Most educators rely upon the creative works of others to facilitate their teaching. An English teacher might, for example, have his class read and discuss a poem. An art history professor might project images onto the screen in front of the classroom. A drama coach might have her students read and perform plays.
But how do these uses of creative works intersect with copyright law, which gives the creators of those original works, including the poet, the painter, and the playwright, the exclusive ability to reproduce their creations? Educators must be mindful of the boundaries of intellectual property law in order to avoid legal liability.
The Copyright Act of 1976 gives creators of original works of authorship a variety of exclusive rights over their creations. For example, under 17 U.S.C. § 106, copyright holders have the exclusive ability to reproduce, perform, and distribute their works.
An author who has registered a work with the U.S. Copyright Office gains the right to sue a third party for infringement in federal court and obtain money damages. So if an author of a novel has a copyright over a book, and someone comes along and photocopies it and begins selling copies, the author can take that third party to court, seeking both monetary relief and a court order that the person refrain from such conduct.
This legal regime can sound frightening to educators, who frequently use the creative works of others in their classrooms. Fortunately, the doctrine of “fair use” creates an exception to the standard liability for copyright infringement for many educational uses of creative works.
Fair use is described in 17 U.S.C. § 107. That section of the Copyright Act says that there's no copyright infringement if the use of the material is fair, in other words "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.”
To evaluate whether a particular usage of a copyrighted work qualifies as fair, a court will consider four things:
Educators, like everyone else in society, are subject to copyright laws. They are not immune simply because they happen to be teachers.
However, because of the nature of their work, educators can often make a good faith claim that their conduct falls within the doctrine of fair use because it is for “criticism,” “comment,” “teaching (including multiple copies for classroom use),” “scholarship,” or “research.” Indeed, the language of the Copyright Act itself clearly contemplated the use of otherwise protected works in the classroom setting.
While this does provide some comfort for educators, fair use has its limitations. Classroom teachers cannot, under the law, simply photocopy entire textbooks for their students. Authors, publishers, and other copyright holders can still sue educators if their conduct does not comport with the fair use factors listed in the statute.
For example, “the amount and substantiality of the portion used in relation to the copyrighted work as a whole” is an important consideration. Does the teacher need to photocopy an entire textbook, or only a single relevant page?
Consider also “the effect of the use upon the potential market” for the copyrighted work. If a teacher hands out free copies of a poet’s poetry, surely that poet is losing substantial revenue (in the form of book sales) as a result.
To avoid accusations of copyright infringement as a teacher, here are some tips: