4 Tips to Navigating Copyright Law for Educators

It’s that time when teachers are busy preparing for the new school year. In developing curricula for students, teachers often wonder how copyright law applies to them when they incorporate copyrighted works into lesson plans by having students read certain articles, making copies of reading materials, playing videos or music for students, or reading aloud to students. Here are a few tips to keep in mind to understand how to navigate copyright law for educators.

Tip 1: Use Licensed or Lawfully Purchased Copies for Classroom Use; Otherwise Use Public Domain Works

The best way for teachers and other educators to ensure that they are complying with copyright laws is to use licensed works or to purchase lawfully made copies of a work. Many copyright owners and authorized retailers offer various licenses to accommodate classroom and pedagogical needs, for instance, including an article in a course pack or using works in testing materials. School and public libraries may also have secured licenses which allow students and their patrons to access, read, and learn from a plethora of digital copyrighted works or have loaning systems that allow for the lawful exchange of, access to, and use of such works.

Other kinds of licensed works, like works with Creative Commons licenses, may also be used by teachers for their classroom needs—just make sure to abide by the license terms, which can require attribution to the author or limit other uses. Teachers can also use works that are not protected by copyright law and therefore do not need a license, such as works that are in the public domain including works authored by the U.S. government. (To learn more about how to investigate the copyright status of a work, check out this U.S. Copyright Office Circular.)

Alternatively, teachers can also provide students with links to publicly accessible articles or other copyrighted materials, so long as they make sure that the links direct students to legal digital copies from credible and authorized sources. For example, a news publisher may publish one of its articles on its website that is publicly available, and a teacher can provide students with a link to that article.

Using legal copies of works in the classroom and for pedagogical purposes not only provides copyright assurances for teachers, but it also ensures that students are learning from credible, trustworthy, and verifiable sources and materials. It is also critical for teachers to know where they are sourcing classroom material, since some copyright exceptions, including exceptions for certain classroom uses, including the Technology, Education and Copyright Harmonization Act (TEACH) Act, do not apply when the copy of the work is an infringing copy or otherwise not lawfully made or acquired.

Tip 2: Performance and Display of Copyrighted Works in Digital Transmissions Require Further Care

Exceptions to copyright law, including the first sale doctrine, educational exemptions and the TEACH Act, are found in sections 107, 109, 110, and 112 of the Copyright Act, which outline certain exceptions for the use of copyrighted works for the classroom or for educational purposes.

Before the passage of the TEACH Act in 2002, the Copyright Act generally allowed for teachers and students in face-to-face teaching activities to publicly perform or display a copyrighted work, subject to certain limitations. The TEACH Act amended section 110(2) to expand both the exception and the categories of works that are covered in the digital age, allowing for limited performance and display of copyrighted works by or in the course of a digital transmission (i.e., via the internet) for pedagogical needs.

As noted, there are additional considerations when it comes to displaying and performing copyrighted works in a digital transmission (i.e., via the internet) and these rules apply to:

• the performance of certain literary works, musical works, or reasonable and limited portions of any other works, or
• the display of a work, as it would typically be displayed in the course of a live classroom session.

These digital uses also come with several additional considerations that teachers should keep in mind, including that:

• the performance or display of the work must be supervised by the instructor as an integral part of the class session;
• the performance or display of the work must be directly related and of material assistance to the teaching content of the transmission;
• the work being used must not be typically produced or marketed primarily for performance or display as part of integral teaching activities transmitted via digital networks;
• the work being used must not be a textbook, course pack, or other work that is typically used by students for their independent use/retention;
• any transmission of a work must be limited to students officially enrolled in the course.

Additionally, the school transmitting the copyrighted work must:

• be an accredited, nonprofit, educational institution or government body;
• institute copyright policies that provide materials and accurate information on copyright law compliance;
• provide students with notice that the materials may be subject to copyright protection;
• in the case of digital transmission ensure that:
  • there are technological measures that reasonably prevent permanent downloads or any retention of the work for longer than the class session and prevent further sharing or distribution by recipient students to others; and
  • the school itself must not interfere with technological measures used by copyright owners of the work to prevent such retention or unauthorized further dissemination.

The University of Texas Libraries has a handy TEACH Act Checklist which provides information on copyright law for educators who want to ensure they are complying with copyright laws or are covered by the exceptions detailed above. Educators should also consult with the copyright policies and advisors in their institutions.

Tip: Classroom displays and performances of certain copyrighted works are usually permitted in live, face-to-face classroom settings. In the classroom context, such uses of copyrighted works via digital transmissions may also be permitted under the TEACH Act. However, when it comes to such uses, teachers should keep additional safeguards in mind, like restricting download and sharing capabilities of the materials and limiting these materials to students enrolled in the course.

Tip 3: Fair Use Guidelines for Teachers: It’s a Balancing Act

Most teachers have heard of copyright law’s fair use exception. The fair use exception excuses certain uses of copyrighted works that would otherwise be considered an infringement (i.e., the copyright owners’ rights are exercised without permission, and no other copyright exception, like the TEACH Act, would apply).

Unfortunately, the fair use exception is often misunderstood. The preamble contained in the fair use provision (found in section 107 of the Copyright Act) lists several typical uses that would qualify as a fair use and “teaching” is one such use. However, the mere listing of a type of use, like teaching, in the fair use preamble doesn’t mean that all uses of copyrighted works for teaching will automatically qualify for the exception.

There is no black-and-white rule for determining whether a use qualifies as a fair use. Instead a fair use analysis requires a balancing of four factors set forth in section 107:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. The effect of the use on the potential market for or value of the copyrighted work.

Within each of the four fair use factors, there are additional criteria that courts examine when determining whether a particular use qualifies for the fair use exception. You can learn more about the details of those considerations on our FAQ page.

The main tip is this: there are no black-and-white or definite rules for fair use, and determining whether the classroom use of a copyrighted work qualifies for the fair use exception requires a balancing of all four factors on a case-by-case basis— no one factor controls the outcome. However, here are a couple fair use guidelines for teachers:

• Noncommercial, educational use of copyrighted works may weigh in favor of fair use, as educational uses are listed as an illustrative case of what typically qualifies as fair use— but it is not always the case. If educators typically purchase or license a work (e.g., a textbook) for use in their classrooms, this fact will likely weigh heavily against the fourth fair use factor favoring fair use.

• There are no black-and-white rules in a fair use analysis, so any categorical rules like “Only using 30 seconds or less than 3 minutes of a work qualifies the use for the fair use exception” or “Using less than 20 lines of a work qualifies the use for the fair use exception” are simply not true. Only use what you need of the copyrighted work to carry out your pedagogical needs. Using too much or too many parts (or the “heart of the work”) of the copyrighted work, may weigh against fair use. For example, you may not need to show an entire two-hour movie for students to provide critique or commentary when a shorter clip could easily achieve the same purpose.

• The U.S. Copyright Office has a helpful document, Circular 21, which outlines further fair use guidelines and illustrations that resulted from collaborations of ad hoc committees formed by copyright owners and educators. Those guidelines address classroom copying in not-for-profit educational institutions for books, periodicals, and music and provide further interpretations of the minimum standards of fair use, and includes guidelines like ensuring to limit the number of works copied that have the same author and that copying should not substitute for the purchase of books, publishers’ reprints or periodicals. But again, these guidelines should be used as such for educators in making fair use determinations, and not as definitive, black-and-white rules. Fair use analysis requires a balancing of all four factors.  

Tip: While teaching is exemplary of a use that may qualify for the fair use exception, it does not automatically qualify the use for the exception. Fair use requires a balancing of all four factors, but a few initial considerations may include whether the way the work will be used is typically licensed by educators and whether only the necessary amounts of the copyrighted work relative to the whole work are being used to achieve pedagogical goals.

Tip 4: Educating Students About the Difference Between Plagiarism and Copyright Infringement

At the beginning of the school year, it is also helpful to provide students with a primer on using copyrighted works for school assignments and projects. In the educational context, one of the most important concepts for students to understand is the difference between plagiarism and copyright infringement. Students who understand the differences and recognize the consequences of both will take more away from the learning process and will be able to employ this important knowledge and skill beyond the classroom.

While the two concepts may appear to be somewhat similar, there are significant differences between them. Plagiarism is an important ethical consideration that students should abide by in order to maintain academic integrity and responsibility over the assignments that they work on. Best practices to safeguard against plagiarism including properly citing to and crediting the sources of any material that is not the student’s own. Copyright infringement, on the other hand, is a legal consideration, which occurs when a copyright owner’s rights are being infringed—i.e., a work is reproduced, displayed, a derivative work is prepared, publicly performed, publicly performed without permission.

There may be copyright infringement without plagiarism, plagiarism without copyright infringement, and sometimes, even both. For example, if an entire news article is copied, but the student gives credit to the journalist, that qualifies as copyright infringement, but not plagiarism. On the other hand if a few sentences from that article are incorporated into a student’s report without credit, that may not be copyright infringement, but it is likely to be plagiarism. If the student copies the entire article must fails to give credit, that would be both copyright infringement and plagiarism.

Tip: By passing on knowledge to students of the differences and importance of both plagiarism and copyright infringement considerations, teachers can look forward to fewer unpleasant surprises when reviewing classroom assignments and instill lifelong ethics and skills for students.

Hats Off to the Teachers!

To all teachers gearing up for the new school year, we hope this blog post on copyright law for educators provided some insights and clarity into how copyright law applies in the classroom context and how various pedagogical goals to educate the next generations can be achieved. For more information about copyright law, fair use, and other topics discussed in this blog post, visit the Copyright Alliance’s FAQ pages.

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