Teachers can break a law and get away with it. Sometimes. What otherwise would constitute copyright infringement, which occurs when someone violates at least one of the rights bestowed to a copyright owner, is permissible for teachers in certain situations. The problem is that teachers may not know if their use of materials like worksheets or book and movie supplements in the classroom fit within what is permissible such that they are in the clear.
My Time as a Former Teacher
Before law school, I was a public high school science teacher. During the onboarding process, I filled out many forms. Among those was an Acceptable Use and Technology Agreement form. Contained within it was the provision: “I will adhere to all applicable copyright and software license agreements that forbid downloading of media and software that has not been legally acquired.”
Did I know what that meant? Partially. I took a singular undergraduate course on emerging technologies and intellectual property (“IP”) protections. So, was I an expert? No. But I knew a little something about copyright law, which is a subset of IP law that gives creators exclusive rights over their original works of authorship, such as books, movies, and art.
I, however, did not know what would constitute infringement particularly within the educational setting. I experienced no schoolwide staff training regarding copyright law. No online resources were distributed. I relied on my own research via internet searches in determining what materials I could use to supplement my courses and how I would use them.
Movie Mondays = Copyright Infringement?
My classes had “Movie Mondays.” On the first Monday of the month, I showed a different movie to my students which pertained to what we were learning. Think of showing Osmosis Jones following instruction of the immune system as an example.
Was I nervous about possible copyright implications when showing the movies during class? Of course! I was not 100% confident in my analysis of the law. I would have appreciated guidance on what constitutes copyright infringement in the education setting. This way I would have known whether I was jeopardizing my job by violating terms of the technology agreement. And whether I was violating federal law, as discussed below.
As a result of this experience, I believe school districts (particularly K-12) should offer more rigorous and comprehensive copyright and fair use workshops or programming for educators. This training would ensure their educators are aware of US copyright law, so they don’t violate it.
Copyright. What’s that?
Copyright is an IP protection afforded to original works of authorship fixed in a tangible medium. A copyright holder has several exclusive rights. These include the rights to: (1) make copies of the work, (2) distribute the work, (3) prepare derivative works (i.e. a new work based on an existing copyrighted work), (4) publicly perform or display the work, and (5) license any of the above to third parties. A copyright in many cases will last for the life of the author plus 70 years.
BUT… sometimes, you can use copyright protected works without facing liability. For example, using another’s copyright for educational purposes generally offers a way to avoid infringement.
So, Teachers Are Untouchable When It Comes to Copyright Infringement?
No. A teacher can avoid copyright infringement by directly asking the copyright holder for permission to use and display their work. Or, they could rely on one of the exceptions or limitations that apply in an educational setting. This includes Section 110 and Section 107 of the Federal Copyright Act.
Under Section 110(1), there is specific exception to copyright infringement liability for “face-to-face teaching activities” in a classroom. Nonprofit educational institutions are offered a pretty broad exception for using copyrighted material for in-person classroom teaching. Teachers in these situations can perform or display a copyrighted work while teaching without facing possible infringement. Meaning, a Movie Monday showing of Contagion to a high-school Health class taught in person can be legitimate.
But, what if something were to happen at a global scale such that teaching in person was not possible, thereby hindering a teacher’s ability to rely on Section 110(1)?
COVID and It’s Complications…For Me
Although the Movie Monday idea is ordinarily protected by Section 110(1), it was not helpful to me when I first started teaching. Why? Because of COVID. With the pandemic came the rise of virtual teaching and remote instruction. I, coincidentally, began teaching during this time and had to teach remotely like everyone else. Recall that Section 110(1) only applies to in-person instruction. While there were no changes to copyright law in the US at this time, Section 110(2), a.k.a the TEACH Act, became of greater pertinence to me.
Section 110(2) offers insights regarding the rules for using copyrighted materials when administering a class virtually. Under this section, in certain online settings and under certain circumstances, teachers can perform or display certain lawfully acquired works. I.e., teachers cannot display pirated works or works copied from a television broadcast. They can display as much as they want of a “nondramatic literary or musical work” (basically, books and musical works except plays). For any other type of work (such as a movie), teachers can use only “reasonable and limited portions” that would be typically displayed during a live classroom session. Section 110(2) further states that access to the work must be limited, and schools must distribute copyright policies to faculty, staff, and students. Teachers also must notify students that materials in the course may be subject to copyright protection and warn them that they cannot replicate or distribute them.
In this situation, a virtual Movie Monday was never allowable. If I was a history teacher during the pandemic teaching remotely, I should have only shown reasonable and limited portions of Hamilton for example. Not the whole movie. Maybe only a few clips instead.
Limitations of Section 110 and How Fair Use Enters the Chat
To recap so far, Section 110 does provide a means of avoiding copyright liability for Movie Mondays. But, does Section 110 permit sharing scanned copies of a chapter from a copyrighted text to students, which some teachers may or may not do? No. Section 110 does not permit the making of unauthorized copies of copyrighted works. That’s where Section 107 comes in.
Section 107, a.k.a the “Fair Use” provision, also offers a complete defense to copyright infringement. This means, if one gets sued by a copyright holder for infringement and they assert this defense of fair use, they may ultimately be in the clear for infringement and would not owe any money at all to the copyright holder or have to stop the use. Why? Because the use was considered a fair use.
Teaching is expressly stated in the statute as an example of when fair use may apply. But the courts assess the use according to a list of factors before considering it “fair use.” None of the factors alone are dispositive. The courts consider all factors, and the outcomes of considering these factors can be unpredictable.
For example, one factor courts assess is the amount of the copyrighted material used. For the scenario of sharing scanned copies of several chapters from a copyrighted text to students, entire chapters were shared. That amount distributed arguably encompasses the heart of the work, a most important part of the work. As a result, such use would favor a finding against fair use, which means leaning towards copyright infringement. But just because the chapters were shared does not automatically mean the use was not fair use.
Why? Well, all factors must be considered as a whole. Another factor is whether the use is commercial: teaching is a noncommercial use. This means that the use is not for monetary gain. Such noncommercial uses generally favor a finding of fair use, which means leaning against copyright infringement. This makes sense because education serves the public interest by contributing to a broader cultural and intellectual dialogue without competing with or displacing the market of the copyrighted work.
So, while one factor favors a finding of fair use and the other does not, a court may decide that the noncommercial nature of the use outweighs the amount of the work shown such that the chapters shared to one’s students constitute fair use. The copyright infringement claim therefore would no longer be successful.
However, please note that courts also consider the remaining fair use factors in making a decision. Of course, this determination will come after litigating the issue and spending money on legal fees. Also, it is possible that a fair use defense for an educational use is less likely to succeed than reliance on the explicit uses laid out in Section 110.
A Lot, Right? What Now?
It is. Learning this on my own while navigating my first years as an educator was a lot to put on my plate. As someone who took an IP course in undergrad, I had a jumping off point and an interest in further investigating the intricacies of copyright and education that many of my peers did not.
Fortunately for me, several universities provide comprehensive training and Zoom sessions on copyright and education that I was able to rely on. Similar training should be more widespread among K-12 educators to reduce the risk of copyright infringement in the education sphere.
In such a training, the sharing of resources, like the Fair Use Checklist provided by Columbia University, could prove helpful. Although the checklist does not guarantee that something is a valid fair use defense or that it won’t be challenged, it is better than receiving little to no resources from a teacher’s school district regarding fair use and copyright infringement. That way, when a teacher signs a form with a provision promising to adhere to all applicable copyright laws, they know what it means and what it would entail.
Jacob Yeskis
Associate Blogger
Loyola University Chicago School of Law, J.D. 2027