the right ... To Promote the Progress of Science and the Useful Arts, by Securing
for limited Times to Authors and Inventors the Exclusive Right to their respective
Writings and Discoveries .
The utility of
this power will scarcely be questioned. The copyright of authors has been
solemnly adjudged, in Great Britain, to be a right of common law. The right
to useful inventions seems with equal reasons to belong to the inventors.
The public good fully coincides in both cases with the claims of individuals
balance two important values:
- Personal Rights
If a person has devoted their creativity, time, and energy into the creation
of something, that person should have the right to say who can use it and
how. People should have the right to compensation for their creative work
if they chose to ask for it.
- Benefit to Society
There are two benefits to individuals and society. Ensuring that people can
be compensated for their work encourages more creative works and these works
are of benefit to our society and individuals. Providing copyright protection
for only a limited period of time and allowing for exceptions to copyright
protection that support uses that are beneficial to society ensures that the
copyright protections provided to creators are not so extensive that society
cannot benefit from the works.
A creative work
-- text, music, picture, software, etc. -- is automatically protected by copyright
from the moment it is created. It is not necessary for a work to have a copyright
notice or to be registered to receive copyright protection.
A creator can place
his or her work in what is called the "public domain" by clearly and
specifically relinquished all copyright rights. Since a notice is not required,
merely publishing a work without a notice is not a relinquishment of copyright
rights. Unfortunately, there are many sites on the Internet where the developer
of the site has posted material in violation of someone else's copyright. The
simple fact that a work appears on a web site without a copyright notice does
not mean that the work is in the public domain. A work is also considered to
be in the "public domain" if the copyright has expired. Material produced
by the Federal Government and state government is also generally considered
to be in the public domain. However, material funded by government agencies
is generally not in the public domain, unless the government contract specifies
The owner of a copyright has the exclusive right to copy, modify, distribute,
display/transmit, and perform the work. The owner of a copyright can grant other
people permission, called a "license", to exercise any of these rights.
The permission can be expansive or limited. Sometimes people include a permission
statement or license on their work. For example, the creator may say: "Permission
to reproduce and distribute for non-profit purposes is granted."
by Students and Teachers
Students and teachers
may have copyright rights in the works that they produce. It is important that
districts recognize and respect these rights.
Students are not
employees of a school. Any work created by a student that meets the other requirements
for copyright, is fully protected by copyright law. The best strategy to teach
students about the need to respect the copyright rights of others is in the
context of teaching them about their rights. Schools that wish to exercise copyright
rights, for example, through the publication of student work on a school web
site, should receive permission from the student and the student's parent/guardian.
A one time request for ongoing permission to post student work should be sufficient.
Students should be taught how to more fully protect their copyright rights through
the use of a copyright notice. Technically, a copyright notice should include
the full name of the copyright owner, This will present problems in schools
because of the disinclination to post student full names. It is recommended
that student work be posted with a notice that includes the student identification
and the school the student attends: © 200?, jjwill Student at Adams Elementary
The ownership rights
of teachers presents a more complicated situation. In most cases, teachers are
employed to teach, not to create curriculum. Works that are created by the teacher
on his or her own time, with his or her own resources, are clearly owned by
the teacher. The situation becomes more complicated when district resources
are used in some manner and/or the district has initiated, requested, or supported
the development of the materials. All districts should have a clear policy outlining
copyright rights. The following standards are recommended:
- If the teacher
creates materials solely on his/her own time, using his/her own resources,
then the teacher owns the copyright and the district has no rights.
- If the teacher
creates materials primarily on his/her own time, and primarily using his/her
own resources, but has used some district time and/or resources, such as posting
the materials on the district web site or some use of instructional preparation
time, then the teacher owns the copyright, but the district should have a
no-cost, nonexclusive, continuing right to use the materials for educational
purposes within the district.
- If the teacher's
creation of the materials has been initiated and supported by the district
and designed to meet district-specified instructional needs, then the district
owns the copyright.
the Information Age
The original copyright
laws emerged after the invention of the printing press. The development of new
technologies for the distribution of information is causing a restructuring
of existing copyright laws. This is an activity that is occurring on an international
level as well as a national level. This increases the complexity because copyright
laws are grounded in different philosophical perspectives throughout the world.
Currently, there are many players and competing interests involved in the discussion.
Educators will need to be active participants in developing new standards with
respect to the fair use of copyrighted materials for educational purposes.
restructuring of copyright law is a fundamental shift in the relationship between
the creators of works and the individual. Traditionally, the work of a creator
only reached the individual through a publisher. Publishers have traditionally
served two roles -- ensuring quality and managing the production and dissemination
of the work. Publishers have traditionally played a major role in determining
copyright policy, and continue to do so today. Through the use of telecommunication
technologies, creators of works have a more direct connection with the individual
users of their works. The role of publisher in production and dissemination
is diminishing. There are many examples emerging on the Internet that demonstrate
the potential of these direct connections.
Fair Use Doctrine
use doctrine" provides a limited basis by which people can use a copyrighted
work without getting permission from the creator. The fair use doctrine seeks
to ensure that the benefits to society are not defeated by the limited monopoly
that has been granted to the copyright owner. The fair use doctrine was established
in a long line of court cases. Essentially, the courts were presented with situations
where the benefit to society was considered to be greater than the potential
loss to the creator. In the Copyright Act of 1976, Congress codified the legal
standard for fair use which provides:
Exclusive Rights: Fair Use. Notwithstanding the provisions of section 106,
the fair use of copyrighted work, ... for purposes such as criticism, comment,
news reporting, teaching (including multiple copies for classroom use), scholarship,
or research, is not an infringement of copyright. In determining whether the
use made of a work in any particular case is a fair use in any particular
case is a fair use the factors to be considered shall include:
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;
4. The effect of the use upon the potential market for or value of the copyrighted
Fair Use for
Teaching, Scholarship, and Research Purposes
Over the years,
librarians, educators and publishers have developed voluntary guidelines to
address fair use of work for teaching, scholarship, and research purposes. Although
these guidelines are not statutory, they are contained in the legislative history
of the Copyright Act. The current guidelines cover copying by and for teachers
in the classroom context, the copying of music for educational purposes, the
copying of relatively recent journal articles by one library for a patron of
another, and the off-air video-taping of video broadcast materials. These fair
use guidelines generally address fair uses that are non-transformative -- that
is the work is being used as it was produced and essentially for the purpose
for which it was used.
In 1994, the U.S.
Department of Commerce established the Conference on Fair Use to bring together
copyright owner and user interests to discuss fair use issues that have been
raised by new technologies and to develop guidelines for fair use by librarians
and educators. The CONFU participants spent over 2 1/2 years in an attempt to
develop new fair use guidelines. Proposed guidelines were developed in three
areas, digital images, distance learning, and educational multimedia. In the
end, there was no consensus on the guidelines. In brief, the copyright owners
thought that the guidelines gave too much away and the educators and librarians
thought the guidelines were unworkable and overly restrictive.
It is unknown whether
the guidelines developed represent a "safe harbor" for educators and
librarians. Some educators and librarians fear that following the guidelines
will result in undercutting a more expansive scope of fair use. Following CONFU
members of a number of educational, scholarly, and copyright user organizations,
including the National Education Association, the National School Boards Association,
and the American Library Association, committed to the following:
- We will share
experiences concerning: the application of new technology in library and educational
environments, "fair uses" made of copyrighted works, proprietors'
responses to requests for permission to use copyrighted materials, and sources
of helpful information regarding fair use and other privileges under copyright
- We will participate
in organized efforts to capture and disseminate such information;
- We will assist
in the development of "User Community Principles" and educator-
and librarian-generated "Best Practices" concerning fair use, distance
learning, and other activities supported by current copyright law;
- We will work
to extend the application of fair use into digital networked environments
in libraries and educational institutions by relying on it responsibly to
lawfully make creative use of information;
- We will resist
relying on any proposed code of conduct which may substantially or artificially
constrain the full and appropriate application of fair use; and
- We will encourage
our members to reject any licensing agreement clause that implicitly or explicitly
limits or abrogates fair use or any other legally conveyed user privilege
Under the fair
use exception for teaching, research and scholarship, posting a copyrighted
work on a publicly accessible web site would not constitute fair use. Such use
would go far beyond the limited spontaneous use with a limited audience that
is supported under this particular fair use exception. Posting a work on an
intranet, where access would be limited to only those students in a particular
class may constitute fair use, if such use also met the other traditional requirements
of brevity and spontaneity.
Fair Use for
Criticism and Comment
Use of copyrighted
work for criticism and comment, including parody, is a transformative use of
the prior work. With such uses, the owner of the copyrighted material may not
be inclined to grant permission for use of the work, since such use may be for
the purpose of criticizing the prior work.
This fair use exception,
grounded in the First Amendment, is important for public policy reasons. When
a portion of a prior work is incorporated into a new work for the purpose of
expanding upon, commenting on or criticizing the prior work, the new work has
significant social benefit. It is through the publication of works, and comments
and criticism of those works that society gains new knowledge. Therefore, such
use of the prior work for comment and criticism purposes is considered to be
If use of a prior
work is for comment and criticism purposes, then the new work could properly
be placed on a publicly accessible web site.
Liability for Copyright Infringement
for copyright violations on the Internet was discussed in the chapter on District
Liability. One area with a potential for liability is material posted on the
District's public web site in violation of copyright. School districts should
be very careful about the copyright status of any material posted on this web
site. Most companies do not want to sue school districts for copyright violations
unless the unlawful practice is pervasive and such a suit would send a message
to other districts. Promptly removing any material that violates copyright will
generally satisfy the copyright holder. However, if a copyrighted work is being
used appropriately for fair use purposes, in the context of criticism or comment
on the prior work, districts may need to weigh the risk of liability against
the importance of supporting teachers or students in the important exercise
of First Amendment free speech rights and the advancement of knowledge.
The other area
where districts run a risk of liability is in the violation of copyright or
licensing agreements in the use of software. The Software and Information Industry
Association (formerly the Software Publishers Association) has an Anti-Piracy
Education Initiative. There are excellent recommendations for the establishment
of an effective software management program in schools on their web site .
also closely evaluate their web traffic to ensure that students are not using
the district Internet system as a vehicle to exchange copyrighted materials.
Such activity would result in a significant amount of traffic and should be
easily detectable by an astute system administrator.
for School Web Sites
Web Site Concerns
The following Copyright Management Plan seeks to address concerns of material
placed on the district web site that may interfere with the rights of others,
including copyright rights.
- Have provisions
in the school Internet Safety and Responsibly Policy that address copyright
(and other potential liability) issues.
- Place on the
district web site and each school web site a "Web Site Concerns"
link. This link will take the reader to a page where the district states:
XYZ District seeks to ensure that all materials placed on the district or
school web sites are placed in accord with copyright law and do not infringe
on the rights of or harm others in any way. To accomplish this we are taking
* We have a
provisions in our Internet Safety and Responsibility Policy that address
copyright, defamation, harassment, invasion of privacy, and other harmful
speech. <link to policy>
* We have established
web site management procedures to review materials prior to their placement
on the web site. <link to procedures>
* We will promptly
respond to any issues of concern . If you have a concern about material
placed on our web site, please contact us. <link to e-mail to an administrator
who has the responsibility of promptly responding to any complaint>
- Establish web
site management procedures to address these issues of concern.
Web Site Management
Procedures The following web site management procedures should be required for
all teachers and students who are placing materials on the school web site.
The copyright management procedures require noting the source and copyright
status for all materials placed on the web site. To be included as a component
of the web page or course, the material must meet one of the following criteria:
- Original Material.
This is material created by teacher or the student for the web page or course.
This material should include a statement of copyright ownership and any permissions
that may be granted. A standard notice might read: "© 200_ name.
Permission to reproduce and distribute for non-profit purposes granted."
- Public Domain
Material. Public domain material falls into one of 3 categories:
by the government (does not apply to material created by someone else with
b. Placed in
public domain by copyright owner.
has expired. The following is information about when a work enters the public
before 1923. In the public domain.
from 1923 to 1963. Copyright term starts from time the work was published
with a copyright notice. The copyright term was 28 years for first term,
with ability to renew for 47 years, which was recently extended for 20
more years (total 67 years). If the copyright was not renewed, the work
is in the public domain.
from 1964 to 1977. Copyright term starts from time the work was published
with a copyright notice. The copyright term was 28 years for first term.
Now there is an automatic extension for 67 years.
before 1978 but not published or published after 1978. The copyright term
starts 1978 and extends for the creator's life plus 70 years or 12/31/2002,
whichever is greater.
after 1978. The term starts when created and extends for life of the creator
plus 70 years, or if created by a corporation, the shorter of 95 years
from publication or 120 years from creation.
- Permission Granted
for Use. There are two ways in which permission could occur.
for use is provided on material itself. For example, the material may contain
a notice that states that reproduction for nonprofit, educational use is
permitted. A copy of this notice must be supplied to.
permission is obtained from copyright owner for use of the material on the
- Fair Use. The
standard Fair Use Guidelines for Educators do NOT apply to material placed
on school web sites. However, it is considered to be fair use to use copyrighted
materials if the purpose is transformative, including review, criticism, or
The following is
a Web Site Management chart:
from X attached
||Found in book
that was published in 1909, title page attached.
The following is
a Copyright Permission Request Template:
I am a student/staff
at (name of school). I would like to use (describe the material) in the following
manner (describe how you will use the material). Do you hold the copyright
on this material? If you hold the copyright, may I have your permission to
use your material in this way?
If you grant
permission to copy this material, I will properly reference your ownership
by (describe how).
I need to have
your answer by (date).
Copyright Management for Software
The following recommendations
for effective copyright management for software come from the Software and Information
Technology Industry Association.
Nine Steps to Getting and Staying Legal
1. Appoint a
2. Create and implement a software policy and code of ethics.
3. Establish software policies and procedures.
4. Conduct internal controls analysis.
5. Conduct periodic software audits.
6. Establish and maintain a software log of licenses and registration materials.
7. Teach software compliance.
8. Enjoy the benefits of software license compliance.
9. Thank employees and students for participating .
and Access to Quality Educational Materials
There are a number
of positive ways that district can address copyright concerns as well as facilitate
access to educational materials. These include:
- Use public domain
resources whenever possible. In many cases, public domain resources are readily
available to support a wide variety of educational activities.
- Develop collaborative
approaches with other educators to create new public domain or inexpensive
educational resources that can be used without the need to deal with commercial
directly with publishers about marketing and distribution practices that undermine
the effective and legal use of their materials in the classroom.