Utilizing Copyrighted Items in Your Custom Materials

Posted by Chris Posa on Dec 4, 2020 9:53:30 AM
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Curriculum leaders today are finding that creating their own learning materials is the ideal solution to meet the demands of today’s classrooms, and that including copyrighted items helps increase the quality of those materials. XanEdu Publishing specializes in helping K-12 content creators and educators safely and effectively utilize best-in-class materials.

Creating, curating and delivering the various types of content presents one often overlooked yet important aspect: copyright law.

Most curriculum leaders aren’t familiar with the copyright protections of the materials they compile or the circumstances in which their use is allowed. That can lead to inadvertent violations or the outright avoidance of using what would otherwise be high-quality content. The good news is that with a cursory understanding of U.S. copyright law and its implications and applications, educators can feel comfortable about the content they’re selecting and providing to their students.

As custom publishing experts, we commonly get questions about this important topic. Through our partnership with Copyright Clearance Center, here are answers to the most frequently asked questions.

POLICIES

What are the classroom guidelines?

The classroom guidelines were an attempt to provide some useful, clear guidance as to the minimum allowable copying for educational use under the fair use exceptions. They provide:

Copies for teachers: a single copy may be made of any of the following by or for a teacher at his or her individual request for his or her scholarly research or use in teaching or preparation to teach a class:
  • A chapter from a book;
  • An article from a periodical or newspaper;
  • A short story, short essay or short poem, whether from a collective work;
  • A chart, graph, diagram, drawing, cartoon or picture from a book, periodical or newspaper.
Copies for students:
  • Multiple copies (not to exceed in any event more than one copy per pupil in a course) may be made by or for the teacher giving the course for classroom use or discussion; provided that:
  • The copying meets the tests of brevity and spontaneity as defined in the guidelines;
  • Meets the cumulative effect test as defined in the guidelines; and,
  • Each copy includes a notice of copyright.

What is the TEACH act?

Signed by President George W. Bush on November 2, 2002, the Technology, Education, and Copyright Harmonization (TEACH) Act was the product of discussion and negotiation among academic institutions, publishers, library organizations and Congress. It provides additional copyright exceptions for use of certain materials in distance learning, subject as well to certain compliance obligations necessary to avail oneself of the exceptions. For example, in order to avail itself of the TEACH Act, an institution must have implemented a reasonable copyright compliance policy. More information about the TEACH Act can be found here

FAIR USE 

What is fair use?

In the U.S., “fair use” is the primary exception applicable to reuse of textual copyright materials without the creator’s consent. It is an affirmative defense. In other words, it is a legal defense to engaging in an activity that would otherwise be infringing. Determining whether a particular use is fair use is fact-dependent; and the same activity can be a fair use or not based on the context of the use or the identity of the user. For example, when a student photocopies a newspaper article for a homework assignment, it is almost certainly fair use. A teacher might also photocopy a recent article for her class under fair use, but if she asks for those copies to be made by a for-profit copy shop, the landscape shifts. The copy shop is likely to need a license because they’re a third party business that would be profiting from the creator’s work. If the article becomes part of a required curriculum for the school district, permission for that wide use by students and faculty is likely to be needed. And if it becomes required curriculum year after year, the licensing requirement is even stronger.

How do I determine when a use is fair use?

Under the fair use doctrine, someone can ordinarily reproduce limited portions of a work for purposes such as commentary, criticism, news reporting, and teaching. However, there are no fixed rules that say that the use of a specific number of words, a certain number of musical notes, or a certain percentage of a work, is automatically a fair use. Everything is determined on a case by case basis.

Because fair use is a legal defense for engaging in an activity that would otherwise be infringing, one should review the four factors courts look at in determining whether to apply fair use to an infringement. These four factors are:

  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 upon the potential market for or value of the copyrighted

Please note that no one of these factors is determinative of fair use; the judge has to analyze all four factors individually and then together, possibly giving them different weights depending upon the circumstances, in order to reach a conclusion that a use was or was not a fair use.

As the U.S. House of Representatives indicated in its report on fair use and classroom reproduction, uses are more likely to be fair if they are brief, non-systematic and spontaneous. Regular, repeated uses in classrooms, and required reading for standard curricula, typically require permission. More information about this issue can be found in a helpful document from the U.S. Copyright Office entitled: Reproduction of Copyrighted Works by Educators and Librarians.

How is fair use impacted by the COVID-19 pandemic?

When the pandemic first emerged and schools were no longer able to conduct on-site teaching, many educators were forced to begin remote teaching with almost no notice. Because of the spontaneous nature of this emergency, it would have been difficult for teachers to obtain all the permissions necessary to use remote learning content. This unique spur-of-the-moment scenario weighs heavily in favor of the fair use exception. That said, many publishers were quick to support teachers and districts by granting no-cost broad licenses, so they didn’t need to worry about permissions or fair use.

 

As the circumstances of this pandemic become more normalized and remote learning becomes more planful, fair use analysis factors will likely return to pre-COVID conditions. Educators will no longer be able to rely on it the same way they could in March 2020. Going forward, policies will need to be set more methodically at a district level so it’s clear to teachers how and when they need to obtain permissions.

 

TEACHER-CREATED MATERIALS

 

If a teacher creates a curriculum, is it really owned by their employer (the school)?

 

A work created within the scope of employment is typically owned by the employer. However, in an academic setting, districts will often set a policy setting forth rules on ownership of curriculum. In such a case, teachers should refer to that policy.

 

Does a teacher own the rights to the content he/she created outside the school day?

 

Under copyright law, works created outside the scope of employment are owned initially by the creator. However, teachers should always refer to the district’s policy.

 

OBTAINING PERMISSION

 

How do you get permission to use copyrighted works?

For text, copyright permission can typically be obtained through an author, her agent, or her publisher. Many rights can also be obtained through reproduction rights organizations (RROs) such as Copyright Clearance Center (CCC). Custom publishing providers such as XanEdu Publishing will typically handle permission needs on your behalf, for both print and secure digital use. Some materials, such as Open Education Resources, are sometimes published under a so called “open license,” such as those promoted by Creative Commons. These materials can be used under the license terms without seeking specific permission.

 

Whether materials are used by individual permission or under Creative Commons license, it is important to maintain good records of the source and permissions. Failure to do so can create liability and compliance headaches and can also cost districts extra money if they pay for something more than once.

If a creator has been deceased for a long period of time, how do you get permission to use their works?

When a creator dies, copyright is transferred to their heirs. The process of obtaining copyright for works of a deceased creator is the same as if they were alive. Permission for text works can typically be obtained through an agent or publisher. Many rights can also be obtained through reproduction rights organizations (RROs) such as Copyright Clearance Center And XanEdu Publishing.

Is acquiring verbal permission sufficient?

Under copyright law, non-exclusive permission does not need to be in writing. With that said, because of liability issues, you should always carefully document any permission you obtain, even if it is not written. That could simply mean writing a note that documents who you spoke with and exactly what they said regarding permissions. It’s also good to confirm by email or other means, if possible.

BOOKS

If teachers read books aloud during remote learning, is that covered by fair use?

Under the Copyright Act, performance or display of a work (other than an audio-visual work) by instructors or pupils during face-to-face teaching activities is non-infringing. The TEACH Act sets forth the rules regarding when it is allowed in the context of distance learning.

During remote learning, are teachers allowed to record themselves reading books or do they have to be read live for students in order to not infringe on copyright?

Generally speaking, when you record something, it often makes it more likely to require permission. But it depends on a host of accompanying factors. In some cases, recording book readings might be fair use and in others it might require permission. The TEACH Act is generally confusing on the topic of recording and storage. This is one of the many reasons it’s so important for districts to have comprehensive guidance for teachers on what is and isn’t allowed. Best practice is always to reference your district policy and follow the guidance set forth.

If a school has a hard copy of a book for each student and the teacher wants to copy text so the kids can write on it, is that permissible?

Under copyright law, owning a physical book does not give you the right to make copies of the book. Thus, a fair use analysis would need to be conducted. The purpose of the use is to avoid the need to buy new books, the fourth fair use factor will weigh heavily against fair use.

LMS'S AND LINKING

Is it okay to use a link to the original source within curricula without infringing copyright?

It depends. If the link directs users to a legitimate, non-infringing copy of the work, it’s allowed. But you may not link to online content if that copy is infringing. While it is not always easy to tell the difference, legitimate sites will typically have a connection with the creator or the copyright holder. For example, a New York Times article on the New York Times website is going to be lawful, while the same article on a file sharing site or random website is likely to be infringing.

If you post a link to a work within your LMS for students to access-rather than a pdf of the work-is that copyright infringement?

It depends. If the link directs users to a legitimate, non-infringing copy of the work, it’s allowed. But you may not link to online content if that copy is infringing. Again, look to the legitimacy of the site to determine the difference.

I understand that posting copyrighted material to your school’s LMS without permission puts the school at risk. But if the teacher gives credit to the creator (i.e. including in-text citations and a references or works cited list), is it allowed then?

No. Giving credit is not a substitute for permission.

IMAGES AND VIDEO

Do you need to get permission to use a YouTube video of the author reading the book?

It’s best to provide a link to the video.

Can I reuse images I find on Google?

Images on the web are protected by copyright, and photographers are known to be active in protecting their rights. Images will often have licensing information, photo credit, or some way in which the image copyright owner can be contacted for permission to reuse. Unfortunately, many people reuse photos online without permission, and remove ownership and licensing information. As such, you cannot rely on the absence of licensing information as an excuse to use.

Can I reuse images I find online with Creative Commons licenses attached?

If the photographer/copyright owner is the one who applied the Creative Commons license, you can use it according to the terms of the license. However, it’s important to note that there have been numerous instances of someone other than the copyright owner attaching the Creative Commons license, in which case, the license is most likely not valid, and the use is not permissible.

We’ve Got Your Back

Copyrighted materials are frequently some of the highest-quality content available to support your students’ learning needs. We certainly encourage you to utilize them as a critical component of your curriculum. But you should also work with a partner who is well-versed in procuring the proper permission to use your desired materials in the manner that’s most appropriate for your goals.

Let XanEdu Publishing relieve the burden of time required to obtain usage approval and eliminate the risk associated with improper reproduction. XanEdu will work to get it right the first time, saving you time and money.

If you’ve questions about the materials you’re currently using in the classroom, we are available to review and identify content that likely needs copyright approval. Email k12@xanedu.com for a consultation.

 

Topics: K12

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