by Carol Simpson, April 2017

Q1: A teacher in my school found entire books published on the web in PDF format. They are not pre-1923 books and they are still under copyright protection. A couple of these books were posted by school districts! He plans to share these links with his class. How are they getting around copyright law?

Q2: Our English department purchased anthologies for each student, but because they were large and heavy, one of the teachers abridged Beowulf from the anthology. She sent the abridged version (54 pages) to the students to print out for themselves. The Beowulf was not original; it was a modern (post-1923) version. The department's rationale is that the school purchased the books so they should be able to make copies and selective abridgments. Opinion?

A: I include these two questions because they both have a basis in print, but technology enters the picture. The insertion of technology sometimes confuses educators about how to analyze the root questions. I'm going to go through a fair use analysis and show how each can be devolved.

There are four factors in a fair use defense. You don't need to succeed on all four factors, but you should have a great argument on at least two or a good argument on three or more.

The first factor is the purpose and character of the use. The statute gives us some examples of some types of use that are generally (but not always) considered indicative of a fair use, such as criticism, commentary, news reporting, and nonprofit education. Both these uses are arguably educational. One aspect of this factor, not written in the law but evolving from court decisions, is whether the use is transformative. Transformativeness means the "value added" to a work by the use. When a use is a rote copying, there is no much of value that is added, at least not compared to a use in a parody or satire. Q1 is rote copying, so this factor is not strongly in its favor. Q2 might have a value added in the abridgement, but not as much as if it were a translation or adaptation into reader's theatre, for example.

The second factor is the nature of the copyrighted work. Works that are creative are highly protected. Both these uses are of creative works, therefore any unlicensed use will fail on this factor.

The third factor is the amount of the work used. The more of a work you use, the less likely the use is fair. Note that the "essence" of a work is considered to be all of the work. Uses in both questions appear to fail this factor.

The fourth factor is the effect of the use on the potential market for or value of the work. That's a subjective standard, by any measure. One court explained that if the new work could replace the original, there is an effect on the market. Questions of fact play in here, such as are any of the works available for purchase or license? We know the work in Q2 is available for sale or license, because that is how it got into the textbook, so this use will likely fail on factor four. We don't know about the works in Q1 since we don't know which works are presented. I will say that I have represented clients who have received cease-and-desist letters for posting links to other districts' website postings of infringing materials. If the school making the link (even though they didn't post the actual works) knew the links were infringing, there could be a good case made for vicarious liability or contributory infringement. And even if this factor favored fair use, which I doubt, all four factors must be considered. Is there a good argument for three of the factors, or a great argument for two?

This column is designed to provide accurate and authoritative information regarding application of copyright law in schools. Nothing in this column is intended to constitute legal advice, and nothing herein should be considered legal advice. If legal advice is required, the reader should consult a licensed attorney in his or her own state. Neither ABC-CLIO, LLC, nor the author makes any warranties or representations concerning the information contained in this column or the use to which it is put.