Q: A teacher purchased a commercial film about a recent news event for the library. I watched it before adding it to the collection, and although it is an excellent resource, it drops the “F bomb” several times, so I can’t use it in a school library. I declined the donation. She said there was some kind of software that would take the bad words out. Have you ever heard of this? And if I did go to this trouble to get rid of the language, would it violate copyright?

A: The only legal means to do what the teacher suggests is called Clearplay. The Clearplay technology was approved by Congress in the Family Movie Act. Clearplay requires a monthly subscription and special hardware with an Internet connection. The hardware downloads a file (assuming a file has been created for this specific program) that knows the exact chapter and frame where there is objectionable content. When that chapter and frame arrive, the hardware either mutes the audio or scrambles the video (or both). When the objectionable content has passed, everything returns to normal. Sounds perfect? Well, you must subscribe every month even though you may use the video only one day per year, and Congress approved this technology for home use. But the § 110(1) exceptions could probably be applied if your license to use the subscription files doesn’t preclude use in a school. Remember that license always trumps fair use.

COPYING MATH PROBLEMS FROM OTHER SOURCES

Q: Our math teachers are producing an e-textbook. They are concerned about the implications of compiling copied math problems from other sources during the production of the e-text. Are math problems even protected by copyright? The teachers don’t plan to copy whole sections or pages from any one source, but they may pull problems from a variety of sources. If they do this, is a simple bibliography or reference suitable to avoid copyright infringement?

A: Remember that facts are not protectable by copyright, but the expression of those facts may be protectable, depending on the originality of the expression. Math problems (2+3=5) are not protectable by copyright for the same reason that recipes are not protectable. A list of ingredients and simple assembly instructions is not creative enough to garner copyright protection. A worksheet of simple math problems can have what is known as a “thin copyright” or a compilation copyright for the selection and arrangement of the problems (assuming the worksheet is not all-inclusive of a class of problems). Word problems may be protectable because of the creativity of the expression, just like the narrative portions of a cookbook would be protectable (such as sections describing the history of a particular cuisine or alternative uses of various ingredients). All that being said, it is possible for more than one person to independently create identical or similar creations. If two people stand at the same spot at Disney World and at the same time take a photo of Sleeping Beauty’s castle, their photos will be essentially the same. Nevertheless, each person has a copyright in his or her own photo. Likewise, two teachers may create essentially identical word problems and each would have a copyright in the problem. Common word problems such as “If three turkeys are sitting on a fence, and two more turkeys join them, how many turkeys are sitting on the fence?” may certainly be independently created by two teachers, and each teacher would own a copyright in that expression.

Assuming the teachers plan to build their entire textbook from clips pulled from other sources, as a matter of academic honesty they would want to acknowledge everything they did not personally create. To include someone else’s work without giving credit would be unconscionable, especially in a work destined for student use.

Academic honesty aside, the four fair use factors would apply to the use of material from sources that are still protected by copyright. Your use is presumably nonprofit educational, but does the school plan to sell the e-textbook? If so, that factor may go against the use. Also, factor one considers whether your use of the borrowed material has any “value added.” If the teachers are just reproducing the material, there is no value added—the reproduction is rote. The second factor, whether the work is factual or creative, will depend on which type of math problem you have copied. Creative works (such as narrative word problems) are protected more closely than factual works (like simple math facts). The second factor also considers whether the work is published or not. If the teachers are choosing their excerpts from published materials, this factor may weigh in favor of the use. The third factor is the amount of the work you are borrowing. Taking a single word problem from a math textbook full of such problems would be clearly fair; taking a whole chapter of problems from a textbook may not be, depending on the extent of the rest of the book. The final factor, the effect of the use on the market for or value of the work, is typically analyzed to ask if your use will take the place of the original, in which case an adverse market effect is presumed. If you are using enough of the borrowed math book that someone would not need to purchase his own copy of the original book, then you have copied enough that this factor will go against you.

Finally, because most math has not changed in many years, the teachers could draw from material published in the U.S. prior to 1923. Those works are now in the public domain in the U.S.; they can be used freely. Nevertheless, attribution is still appropriate.

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.