Copyrights are intangible rights granted by the federal Copyright Act to authors or creators of original artistic or literary works that can be fixed in a tangible means of expression such as hard copies, electronic files, videos, or audio recordings. The Copyright Act protects literary, musical, dramatic, choreographic, pictorial, sculptural, and architectural works as well as motion pictures and sound recordings. Each copyrightable work has several “copyrights”—the rights to make copies of the work, distribute the work, prepare “derivative works,” and perform or display the work publicly. Each author or creator may transfer one or more of these copyrights to others. For example, book authors who wish their books to be used in schools sell the copying and distribution rights to publishers in return for royalties gained from book sales. This entry looks at copyright law as it applies to education.
Fair Use Exception
Copyright law protects against unauthorized copying, performance, or distribution of copyrighted works, and the unauthorized creation of derivative works. The Copyright Act imposes several limits on these exclusive rights. Three of theses rights are applicable to educational settings. First, according to Section 107 of the Copyright Act, fair use of a copyrighted work, “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” Fair use balances the rights of the owners and creators of copyrighted works with the needs of those who use such works. If a use is a fair use, then users need not obtain consent of owners. In infringement cases, the defendants generally bear the burden of proof to show that their use was fair. Evaluating whether a use is fair requires the application of four factors, articulated explicitly in the act:
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
- The nature of the copyrighted work
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole
- The effect of the use upon the potential market for or value of the copyrighted work
The fair use doctrine is often applied successfully in schools, because most educational uses are not commercial. However, some guidelines are necessary. According to a report of the Ad Hoc Committee of Educational Institutions and Organizations on the Copyright Law Revision of 1976, teachers may make single copies of the following items for use in teaching or preparation to teach a class: a chapter from a book; an article from a newspaper or periodical; a short story, essay, or poem; and a chart, diagram, graph, or picture from a book, periodical, or newspaper.
Other Accepted Uses
Second, under Section 108, it is not an infringement of copyright for a library to reproduce one copy or audiorecording of a work, or to distribute the copy or audiorecording, if these activities are done without intentional commercial advantage, if the library is open to the public, and if the reproduction includes a notice of copyright. This provision allows libraries and archives to replace lost, stolen, damaged, or deteriorating works and to preserve unpublished works. Libraries in K–12 educational settings are very rarely open to the public. Therefore, in education, this exception will likely apply only in colleges and universities.
Third, Section 110(1) permits teachers and students in nonprofit educational institutions to perform or display a copyrighted work “in the course of face-to-face teaching activities.” Section 110(2), which codifies the Technology, Education, and Copyright Harmonization Act of 2002, permits essentially these same activities in distance education or online environments, but with several additional requirements. First, the performance or display must be at the direction of or under the supervision of an instructor. Second, it must be an integral part of a class session offered as part of the “systematic mediated instructional activities” of the educational institution. Third, the performance or display must be directly related and of material assistance to the teaching content of the transmission. Fourth, the transmission must be available only to those students enrolled in the course and those employed to teach or assist in teaching it. Fifth, the school must implement policies and practices that educate teachers and students about copyright law, and they must apply technological measures that prevent the retention and accessibility of the copyrighted work for longer than the class session. The use granted by Section 110(2) does not apply to copyrighted works produced or marketed primarily for distance education (e.g., distance education courses for sale).
Initially, ownership in a work’s copyright is vested in the authors or creators of the work. Educational institutions, however, may deal with “works for hire,” which are works created by employees within the scope of employment. In such cases, the employer becomes the copyright holder. There is a solid legal argument for a “teacher exception” to the work-forhire doctrine, however (Daniel & Pauken, 1999).
Copyrightable works created on or after January 1, 1978 (the effective date of the Copyright Act of 1976), are protected from the time the work is fixed in a tangible medium of expression until 70 years after the death of the author/creator. If the work has corporate authorship, copyrights last 95 years from publication or 120 years from creation, whichever is shorter. The duration of copyright for works created before 1978 is dependent on several factors. For a chart spelling out the application of these factors, see Gasaway, When U.S. Works Pass Into the Public Domain. Once a copyright term expires, the work goes into the public domain and advance permission to use the work is no longer necessary.
Remedies available to successful copyright infringement claims include injunctive relief, impoundment or disposal of infringing works, monetary damages (e.g., actual damages and lost profits), statutory damages (provided by the Copyright Act and decided by the courts), and attorneys’ fees.
Patrick D. Pauken
- Ad Hoc Committee of Educational Institutions and Organizations on the Copyright Law Revision of 1976. (1991). Notes of Committee on the Judiciary [House Report No. 94–176] (pp. 65–74). Retrieved January 14, 2008, from http://en.wikisource.org/wiki/Page:H.R._Rep._No._94-1476_(1976)_Page_065.djvu
- Daniel, P. T. K., & Pauken, P. D. (1999). The impact of the electronic media on instructor creativity and institutional ownership within copyright law. Education Law Reporter, 132, 1–43.
- Daniel, P. T. K., & Pauken, P. D. (2005). Copyright laws in the age of technology: Changes in legislation and their applicability to the K–12 environment. In K. E. Lane, M. J. Connelly, J. F. Mead, M. A. Gooden, & S. Eckes (Eds.), The principal’s legal handbook (3rd ed., pp. 441–453). Dayton, OH: Education Law Association.
- Daniel, P. T. K., & Pauken, P. D. (2005). Intellectual property. In J. Beckham & D. Dagley (Eds.), Contemporary issues in higher education law (pp. 347–393). Dayton, OH: Education Law Association.
- Gasaway, L. (n.d.). When U.S. works pass into the public domain. Retrieved February 8, 2008, http://www.unc.edu/~unclng/public-d.htm
- National Association of College Stores. (2007). Questions and answers on copyright for the campus community. Retrieved January 10, 2008, from http://www.nacs.org/public/copyright
- Sperry, D. J., Daniel, P. T. K., Huefner, D. S., & Gee, E. G. (1998). Education law and the public schools: A compendium (pp. 191–203). Norwood, MA: Christopher- Gordon Publishers.
- Copyright Act, 17 U.S.C. §§ 101 et seq.