This summer I was at a cookout with a former colleague from my former life as an educator. She asked what I was doing now. She heard the word ‘copyright’ and began her rant:
“Oh, my school’s Copyright Policy is posted at every photocopier in the building, but I just cover up the little c with a circle and copy away! I feel bad, but what do they expect me to do? They’re always telling me there’s no money for anything. So, I do what I gotta do.”
Honestly, I did that too before I learned that a “little c” copyright symbol (©) is not required to copyright protection to exist, and covering up the © does not protect you from infringing on a rightsholder’s copyright. When teachers make multiple copies of something for their students, they may or may not be violating copyright laws. It depends.
In this blog, I’ll discuss two areas within U.S. Copyright Law that educators may be relying on when using copyrighted materials in the classroom – the TEACH Act and fair use – and how they do not replace the need to acquire permissions for content used in the classroom. I’ll also discuss ways educators can seamlessly use copyrighted content in their classrooms and curriculum to provide personalized, effective educational opportunities to their students.
The TEACH ACT
The Technology, Education, and Copyright Harmonization Act, or TEACH Act for short, was adopted by Congress in 2002 to expand upon certain limited exemptions under US Copyright Law (specifically by amending sections 110(2) and 112(f) of the U.S. Copyright Act) that allow teachers to use certain copyrighted materials in their classrooms for instruction without first obtaining permission from copyright holders. The Act was designed to balance the needs of educators and distance learners with the rights of copyright holders in the internet era, allowing teachers to use certain copyrighted work in digital teaching materials online for distance learning courses, while still protecting rightsholders.
The TEACH Act does not give blanket access or use for all works, instead it sets forth specific criteria that the academic institution and the instructor’s intended use must meet to qualify under the exemption. These qualifying criteria include, but are not limited to: limitation to only those students enrolled in a specific class, the use must either be for “live” or asynchronous class sessions and must be an integral part of that class experience controlled by or under the supervision of the instructor, all works must be lawfully acquired, only “reasonable portions” of works may be used, and only accredited, nonprofit educational institutions may fall under the TEACH Act – no for-profit schools or training programs are included. Additionally, works marketed for educational use (e.g., textbook materials, coursepacks, or materials “typically purchased or acquired by students”, etc.) are also not covered within the TEACH Act. It’s also important to note that the TEACH Act does not supersede fair use (more on this later) or existing license agreements, meaning that if your school has an existing license for a particular use for a work, the terms and conditions of that existing license take priority.
In short, the TEACH Act is specifically designed to put distance learning on the same footing as in-person instruction and only applies if learning is done online but is narrow in its scope and must meet certain criteria. If you would like a deeper dive into the TEACH Act, I encourage you to view a blog post we published on Velocity of Content here.
The FAIR USE DOCTRINE
Fair use is a concept in U.S. copyright law that allows for the unlicensed use of copyrighted works in limited circumstances for the purposes of promoting freedom of expression. It’s relevant in areas such as research, news reporting, and commentary. Whether a use qualifies as “fair use” is a heavily fact dependent analysis that considers both what is being used and the full context in which that specific use is being made.
Section 107 of the U.S. Copyright Act provides four non-exhaustive factors that courts use to determine if a particular use qualifies as fair use or if copyright permission would be required. They are:
- The purpose and character of the use;
- The nature of the copyrighted work;
- The amount and substantiality of the portion used in relation to the copyright-protected work as a whole; and
- The effect of the use on the potential market for or value of the copyright-protected work.
While using a work for an educational purpose is part of the considerations of whether or not a particular use could weigh in favor of fair use, it does not mean that all uses in an academic context are automatically considered fair use.
If you would like to learn more about fair use, I encourage you to review our Campus Guide to Copyright or read more about fair use from the U.S. Copyright Office.
An Easier Solution
So how can educators avoid copyright infringement and more easily navigate the complexity of copyright compliant use in their curriculum and instruction? One way is to do a complete 180 on how you search for and use copyrighted content.
For example, instead of finding a piece of content you want to use and then trying to decide if it’s covered under an existing license, or if their intended use could qualify as fair use or if it aligns with the requirements under the TEACH Act, begin with content you know is copyright compliant for your use in the classroom and curriculum and build around it without worry of potential copyright infringement issues.
RightFind Curriculum is the easiest way to ensure you have ready-to-use, licensed content for your K-12 curriculum and instruction, with print and digital rights to use 1M+ works from 90+ publishers. RightFind Curriculum also includes a searchable database of content from a selection of our participating publishers, enabling the discovery of texts by various criteria such as Lexile score, subject, genre, and more, for an engaging, personalized curriculum for students in K-12.
Instead of worrying about copyright compliance, RightFind Curriculum allows teachers to focus on teaching without copyright headaches.
Have questions? Learn more about RightFind Curriculum here — or reach out to me directly to answer any questions you have.