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Increased access doesn’t have to mean increased risk

With digital content so easily available, it’s important for educators to understand common misconceptions about copyright law and fair use.

 

“I’m an educator so it’s fair use.”

Educators are granted some flexibility in using copyrighted content for education purposes. But the flexibility is limited and determining that fair use can be a challenge.

Although Section 107 of the Copyright Act includes teaching, scholarship and research, along with making “multiple copies for classroom use,” as among the uses of copyrighted works that may qualify as fair use, they are not automatically qualified as a fair use. There are four guidelines that can help determine if your use of copyrighted materials will be protected by a fair use defense.

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
  2. The nature of the copyrighted work (literary work, work of non-fiction, poem, etc.).
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
  4. The effect upon the potential market or value of the copyrighted work.

It’s also important to understand that no one factor alone determines the right to use a copyrighted work without permission.

“It’s old, so it must be in the public domain.”

Not necessarily. Public domain is generally determined by the copyright date in conjunction with the life of the author.

Here’s a general guideline:

  • For works created prior to 1923, most are in the public domain.
  • For works created between 1923 and 1978, copyrighted works are protected for anywhere from 28 to 95 years.
  • After 1978, copyright lasts for the life of the author plus an additional 70 years.

“As long as I acknowledge my source, I can use any content in my classroom.”

Including attribution in a work (for example, putting the author’s name on it, or origin website URL) does not eliminate the need to obtain the copyright holder’s consent for use. To use more than brief quotations from copyrighted materials lawfully, you generally need to secure permission from the respective copyright holder or their agents.

“I posted it to an internal CMS for our teachers only.”

Distributing copyrighted content by posting it to an internet site is no different than photocopying it for every employee. Such broad distribution throughout your institution would likely require permission from the copyright holder or its agent.

“The author said I could use their material.”

Authors often times sign their rights over to their publishers for their content and no longer are the actual rights holder. The publisher would be required to provide license to the materials to ensure appropriate use and approval.

“I found it on a website, so I can reprint or share it.”

Even content posted on public areas of a website is protected by copyright, just as is printed content. Even if a site encourages you to forward their content to others through a mechanism they provide (which retains their advertising, branding and the like) that does not mean they are allowing other uses.

“I have the print license, so I’m going to email/post it too.”

Most copyright holders license content based on format and type of use. Before changing the format (for example, by scanning from paper to electronic), check your license agreement carefully. You may have to acquire additional permission to create electronic copies or to distribute that content electronically. Copyright law is the same for websites/blogs as it is for other original works. Posting it to these sites is broad distribution and likely requires permission.

“I contacted the copyright holder, but she never got back to me.”

When requesting copyright permission it is important to note that a lack of response from the copyright holder does not, under U.S. law, negate the need to obtain permission. In addition, some works may contain
materials—text, images and graphics—from multiple copyright holders and may require different authorizations depending upon what element or set of elements you wish to use.

“My school has a subscription, so I can send students readings.”

Maybe not. Reuse permissions included in subscriptions vary widely, and where reuse is licensed many licenses limit distribution. Check your subscription carefully before sending content. You may need to acquire additional permissions or purchase a digital or print reprint rights to do so.

“No one’s going to find out/How much trouble could I really get in?”

Copyright protection exists to help our community and content creators. It is meant to encourage the development of new and creative works that spur innovation and new ideas. Failure to follow copyright law infringes on the legal rights of the copyright holder, and could put you and your institution at risk. The copyright holder may sue for compensation (and an injunction). In the United States, court-ordered compensation can range, depending on willfulness, from $200 to $150,000 for each infringing copy. You may also be criminally liable if you willfully copy a work for profit or financial gain, or if the copied work has a value of more than $1,000.

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