DALLAS, August 29, 2013 — As teachers head back to school, many enhance their standard curriculum with examples from literature and pop culture. However, these teachers may be running up against copyright laws in their attempts to help their students.
While there is an educational or “fair use” exception to copyright, the circumstances in which teachers may use copyrighted material is not always clear cut. “Fair use” is a series of standards that has been developed over the course of various court cases, and it requires a certain bit of interpretation.
Most of the material published after 1923 is under copyright protection, but copyrighted materials can be used for educational or “fair” use including “criticism, comment, news reporting, teaching, scholarship, and research.”
The U.S. Copyright Office guidelines on fair use note, “There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.”
Educators must test fair use of material by four criteria: 1. the purpose and character of the use, 2. the nature of the copyrighted work, 3. the amount and substantiality of the portion used in relation to the whole, 4. and the effect of the use upon the potential market for, or value of, the copyrighted work.
By it’s nature, educational use meets the first criteria, but that does not mean any copyrighted material may be used in an educational setting. For example, Dr. Martin Luther King, Jr.’s “I Have a Dream” speech is copyrighted, but teachers may be able to use it under certain restricted circumstances. All material used in the classroom must also pass the other three tests.
The nature of the work being used can affect whether it can be used. Unpublished works are not likely to fall under this category, as the author never granted permission for his work to be published or used in any circumstance. The other part of this test is whether the work is factual or creative. Facts cannot be copyrighted, so those works based primarily on facts are more likely to be able to fall under fair use than creative works like novels.
Length is also a factor in fair use. Portions are more allowable than whole works. Teachers may copy short stories, single chapters or brief poems to distribute to students. They may not, however, create their own anthologies via copying. Educators and institutions have developed clear cut guidelines to aid teachers, such as poems of 250 words or less, or portions of longer poems limited to 250 words.
Finally, the effect on the market of the copyrighted work must be taken into consideration. Classroom use for a limited number of students will not greatly diminish the profitability of a published work, however posting the same material on-line may affect the marketability.
New technologies, including social media, are increasingly a part of education and offer new hazards for teachers and students. American University’s Center for Social Media has set out guidelines and best practices to navigate these new waters.
To be safe, a teacher may attempt to get permission for copyrighted materials or use public domain materials. Materials in the public domain include everything published before 1923 and some items published between 1923 and 1978. Because even anonymous works published after 1978 are copyrighted for at least 95 years, obtaining permission can present difficulties for the average educator.
Educators who wish to avoid the hazards of ferreting out legitimate fair usage aren’t entirely limited to materials published before 1923. More and more creative content is being distributed under open source licensing such as GNU General Public License and Wikimedia Commons.
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