Blog/Navigating Copyright and Fair Use as an Educator
Digital Content Manager, Learning Technology Center
Copyright, fair use, public domain – these are all terms that may sound familiar to you as an educator. Even without a lot of training on the subject, most educators today know that these terms relate to how original works (including movies, music, books, and photos) are shared and distributed – or more specifically, who is allowed to share those works and in what context.
Along the same lines, it’s a common misconception that educators are broadly permitted to utilize copyrighted materials in the classroom, so long as their use is educational in nature. The truth, however, is more nuanced – especially as digital learning management systems (LMS) become more common in today’s schools.
As such, there’s never been a better time to brush up on key elements of US copyright law as it applies to educators and educational institutions. With this knowledge, you’ll be better able to ensure that you are staying within the letter of the law while also modeling legally-complainant practices for all of your students going forward.
Note: All information included in this guide is based upon publicly-available interpretations of current US copyright law. Examples and interpretations presented herein should not be taken as definitive or be construed as legal advice. Readers should always consult with their institution’s legal counsel when seeking further information on copyright issues.
Before getting too far in, it’s important to understand common terminology surrounding copyright and fair use. Here are just a few of the most important terms you, as an educator, need to know:
Under US law, creators of all kinds are entitled to special protections when it comes to the distribution of their work. This is called “copyright” and in most cases, it extends throughout the life of the work’s creator plus an additional 70 years.
If the copyright is not renewed before that expiration date, the work enters what is called the “public domain” (see below). For example, on January 1, 2021, F. Scott Fitzgerald’s widely-taught classic The Great Gatsby entered the public domain.
Copyright does not apply to all published materials. Established facts, government documents, and some printed maps are not covered by copyright, for example. There are also some middle-ground cases where special care and attention should be paid. This includes newspaper reports, which are typically copyrighted by their publisher, even though facts presented in that story are not eligible for copyright protections.
Copyrights exist to protect creators of original works while encouraging those same creators and others to similarly create more new works. These rights are not absolute, however, and several important exceptions exist. The most important, as it applies to schools and the educational process, is the educational exception.
US copyright law states that “teachers and students have certain rights to publicly display and perform copyrighted works in the classroom” (Section 110 of U.S. Copyright Law). These uses are considered “fair use” (see below), meaning that the participating students, teachers, or educational institution cannot be held liable for utilizing a copyrighted work in a manner that would ordinarily be illegal.
This educational exception does not apply to all educational institutions. US copyright law specifically dictates that this exception applies only to nonprofit institutions, including public schools.
Another noteworthy exception that may come into play in a school setting is the parody exception. This legal carveout allows individuals to substantively reuse key elements (such as the characters or plot) from a copyrighted work if they are parodying it. As a result, students may be allowed to utilize portions of copyrighted materials in their own work if they are analyzing that material in a comedic or critical manner.
In the US, this exception also applies to certain kinds of transformative works. For example, fan-made fiction writing, or fanfiction for short, is legal in the US, even if it utilizes characters, plots, and other defining elements from a copyrighted work. Typically, this exception is permissable only if the fanfiction creator is not profiting off of their derivative work.
As stated in “Copyright Exceptions” above, US copyright law allows for several special cases in which a copyrighted work may be utilized or distributed for certain productive purposes (namely, education). Together, these exceptional uses are called “fair use.” This means that copyright permissions need not be sought in advance, so long as certain criteria for fair use are met.
Based upon established case law, here are the four factors that educators should take into account while determining if their specific situation qualifies as “fair use”:
Fair use criteria
Purpose and character of use
Commercial purposes are rarely considered fair use, while educational uses are more likely to be viewed as fair use. All educational uses are not fair use by default.
Nature of the copyrighted work
Factual works (such as a government report) are more likely to obtain fair use clearance compared to creative or artistic works (such as a novel or piece of music).
Amount and significance of the portion used (in relation to the entire work)
Smaller, purposely-selected portions of a copyrighted work are more likely to be considered fair use compared to larger, broader selections of the same work.
Effect of use upon the potential market for or value of the copyrighted work
Limiting physical distribution of a copyrighted work to a non-market audience (such as a class of students) is more likely to be treated as fair use compared to posting the same resource online.
Fair use standards are intentionally broad and flexible. As a result, both students and teachers should always err on the side of caution if they believe their use of a resource would not qualify as fair use.
Under US law, a work in the “public domain” is any work that is not covered by any legal means of intellectual property protection, including copyright, trademark, or patent laws. As a result, the general public is said to “own” these works, rather than a specific creator or author. In turn, the public is allowed to use, distribute, adapt, and transform these works without requiring explicit permission from the owner.
There are four common ways a work can enter the public domain:
Copyright expiration (see “Copyright” above)
Failure to renew copyright
Deliberate release into the public domain (or in other words, forgoing copyright)
Creating a work that is not eligible for copyright (or other intellectual property protection) from the onset
Well-known examples of current public domain works include:
All of William Shakespeare’s sonnets and plays
NASA photos (and all other documents produced by the US government and its constituent agencies)
The Great Gatsby by F. Scott Fitzgerald
Uncle Tom’s Cabin by Harriet Beecher Stowe
The Star-Spangled Banner (both the lyrics and the music)
While searching through publicly-available educational resources (particularly online), you may run into a fairly new term – Creative Commons. “Creative Commons” is an innovative type of licensing that allows an individual to specify how they’ll permit others to use their creative works. In the process, the creator does not give up their inherent copyright; instead, they refine it using a widely-recognized licensing system that is honored both professionally and legally.
Creative Commons licenses are readily available for free through the Creative Commons organization. When registering a Creative Commons license, individuals (including educators) may require any or all of the following criteria when others utilize or share their original work:
Attribution – Requires those who share or utilize the work to give explicit credit to the creator
ShareAlike – Requires those who share or utilize the work to apply the same licensing criteria to their derivative work
Non-Commercial – Prevents the use of a licensed work for commercial purposes. In other words, individuals utilizing the work cannot profit from any derivative work, in whole or part
Recommendations for Sharing with Students
In general, educators are most likely to run into questions about copyright and fair use when it comes to sharing materials with their students. Though legal consequences for copyright infractions are not likely, it is still important for teachers to keep copyright best practices in mind, whether they are sharing a single copy or many, both online and in print.
Accordingly, here are a few recommendations that teachers of all grade levels and subject areas can use to keep them on the right track toward certifiable fair use:
When Making Multiple Copies
When making multiple print or digital copies of an article, book chapter, or other print segment for educational use, always ensure that there is a clear connection between the chosen text segment and your stated pedagogical purposes. This can often be done during the lesson-planning process.
Next, always ensure that your chosen text segment is only as long as necessary as your pedagogical goals require. In other words, make sure that your segment is tailored to focus only on the parts you need to communicate your lesson goals.
When pertinent, include a full list of attributions on each copy of the copyrighted work. This list should, to a reasonable extent, be scholarly satisfactory for the level you are teaching.
Finally, when sharing a copyrighted resource online, always limit access to that online resource as much as possible. For example, you can either limit access only to classroom members or make the resource inaccessible to anyone after the conclusion of the relevant course. In either case, your institution’s LMS can provide system-level options for adhering to this particular recommendation.
Recommendations for Sharing with Peers and Colleagues
Within professional learning networks and in the educational community at large, it is common and accepted that educators share resources with one another – often at no cost. However, even if a fellow educator isn’t requiring you to pay for the use of their lesson plans or teaching material, it is still a best practice to include attributions in your records. That way, if your lesson plan is shared with your peers, they’ll know where the original idea came from.
When Making a Single Copy
Teachers are generally permitted to make single copies of larger copyrighted works, so long as it is for their exclusive educational use. For example, chapters from a book, charts or diagrams from a periodical, short stories, and poems may be copied for fair use teaching purposes.
However, so-called “consumable” works – including workbooks and standardized tests – may not be copied in this manner. Instead, teachers who wish to reuse these resources must obtain new copies each time they wish to utilize them.
Utilizing Cooperative Resource Marketplaces and Platforms
Today, many teachers utilize education resource marketplaces, such as Teachers Pay Teachers. These platforms allow educators to exchange instructional materials and access ready-made digital tools for a reasonable price. As a result, these platforms are a great place for teachers to find innovative lesson materials that build on the work of their peers across the country and the world.
However, teachers should be fully aware that copyright laws still apply when buying and selling on this type of platform – despite the use being set within the educational sphere. Because these platforms allow individuals to profit from what they share, users must take special care to only share materials which they have wholly created or to provide proper attribution to other creators whose work was referenced or derived in their own work.
Often, educators on these platforms utilize Creative Commons licensing, which encourages broader collaboration and dissemination of creative works. If you sell materials on these platforms that utilize a Creative Commons license, you must be sure to follow said license’s specific criteria (particularly if it forbids commercial use of the original work).
Along the same lines, educators who utilize resources from these online marketplaces should not claim the copyrighted material as their own – even if changes or modifications are made. Always ensure that the original creator’s name remains affixed to the resource, including all lesson plans or lesson materials. That way, if one of your peers in your department wishes to utilize those plans or materials, the original creator will still receive their due credit.
To learn more about how Teachers Pay Teachers handles copyright and trademark issues, visit their policies page.
New and Forthcoming Copyright Considerations
Even before the switch to widespread digital learning in early 2020, many schools were already laying the groundwork for online learning through the implementation of a learning management system (LMS). Now that LMS use is becoming commonplace, schools and educators must take into account current laws pertaining to digital distribution of copyrighted materials.
Namely, educators should familiarize themselves with the TEACH Act, a piece of federal legislation passed in 2002. This law makes special provisions for the limited use of copyrighted works during online and distance learning. However, fair use standards in this context differ from their traditional counterparts.
If you’re interested in learning more about the TEACH Act and its implications for sharing copyrighted materials on your institution’s LMS, check out this concise resource from the University of California.
The Bottom Line on Copyright and Fair Use
At the end of the day, copyright and fair use may not be a front-of-mind issue for all educators. Even so, it is important that you know and understand these laws to prevent you or your institution from being placed in legal peril.
At the same time, adhering to copyright law is the ethical thing to do, regardless of whether or not you think you will get caught. In many ways, your choice to actively follow copyright laws can help model similarly ethical behaviors for your students, especially when it comes to citing their work. In turn, these behaviors can help your students flourish into productive digital citizens who respect the rights of creators and seek out those same protections for their own original work.
Resources and Further Reading
There’s even more to learn about navigating copyright and fair use in the education sphere. Here are additional resources to further your understanding of this important topic:
A special “thank you” to Renee Bogacz (@mrsbogacz) of Channahon School District 17 for her contributions to this guide. Her insights ensured that this guide’s recommendations and terminology were well-aligned to the needs and views of today’s educators.
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Digital Content Manager, Learning Technology Center
Sam leads and supports the execution and growth of LTC services through the development and creation of innovative, impactful, and timely digital content.
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