And who do you think would win if a teacher who coordinated a school’s computer literacy program were sued for loading one copy of a purchased software package into 12 computers for use by her class-- despite a warning in the instructions specifying “one package per work- station’’?
What if a teacher showed students a videotape that contained a warning, “For Home Use Only’’? Or if the library had videotaped the program from a copyrighted television show?
These cases (the first actually happened, the others are hypothetical) illustrate the broad range of copyright issues that an educator often faces in the classroom.
To benefit both the people who come up with new ideas, as well as the people who want to use those ideas, Congress passed the Copyright Act of 1976. It covers original work in various forms, such as literary works (including computer programs), music (including sound recordings), and art (including films and sculptures). The act protects the expression of an idea rather than the underlying idea itself. (In other words, if Louise Marcus’s cake decorating book taught readers how to make glow-in-the-dark icing, the colorful way in which she worded the directions would be eligible for copyright protection, but the concept of glow-in-the-dark icing would not.) The act covers unpublished, as well as published, works. Protection starts as soon as the work is “fixed in tangible expression’'--as soon as a short story is typed onto paper, for example.
When the Copyright Act was drafted, lawmakers recognized that teachers, in their roles as educators, scholars, and consumers, needed special exceptions to restrictions outlined in the law. These can be found in three separate provisions: the fair use, school libraries, and performance rights clauses. This article focuses on the fair use provision as it applies to print, software, and video materials--the teaching tools most likely to be used by a majority of teachers.
The fair use exceptions allow educators to bypass getting permission from a work’s publisher for the purpose of “teaching (including multiple copies for classroom use), scholarship, or research.’' They do not, however, give them carte blanche to copy works indiscriminately. The factors considered for an exemption under “fair use’’ are:
The purpose and character of the use. For example, is it “educational’’ or “for profit’’? Will the author be acknowledged?
The nature of the copyrighted work. Is it informational, such as a pamphlet on the cholesterol content of dairy products, or is it creative, such as an essay on the joy of dessert?
The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
The effect of the use upon the potential market for or value of the copyrighted work.
The application of these criteria varies from one case to another. To help teachers stay within the copyright law, the following general guidelines were devised to offer what August Steinhilber, general counsel for the National School Boards Association and one of the act’s authors, calls “a safe harbor.’'
“Fair use exists beyond ‘safe harbor’ boundaries,’' Steinhilber explains. “But basically, if you follow these guidelines you won’t have anything to worry about. If you want to go beyond these boundaries, talk to the principal or the school attorney.’'
Literary works. A teacher may make single copies of the following if they are to be used in the classroom or for research: a chapter from a book; an article from a periodical or newspaper; a short story, short essay, or short poem; or a chart, diagram, drawing, cartoon, or picture from a book, newspaper, or periodical. If Rowley had made just one copy of her fellow home economics teacher’s activities package, she most likely would not have landed in court.
Educators who want to make multiple copies should consider the following: First, each copy must include a notice that the work is copyrighted. The work must also meet specified definitions of brevity, which generally amounts to an excerpt from prose that is not more than 1,000 words or 10 percent of the work, whichever is less. Spontaneity comes into play, too--for example, when a teacher decides to include a copyrighted work in a lesson but does not have enough time to get the publisher’s permission. Limitations are also placed on the number of times a teacher may make multiple copies of copyrighted materials. The ceiling is nine instances of multiple copying for one course during one class term. Finally, under the guidelines, teachers are not allowed to make copies of works that replace an anthology or substitute for the purchase of books, publisher’s reprints, periodicals, or workbooks and other “consumables’’ or to continue copying the same item from term to term.
Computer programs. Making multiple copies of a single, copyrighted computer program, without the publisher’s consent, extends beyond fair use and is a clear violation of the copyright. “But if a student in an accounting class comes up with a new way to develop a spreadsheet using Lotus 1-2-3, for example, the teacher may make copies of the work so other students can look at and learn from it,’' says Steinhilber. “In this case, [the teacher] is obviously copying the underlying software, but it’s not an infringement’’ because the students will not be working directly from the software as they would be in out-andout program copying.
Videotapes. The Copyright Act contains an exception that allows instructors to show a prerecorded tape “in the course of face-to-face teaching activities,’' even one that carries a “For Home Use Only’’ warning. (Teachers are not allowed to show tapes that they know are pirated.) Likewise, taping a television special to show in class is permissible. A few guidelines do apply, however, to off-air recording by nonprofit educational institutions. Teachers may use the tapes for instructional purposes during the first 10 days after the television show has aired and review them for their educational usefulness during the next 35 days. After that, the tape must be erased or destroyed. Segments of a recorded program may be shown, but they may not be physically or electronically merged with other videotape to create a new teaching material. The odds of a publisher or author going after you for copyright infringement are not high, but you could be taking a chance. The home economics teacher who developed the cake decorating packet successfully sued her rival; the case went all the way to a federal appellate court.
Carol Risher, director of copyright and new technology for the Association of American Publishers, says that “people within a district or a community have called to report violations going on in schools, and we have called [those] superintendents.’' She notes that many administrators are voluntarily coming out with their own policy statements and manuals and holding inservice seminars on copyright law. “Schools are now becoming proactive and are trying to prevent copyright abuse,’' she says, “rather than waiting to be sued.’'
For more information on a teacher’s rights and responsibilities concerning copyrighted materials, send for:
Copyright Law: A Guide For Public Schools, by August Steinhilber. The cost is $10, plus $2.25 for postage and handling. From the National School Boards Association, 1680 Duke St., Alexandria, VA 22314.
Copyright: Staying Within The Law, from the Public Broadcasting Service. Send $7.50 to PBS, Elementary/ Secondary Service, 1320 Braddock Pl., Alexandria, VA 22314.
