Q: The “flipped classroom” concept is an important issue in our school district. One of the business teachers at my high school is concerned about copyright issues using the flipped classroom model. The teacher has posted content from a published workbook on her webpage so that students can complete the exercises online, using Excel. I have copied her questions:

How can teachers go to a flipped classroom format as advocated by the district, taping lessons—especially when lessons are based on a textbook—and make them available to students? Space provided by the district and ways to distribute those videos for students to view outside of the classroom is limited. For example, I could probably lock my entire Google site where my webpage currently resides. Would that be sufficient to keep it out of the public domain and not violate the text copyright?

Even though the intention wasn't to circumvent paying for the use of the workbooks, I probably pushed it more than anyone else; but the material is the standard for CPAs to use. Other results were that students learned how to use a new tool, and their work time decreased because they typed instead of handwrote (made it easier to read) and used Excel to calculate for them. I am certain the publisher wouldn't see it that way. One idea we had talked about was purchasing the workbook, using paper and pencil for the first half of the year, then switching to Excel. In a way, a new workbook purchase every year might be the only way to comply with copyright!

My initial response was that her procedure did not meet fair use since it could substitute for the purchase of the workbook, but I know that the TEACH Act makes some provisions for online access. Can you please clarify this for us?

A: You are correct that the TEACH Act will control our analysis of this use. The TEACH Act would generally allow the teacher to make a video of the teacher teaching the content based on a textbook or any other source. However, the TEACH Act prohibits material being posted on an open website. You lose the copyright exemptions provided by the TEACH Act if the materials are not behind some access restriction. 17 U.S.C. § 110(2)(C)(i). The problem with having the site on Google is that to take advantage of the TEACH Act exemptions requires that those storing the copyrighted works used in teaching— meaning the technology folks who mount the webpage—must apply certain technological measures to prevent the retention of the copyrighted material in “accessible form” for longer than the class session, and to prevent unauthorized further dissemination of the copyrighted material. 17 U.S.C. § 110(2)(D)(ii)(I). Q: The “flipped classroom” concept is an important issue in our school district. One of the business teachers at my high school is concerned about copyright issues using the flipped classroom model. The teacher has posted content from a published workbook on her webpage so that students can complete the exercises online, using Excel. I have copied her questions: How can teachers go to a flipped classroom format as advocated by the district, taping lessons—especially when lessons are based on a textbook—and make them available to students? Space provided by the district and ways to distribute those videos for students to view outside of the classroom is limited. For example, I could probably lock my entire Google site where my webpage currently resides. Would that be sufficient to keep it out of the public domain and not violate the text copyright? Even though the intention wasn't to circumvent paying for the use of the workbooks, I probably pushed it more than anyone else; but the material is the standard for CPAs to use. Other results were that students learned how to use a new tool, and their work time decreased because they typed instead of handwrote (made it easier to read) and used Excel to calculate for them. I am certain the publisher wouldn't see it that way. One idea we had talked about was purchasing the workbook, using paper and pencil for the first half of the year, then switching to Excel. In a way, a new workbook purchase every year might be the only way to comply with copyright! My initial response was that her procedure did not meet fair use since it could substitute for the purchase of the workbook, but I know that the TEACH Act makes some provisions for online access. Can you please clarify this for us? jjj Copyright Questions of the Month FLIPPING A COPYRIGHT ANALYSIS By Carol Simpson In looking carefully at your question, however, I see that we are talking about a published workbook. Without seeing exactly what the content might be, it is difficult to give an exact answer. The TEACH Act allows “display of a work in an amount comparable to that which is typically displayed in the course of a live classroom session.” 17 U.S.C. § 110(2). So the teacher could certainly display the content from a workbook page and discuss or comment on the content. So, for example, if the workbook page reproduced one of the CPA standards, and the teacher in the video discussed the standard, there is probably no issue. If, however, the workbook page was some type of accounting problem (more than just a blank accounting form), and the teacher asked the students to download the reproduced material and solve the problem(s) from the workbook page(s) using Excel, we certainly have to address the issue of reproducing consumable material.

Remember that the right of reproduction includes copies made in print and in phonorecords. Copies do not have to be exact to be considered copies, nor do they have to be in the same medium. So just because the teacher translates the workbook page into an Excel spreadsheet doesn't mean she has not copied the original work. Your question doesn't state, but I will assume that each student has not purchased a copy of the workbook being used. If the students had purchased a workbook, there might be a much better fair use argument that this use has no economic effect on the copyright owner (factor four in a fair use assessment). The work is likely at least mildly creative since it is some form of educational exercise and not just a set of tax tables. That fact would disfavor the use under factor two. The use of the work is for nonprofit educational purposes (a good thing), but the reproduction of the works appears to have no transformational value (a bad thing), yielding a neutral factor one. Factor three, the amount of the work used, is not stated. If we are talking one problem from a workbook, this factor is probably favorable to fair use; if we are talking enough pages that the student would not need to purchase the workbook, the analysis would strongly disfavor a fair use claim. The use probably falls somewhere in between.

Just about any infringement can be justified to have positive results for the infringer (no handwriting, easy calculation, etc.) But the effect on the copyright owner, who has primary control over the work, cannot be ignored.

Every effort is made to provide accurate, up to date information in response to copyright questions. However, this column is not intended to take the place of legal advice. For more information, consult your school district's attorney.