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LEGAL ISSUES IN I.T.

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Justin Bathon

Staying on the Right Side of Copyright in Education

Your district may be breaking copyright laws and not even know it. Heres how to protect yourself from liability.
any of your students are criminals. Some of

written for a school application this year will

your teachers may be as well.

most likely be protected under the schools

Because of the perverse nature of modern

copyright law in the United States, few of

ownership well into the next century. When

you share that script openly without the

us in the education system can get by without, at least

schools permission, youre likely violating

on occasion, infringing the rigid rules of copyright. By

the schools copyright interest in that work.

nature, children and educators want to share with each

Luckily, not all works fall under copyright

other. Unfortunately, that often works against us. Making

protection. While a standard copyright state-

a copy of a digital file has never been easier, but at the

ment is the default protection for newly

same time that content has never been more protected.

created worksuch a statement typically

Schools and educators are naturally vulnerable when

appears automatically on websites, for exampleauthors can choose to release

a few simple guidelines, schools can protect them-

their work to the public domain through a

selves and help ensure theyll come out on the right

free-to-use license (commonly known in the

side of any copyright-related litigation.

tech world as open source), or they may

shutterstock.com

any of these laws are broken. Fortunately, by following

choose a different form of protection more

A Primer on Copyright

The Creative Commons method of protecting author-

tions, prohibit commercial uses, or demand that others

the death of the author, or longer (up to 120 years) if

ship rights falls between open source and full copyright

similarly share any work derived from the protected ma-

the work was done for a business or school. To put it

protection. Using the Creative Commons license, an

terial. For schools, these options provide useful ways to

simply, the small bit of PHP script that you might have

author can choose to seek attribution, limit modifica-

share their own work but also convenient ways to avoid

Todays copyright law protects works for 70 years after

21

catered to their particular interests.

| DECEMBER 2013

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LEGAL ISSUES IN I.T.

copyright violations in work produced by their teachers

additional guidance for educators. Congressional tes-

requirements, such as developing a policy and com-

and students. It is important to remember, though, that

timony in the 1970s, which has been published by the

plying with both take-down and put-back notices.

these alternatives are only opt-in presently. It is up to

US Copyright Office as educational guidelines, is fairly

Oakland Schools in Michigan provides an example of

the user to understand the specific license on any work

specificthough at times arguably arbitrary. Schools,

a school policy on DMCA. If your school does not cur-

before making copies.

though, have translated these guidelines into local

rently have a DMCA policy, you should adopt one and

copyright policies that can be extremely specific.

follow the requirements to take advantage of the pro-

While these alternatives are useful, their application

is still very limited. Standard copyright protection still

tections afforded by this law.

applies to the vast majority of books, videos, images,

right guidelines permit the use of only 250 words from

and softwarevirtually all the content that schools

a poem, 1,000 words from a book, three minutes of a

protections for schools as they move toward online

use to aid in teaching. Some flexibility on copyright

video, 30 seconds of a song, or five images from a col-

teaching and learning. In the Technology, Education,

has been provided over the years, and schools have

lective work. These local copyright policies have been

and Copyright Harmonization (TEACH) Act of 2002,

benefited in two distinct ways. First, the doctrine of

known to stretch on for pages, though, and in this ever-

Congress provided flexibility in the temporary stor-

fair use covers the broad flexibility offered to journal-

changing digital environment, trying to guess at every

age and dissemination of copyrighted materials for

ists and educators. Copyright law now codifies a four-

potential copyright opportunity is becoming impossible.

distance learning. Essentially, the issue is that much

part test that has been developed through court chal-

Nevertheless, both fair use and the educational guide-

teaching in the classroom relies on copyrighted mate-

lenges to copyright. The commercial purpose of the

lines do provide some flexibility to schools in using

rial, but the teaching itself does not create an actual

use, the nature of the work, the amount copied, and

copyrighted material.

copy (and thus does not violate the law). A teacher

the market effect are balanced to determine whether

For technologists, though, the analysis does not end

Congress has also passed some guidance and

passing a legally obtained book around the class,

with the Copyright Act. Congress has also passed laws

for instance, is relying on a copyrighted work but is

on interacting with new digital technologies. In the Digi-

not making a copy. A similar activity from an online

be guiding principles for schools, as they can always

tal Millennium Copyright Act (DMCA), Congress pro-

teacher, though, would result in a copyright violation,

serve as a shield to potential copyright violations. But

vided some protection to service providers when us-

since many online teaching platforms rely on the up-

even within these relatively simple criteria, the situa-

ers of their networks commit copyright violations. This

loadingand thus, copyingof files. The TEACH

tion in schools can quickly become complex. Because

law protects a school against liability from violations

Act provides the online teacher with the same general

of the problematic nature of copyright in schools,

committed by students or teachers. To receive protec-

ability as on-site teachers in showing copyrighted in-

Congress has actually used a back door to provide

tion under this act, schools must comply with a list of

formation in very limited circumstances.

fair use applies.

These elements of the broader copyright test should

22

For instance, Omaha (NE) Public Schools copy-

| DECEMBER 2013

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LEGAL ISSUES IN I.T.

6 Tips for Staying Copyright Compliant

brought against colleges and universities. However, the

The vast majority of copyright violations go unnoticed

Copyright Act is law, and to ensure not only compliance

Technical staff, when using open source materials such

and unprosecuted. There has only been limited litiga-

for your school, but also your students, you cannot

as Linux or Apache, should make explicit note of this

tion against educational institutions for copyright viola-

ignore it. Some practical tips for school officials to con-

software. As administrators are less versed in these

tions and, generally, cases have more frequently been

sider in complying with copyright include the following:

platforms, they need to know that the school is protect-

4) Take note of any open source software use.

ed should copyright litigation ensue. This is a particular

AN OUNCE OF PREVENTION

1) Create clear policies that provide broad coverage. Instead of a 20-page copyright policy, a short,

Click for Mac

but broader, policy demanding compliance from

concern when the technical staff that originally used the

platforms no longer work for the school.
5) Understand your districts ownership rights for

teachers and students can be more effective in actual-

work created in-house. Think back to the PHP script

ly limiting the initial violations. The University of Rhode

example mentioned earlier. In general, you may rely on

Island provides a model policy that strikes the right

a default policy that permits sharing of any work cre-

preventive tone.

ated in the district, with a clause that allows you to lock

2) Guide students and teachers on how to obtain

down a particular piece of work upon notice.

legally permissible materials online. The Creative

6) Avoid copying any materials specifically creat-

Commons license has been a tremendous boost to

ed for the educational market. Any substantial copy-

educational institutions, and there are search tools that

ing of textbooks, educational software, classroom

can help you find usable materials. Schools should

posters, or other educational product likely will not be

considering promoting Creative Commons to teachers

considered fair use. This is the most likely instance in

and students.

which a school or school official may be sued or pros-

3) Pay special attention to online learning. While

ecuted.

the TEACH Act does make teaching easier online, it

VIDEO: Justin Bathon shares three practical tips that
can help districts and their leaders avoid running afoul
of copyright law.

24

| DECEMBER 2013

does not necessarily make sharing readings or other

Justin Bathon is an assistant professor of education

documents easier. Making PDF copies of readings for

leadership at the University of Kentucky and a director

uploading is still likely a copyright violation, and should

of the Center for the Advanced Study of Technology

be avoided.

Leadership in Education (CASTLE).

NEXT:
The superintendent as
tech leader

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