by Gretchen McCord, September 2015

Q:  Does my school, or school district, need a copyright policy?

A:  A "policy" is whatever you make it, so writing or updating a policy gives you the opportunity to create a tool that will be valuable for your entity. Having an appropriate policy (including procedures) reduces confusion, increases consistency across the organization, maximizes the use of resources (both monetary and human), ensures compliance, and helps protect the school or district’s intellectual property and rights. 

In addition to the practical benefits, having (and following!) policies also provides some legal benefits. An educational institution must have a copyright policy if it wishes to rely on the TEACH Act. Following a policy can help support a claim of "innocent infringement" under Section 504 of the Copyright Act, which states that an employee of a nonprofit educational institution acting within the scope of employment who infringes copyright by making copies but has "reasonable grounds" for believing the use was fair cannot be charged with statutory damages.

Q:  When can I show a movie to a class?

A:  This is the single most frequently asked question we get from K-12 educators. The quick answer: When showing the film is directly related to the curriculum.  

Section 110(1) of the Copyright Act says that a protected work may be displayed or performed by a student or teacher "in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction."

The House Report accompanying the Copyright Act specifies that Section 110 specifically does not cover performances made for "recreational or entertainment" purposes, regardless of "cultural value or intellectual appeal."

Q:  How much of someone else's protected work can I copy and include in a website for a class?

A:   No law or regulation specifically governs this situation. Regardless of what type or level of class the website serves, you must depend on the doctrine of fair use, which must be analyzed on a case-by-case basis.

You must take into account the four fair use factors dictated by the Copyright Act: purpose and character of the use you are making; nature of the work you are using; amount and substantiality of the portion used; and effect of the use on the potential market for the work.  For more on fair use, see Bare Bones of Fair Use .

The ultimate decision of whether to use a work is a risk-assessment decision, based on a combination of the following considerations:

• Legal: Likelihood that the use will constitute fair use and the corresponding legal risk
• Pragmatic: Practical issues, such as likelihood that the copyright owner would object to the use
• Cultural: Your institution's level of risk tolerance

Q:  When can I digitize analog copyrighted works, such as VHS tapes?

A: The Copyright Act specifically allows for digitizing print or audiovisual works in certain, limited circumstances:

Section 108(b) and (c) allow a library or archives to make up to three copies for archival purposes, but only if an unused copy (regardless of format) cannot be obtained at a "fair price" and digital copies are not made available outside of the premises.  

Part of the TEACH Act, codified in Section 110(2), allows making digital copies of either digital or analog works for purposes of use in distance education, but again, only under limited circumstances.  (For more, see Copyright Crash Course: The TEACH Act.)

Section 121 allows making digital copies if the sole purpose is for use by the blind or otherwise disabled and certain other conditions are met.

In almost any other circumstance, you would have to rely on fair use to be able to make digital copies of a protected work without first obtaining permission.  (See Bare Bones of Fair Use.)

Q: What are the fair use limits for situations commonly encountered in K-12?

A:  Fair use does not have specific limits.  It is an intentionally flexible doctrine that can be applied to any situation and must be analyzed on a case-by-case basis.  There are no black-and-white numbers or other limits under fair use.  Some people are frustrated by this; however, the flexibility of fair use is actually what makes it such a very strong and important doctrine for librarians and educators.  The purpose of fair use is to allow uses that would otherwise constitute infringement when allowing the use goes further towards meeting the goal of copyright law (promoting the creation of new works) that would disallowing the use.

This means that you can use fair use as a tool of empowerment rather than limitation!  Rather than asking “Is what I want to do a fair use?” ask “How can I tweak my use to increase the strength of my fair use argument?”  Consider the four fair use factors and think of what you can do to better position yourself to argue fair use.  (See more at Bare Bones of Fair Use.)

Q: What should I do if a teacher wants to do something I’m sure is not allowable under copyright law, including fair use, but my principal backs her up?

A: This is a tough question, but, unfortunately, one I hear regularly.  Ultimately, you may have to make a very difficult choice, but the following may help you sway the principal:

• If your policy addresses the issue, point the principal to your policy.  If it does not, consider amending your policy.
• Explain to your principal that, as an information professional, you are knowledgeable about copyright law.
• Suggest that the principal consult the district’s legal counsel, since this is a potentially serious legal issue. 
• Offer to help the teacher find another, non-infringing way to meet her needs.
• Explain that you are trying to protect not only yourself, but also the district, and the other individuals involved.
• Point out the potential penalties for infringement and that both the district and the individuals involved could be held liable.

Q:  How does fair use apply to licensed works, like ebooks?

A:  A license is a type of contract, which is a private agreement in which each party agrees to give up something to which he has legal rights in exchange for receiving something he wants from the other. That means that the terms of the license control your legal rights, limitations, and responsibilities regarding whatever is addressed by the license. The law comes into play only if the license does not address a particular issue or situation.

A license may or may not specifically mention fair use, but if it prohibits you from engaging in an activity without making an exception for fair use, you have agreed to not engage in that activity. If the license specifically states that it should not be interpreted to prohibit fair use, then you have all the fair use rights you would otherwise. If it does not address your use, then that use is not governed by the license, so you can rely on the law (fair use).

The above may sound simple, but any portion of contract must be read and understood in the context of the entire document.  If you are not certain, or if you are uncomfortable with your ability to interpret the terms of the license and how they relate to each other, you should consult with your institution’s legal counsel or other designated person.