Due to the COVID-19 outbreak, most school districts are transitioning from classroom learning to some form of distance or remote learning. As materials are provided to students digitally to assist with distance learning, pause to consider whether publication of certain materials might expose the district to liability for copyright infringement. Last spring, for example, the Houston Independent School District had an adverse jury verdict
of $9.2 million entered against it in connection with the unauthorized classroom use and distribution of copyrighted study guides that the District had not purchased. Do not assume that the use is “fair use” simply because the materials are being reproduced for educational purposes or for educational purposes amid a public health crisis.
Copyright is a form of intellectual property law that protects original works of authorship including literary, dramatic, musical, and artistic works. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way such things are expressed. The general rule is that an original work cannot be used without the permission of its owner, unless an exception applies. Board Policy CY (LEGAL) describes
material protected by copyright and contains a summary of the statutory classroom teaching exception, discussed below. In addition, CY (LEGAL) delineates specific prohibitions, and outlines the factors considered for the “fair use” exception, also addressed below.
Many of the principles of copyright law that apply to face-to-face teaching in the classroom carry over to distance learning. As many administrators and educators are likely aware, federal copyright law specifically allows for the “performance or display of a work by instructors or pupils in the course of face-to-face teaching activities.” 17 U.S.C.A. § 110(1). Under this provision, teachers can read short stories, quote from poetry, display
an image of a painting, and show scenes from a play, opera, or film. Generally, as long as the work is being used for instructional purposes, this exception provides teachers and schools with broad latitude to use copyrighted works without fear of infringement.
While the same concept applies to online learning, the exceptions are more limited. The statute requires that any copyrighted material used in distance instruction be lawfully acquired. 17 U.S.C.A. § 110(2). While that is not likely an issue for most material, it does advise caution before venturing to YouTube to track down a video clip. Second, the amount and type of material that may be used for instruction is more limited.
‘Nondramatic’ literary works, as well as music, are still fair game, but teachers may only use a “reasonable and limited portions” of other works, like movies, plays, or musicals. Id. Any use of copyrighted works must be at the direction of (or under the supervision) of the teacher, and must be integral to the course subject.
Third, and perhaps most importantly, the school district must make efforts to limit the distribution of copyrighted materials to only those in the class, and only for the time it is used in the class. Relying on a digital medium open to non-students (e.g., a YouTube channel), or allowing students to retain a digital copy of the material after use would violate this provision. Districts must also have copyright protection policies in place
and share those policies with staff and students. Most district accomplish this through Board Policies CY (LEGAL) and CY (LOCAL). A district’s use-of-technology policy (sometimes found under the Board Policy CQ series) may address it as well. Many districts also include a copyright statement in the employee handbook, and may send a communication to students addressing copyright protection. With these measures in place, a district is well-positioned to offer courses via distance learning without
fear of violating copyright.
As a best practice, before using the copyrighted work of another in a distance learning setting:
• determine who owns it
• if possible, obtain permission to use it
• if unable to obtain permission, see if the work fits within the above exceptions
Beyond the classroom teaching and online learning exceptions, schools traditionally relied on the “fair use” doctrine to avoid copyright infringement. While the fair use concept applies to works used for distance learning purposes, the analysis depends on the specific facts, and is difficult to generalize. Essentially, the less of a work used as instructional material, the more likely a school is to prevail on a fair use defense. While
speculating how a court would evaluate fair use in advance can be a fraught endeavor, decisions about fair use of copyrighted works ultimately rely on reasonable, sound pedagogical judgment. When using copyrighted materials in education:
• use no more of the work than necessary for instructional purposes
• add new meaning to the work to make it original
• rework it and use it in a totally different way
• limit use to nonprofit, educational purposes
Given that most school districts across the country are transitioning to full-time distance learning, the major educational publishers are allowing educators to use some copyrighted materials for instructional purposes at no cost. Policies vary by publisher. In addition, the School Library Journal is maintaining a list of publishers adapting policies for online education. More information can be found at the links below:
