know which materials are protected by copyright. Teachers can set a good example for students – and lessen the risk of copyright infringement – by relying on resources that are clearly licensed for common use and by understanding the limits of “fair use.”
What’s the Purpose of Copyright?
Copyright law is designed to protect creative expression. It grants exclusive rights to the person who creates any unique work. Copyright law covers nearly everything that can be seen, heard or touched: images, articles, books, music, movies, plays, and more.
Original authors of a creative work usually retain the exclusive right to do the following:
Copy, print or reprint the work.
Perform it publicly.
Sell or distribute it.
Revise it, arrange it, or transform it.
These rights typically belong to the person who created the content, not anyone who has access to it. Acknowledging the source of the copyrighted material is not a substitute for obtaining the creator’s permission. Someone who infringes upon a creator’s rights can be fined, even if the violation was unintentional. The existence of a copyright isn’t always obvious, so it’s a good idea to research copyright information before displaying or copying work that isn’t original.
Fortunately, open educational resources (OERs) are becoming increasingly available online. Generally, these resources allow teachers to adapt and customize learning materials for their students at no cost and without breaking copyright laws. For instance, students can view and download certain online textbooks for free. Most open educational resources are protected by a Creative Commons license, which governs the conditions under which they may be used. There are different types of Creative Commons licenses. Some allow people to view materials for free, others permit editing, and so on. We’ll talk more about Creative Commons licenses, below.
What do Teachers Need to Know?
Copyright law makes a few exceptions for educators. For instance, it allows teachers at nonprofit schools to “perform or display” copyrighted materials on a whiteboard or at the front of a classroom for the benefit of their students. It also allows teachers to broadcast copyrighted materials under certain circumstances in distance-learning situations. However, these permissions are still limited by the fair use guidelines described below. For instance, a teacher may read a short story aloud to the class, but not photocopy an entire collection of short stories for students' use.
Section 110(2) of the Copyright Act, also known as the TEACH Act, contains more information about how teachers can comply with these guidelines. Read an overview.
What Are the Limits of Fair Use?
The most common exception to copyright restrictions is the fair use doctrine, which is commonly misunderstood. Fair use allows the use of copyrighted material without the author's permission for certain limited purposes such as educational purposes, criticism, news reporting, and research.
Plenty of gray area exists when it comes to fair use because there are no specific guidelines for how much of a protected work can legally be used without permission. Each fair use situation is examined on a case-by-case basis.
If it appears that someone’s use of the work harms the owner's ability to earn income from it, a court may find that fair use does not apply. According to the U.S. Copyright Office, courts generally will consider:
The reason for the use. Use of a work for nonprofit educational purposes, rather than commercial, is more likely to be considered fair use.
The nature of the copyrighted work. If a work is primarily fact based, such as a map, the use of this work is more likely to be considered fair use. On the other hand, use of creative or artistic works, such as music or works of fiction, would be less likely to qualify for fair use.
How much of the copyrighted work was used. Many erroneously believe that if they use less than 30 seconds of music or video they have not violated copyright law. While the more limited the use is the more likely it will be considered fair use, there is no specific amount of a work that is always permitted.
How the use affects the owner’s ability to earn income from the work. If it appears that your use of the work harms the owner's ability to make money, a court may find that fair use does not apply.
Courts will also typically examine whether the original author was credited for producing the copyrighted material. However, simply crediting the original author alone will not protect against an infringement claim.
How to Use Creative Works Legally
The only sure way to avoid infringing on a creator’s rights is to obtain permission before using their work. Some authors grant permission freely. Others may charge a fee or may refuse to let you use their work at all. In addition, schools can use the following avenues to follow copyright laws:
Only use materials that are not copyrighted or are available through a Creative Commons license. Some works are freely available because their copyrights have expired and they are considered part of the “public domain.” In other cases, content is available through Creative Commons licenses, under which artists’ work is more freely shareable. Creative Commons is a nonprofit organization that provides free licenses to promote the sharing and reuse of creative works. It doesn’t collect content or track licensed material. But it does build tools that help people find works licensed under its terms.
Obtain permission from copyright owners. You may be able to locate the copyright owner using the information listed on the copyrighted material. If there is no copyright information listed, contact the publisher directly, since that organization may be the copyright owner. You may also search the records of the U.S. Copyright Office or the Copyright Clearance Center. Although you may obtain permission to use a work without paying a royalty, the process can be time-consuming. Expect to wait four to six weeks for a response from the U.S. Copyright Office.
Stay within “fair use” guidelines. Fair use allows the limited use of copyrighted material without the author's permission for educational purposes. If it appears that your use of the work harms the owner's ability to earn income from the work, a court may find that fair use does not apply.
Buy a blanket license. Blanket licenses allow the use of specific copyrighted work for certain purposes while the license is in effect. The licenses allow organizations to use thousands of copyrighted songs and motion pictures, but they have limits. Be aware of what a license includes before making a purchase. The following licensing companies may be helpful to your school:
Christian Copyright Licensing International: CCLI offers several types of licenses that allow the use of a large catalog of copyrighted music.
Christian Copyright Solutions: CCS has a variety of options for licensing copyrighted music.
Christian Video Licensing International: A CVLI license allows you to show videos from more than 40 studios, including major Hollywood studios and most Christian video producers.
Broadcast Music, Inc.: A BMI license allows organizations to publicly perform musical works. The organization represents approximately 600,000 songwriters, composers and music publishers. The company collects license fees on behalf of those creators. “Public performances” include radio airplay, broadcast and cable television carriage, Internet and live and recorded performances.
The American Society of Composers, Authors and Publishers: An ASCAP license gives you permission to perform any of the works in its repertory. It has a searchable database of its millions of works, along with writer, publisher and recording artist information. It collects license fees and distributes royalties to the creative artists it represents.
Obtain a legal opinion. If your school has any questions about whether a teacher’s use of copyrighted materials is legal or not, it should obtain a formal opinion from a licensed attorney with experience in intellectual property law.
Although there are a few limited exceptions to copyright protection, your school should always investigate the copyright status of any literary, musical, dramatic, or audiovisual works before using them. Simply giving credit to the creator of copyrighted works used in the classroom is no defense against charges of copyright infringement.
The information provided in this article is intended to be helpful, but it does not constitute legal advice and is not a substitute for the advice from a licensed attorney in your area. We strongly encourage you to regularly consult with a local attorney as part of your risk management program.
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