Staying on the Right Side of Copyright in Education

Your district may be breaking copyright laws and not even know it. Here's how to protect yourself from liability.

• By Justin Bathon
• 01/06/14

Many of your students are criminals. Some of your teachers may be as well.

Because of the perverse nature of modern copyright law in the United States, few of us in the education system can get by without, at least on occasion, infringing the rigid rules of copyright. By nature, children and educators want to share with each other. Unfortunately, that often works against us. Making a copy of a digital file has never been easier, but at the same time that content has never been more protected.

Schools and educators are naturally vulnerable when any of these laws are broken. Fortunately, by following a few simple guidelines, schools can protect themselves and help ensure they'll come out on the right side of any copyright-related litigation.

A Primer on Copyright
Today's copyright law protects works for 70 years after the death of the author, or longer (up to 120 years) if the work was done for a business or school. To put it simply, the small bit of PHP script that you might have written for a school application earlier this year is protected under the school's ownership until 2108--at least. When you share that script openly without the school's permission, you're likely violating the school's copyright interest in that work.

Luckily, not all works fall under copyright protection. While a standard copyright statement is the default protection for newly created work--such a statement typically appears automatically on websites, for example--authors can choose to release their work to the public domain through a free-to-use license (commonly known in the tech world as "open source"), or they may choose a different form of protection more catered to their particular interests.

The Creative Commons method of protecting authorship rights falls between open source and full copyright protection. Using the Creative Commons license, an author can choose to seek attribution, limit modifications, prohibit commercial uses, or demand that others similarly share any work derived from the protected material. For schools, these options provide useful ways to share their own work but also convenient ways to avoid copyright violations in work produced by their teachers and students. It is important to remember, though, that these alternatives are only opt-in presently. It is up to the user to understand the specific license on any work before making copies.

While these alternatives are useful, their application is still very limited. Standard copyright protection still applies to the vast majority of books, videos, images, and software--virtually all the content that schools use to aid in teaching. Some flexibility on copyright has been provided over the years, and schools have benefited in two distinct ways. First, the doctrine of "fair use" covers the broad flexibility offered to journalists and educators. Copyright law now codifies a four-part test that has been developed through court challenges to copyright. The commercial purpose of the use, the nature of the work, the amount copied, and the market effect are balanced to determine whether fair use applies.

These elements of the broader copyright test should be guiding principles for schools, as they can always serve as a shield to potential copyright violations. But even within these relatively simple criteria, the situation in schools can quickly become complex. Because of the problematic nature of copyright in schools, Congress has actually used a back door to provide additional guidance for educators. Congressional testimony in the 1970s, which has been published by the US Copyright Office as educational guidelines, is fairly specific--though at times arguably arbitrary. Schools, though, have translated these guidelines into local copyright policies that can be extremely specific.

For instance, Omaha (NE) Public Schools' copyright guidelines permit the use of only 250 words from a poem, 1,000 words from a book, three minutes of a video, 30 seconds of a song, or five images from a collective work. These local copyright policies have been known to stretch on for pages, though, and in this ever-changing digital environment, trying to guess at every potential copyright opportunity is becoming impossible. Nevertheless, both fair use and the educational guidelines do provide some flexibility to schools in using copyrighted material.  

For technologists, though, the analysis does not end with the Copyright Act. Congress has also passed laws on interacting with new digital technologies. In the Digital Millennium Copyright Act (DMCA), Congress provided some protection to service providers when users of their networks commit copyright violations. This law protects a school against liability from violations committed by students or teachers. To receive protection under this act, schools must comply with a list of requirements, such as developing a policy and complying with both "take-down" and "put-back" notices. Oakland Schools in Michigan provides an example of a school policy on DMCA. If your school does not currently have a DMCA policy, you should adopt one and follow the requirements to take advantage of the protections afforded by this law.

Congress has also passed some guidance and protections for schools as they move toward online teaching and learning. In the Technology, Education, and Copyright Harmonization (TEACH) Act of 2002, Congress provided flexibility in the temporary storage and dissemination of copyrighted materials for distance learning. Essentially, the issue is that much teaching in the classroom relies on copyrighted material, but the teaching itself does not create an actual copy (and thus does not violate the law). A teacher passing a legally obtained book around the class, for instance, is relying on a copyrighted work but is not making a copy. A similar activity from an online teacher, though, would result in a copyright violation, since many online teaching platforms rely on the uploading--and thus, copying--of files. The TEACH Act provides the online teacher with the same general ability as on-site teachers in showing copyrighted information in very limited circumstances.

6 Tips for Staying Copyright Compliant
The vast majority of copyright violations go unnoticed and unprosecuted. There has only been limited litigation against educational institutions for copyright violations and, generally, cases have more frequently been brought against colleges and universities. However, the Copyright Act is law, and to ensure not only compliance for your school, but also your students, you cannot ignore it. Some practical tips for school officials to consider in complying with copyright include the following:

1. Create clear policies that provide broad coverage. Instead of a 20-page copyright policy, a short, but broader, policy demanding compliance from teachers and students can be more effective in actually limiting the initial violations. The University of Rhode Island provides a model policy that strikes the right preventive tone.
2. Guide students and teachers on how to obtain legally permissible materials online. The Creative Commons license has been a tremendous boost to educational institutions, and there are search tools that can help you find usable materials. Schools should considering promoting Creative Commons to teachers and students.
3. Pay special attention to online learning. While the TEACH Act does make teaching easier online, it does not necessarily make sharing readings or other documents easier. Making PDF copies of readings for uploading is still likely a copyright violation.
4. Take note of any open source software use. Technical staff, when using open source materials such as Linux or Apache, should make explicit note of this software. As administrators are less versed in these platforms, they need to know that the school is protected should copyright litigation ensue. This is a particular concern when the technical staff that originally used the platforms no longer work for the school.
5. Understand your district's ownership rights for work created in-house. Think back to the PHP script example mentioned earlier. In general, you may rely on a default policy that permits sharing of any work created in the district, with a clause that allows you to lock down a particular piece of work upon notice.
6. Avoid copying any materials specifically created for the educational market. Any substantial copying of textbooks, educational software, classroom posters, or other educational product likely will not be considered fair use. This is the most likely instance in which a school or school official may be sued or prosecuted.