Article 1, Section 8 of the United States Constitution states that “The Congress shall have Power”…"”To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” In practice, this clause has yielded our modern copyright law.

Copyrights are automatic as soon as it is in a “fixed or tangible medium”, according to the Berne Convention, a multinational treaty adopted in 1886. While copyrights may be registered, they are automatic, and do not need to be registered nor displayed to be enforceable. A copyright must be a written work, but do not have rights to their ideas, only the expression of the ideas (patents, however, are more grey than that).

A copyright holder maintains exclusive rights to reproduce their works, to create derivative works, to sell or rent their work, to publicly display their work or decide how a work may be publicly displayed, and the right to digitally record or transmit their work. The length of a copyright is typically defined as the life of the author plus 70 years, but depending on the type of work and when it was published, the real answer is much, much more complicated. These definitions being based on “life of the author” become even more complicated when “the author” is something like Gigantocorp Movie Productions, Inc and when mergers and acquisitions become involved.

Works where the copyright has been expired or forfeited are considered to be in the “Public Domain”, meaning anyone may use the work for any purpose. As works enter the public domain, anyone may adapt and reuse these works in any way. The new works are subject to copyright (much has how many Disney movies are based on stories in the Public Domain or Pride and Prejudice has been adapted to Pride and Prejudice and Zombies). Given the volume of new works that have been produced in the last hundred years, many common works are now moving into the Public Domain each year. The original Mickey Mouse (Steamboat Willie) is now in the Public Domain and creators are free to use that image however they want to. However, later editions of Mickey are still copyrighted.

Copyright in the Internet Era

In response to Napster and other Peer-To-Peer file sharing services, the Digital Millennium Copyright Act (DMCA) was passed in 1998. There are two major provisions to the DMCA that impact schools. The first is section 1201, which makes it “unlawful to circumvent technological measures used to prevent unauthorized access to copyrighted works.” This has been interpreted to mean that it is illegal for you to jailbreak your smartphone, or use a third party print cartridge, or repair your own tractor. In 2018, a group of citizens petitioned under Section 1201 to have a “right to repair” exemption. This movement saw a pretty significant victory, though challenges still remain.

The second major provision is colloquially referred to as a “DMCA Takedown Notice”. If a copyright holder believes a site is hosting copyrighted material, they may issue a takedown request in lieu of filing a copyright lawsuit. If the service complies with the request, they are exempt from prosecution under copyright laws. Because of the volume of these requests, many sites adopt a suspend first-question second policy. Google, for example, has received over 4 billion takedown notices, and therefore, doesn’t have the time or the bandwidth to filter these cursorily. Many schools are also subject to DMCA takedown notices for content posted on the web or if a student or staff member is engaged in peer-to-peer file sharing.

There have also been several copyright complaints about linking from one website to another, though most of these have been dismissed under the Fair Use Doctrine.

Fair Use

According to the U.S. Copyright Office, “Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances.” (Side note: While text produced by the Federal Government is in the Public Domain, citations are considered Fair Use). From the same site, there are four factors to be applied when considering fair use:

Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes: Courts look at how the party claiming fair use is using the copyrighted work, and are more likely to find that nonprofit educational and noncommercial uses are fair. This does not mean, however, that all nonprofit education and noncommercial uses are fair and all commercial uses are not fair; instead, courts will balance the purpose and character of the use against the other factors below. Additionally, “transformative” uses are more likely to be considered fair. Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work.

Nature of the copyrighted work: This factor analyzes the degree to which the work that was used relates to copyright’s purpose of encouraging creative expression. Thus, using a more creative or imaginative work (such as a novel, movie, or song) is less likely to support a claim of a fair use than using a factual work (such as a technical article or news item). In addition, use of an unpublished work is less likely to be considered fair.

Amount and substantiality of the portion used in relation to the copyrighted work as a whole: Under this factor, courts look at both the quantity and quality of the copyrighted material that was used. If the use includes a large portion of the copyrighted work, fair use is less likely to be found; if the use employs only a small amount of copyrighted material, fair use is more likely. That said, some courts have found use of an entire work to be fair under certain circumstances. And in other contexts, using even a small amount of a copyrighted work was determined not to be fair because the selection was an important part—or the “heart”—of the work.

Effect of the use upon the potential market for or value of the copyrighted work: Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work. In assessing this factor, courts consider whether the use is hurting the current market for the original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it were to become widespread.

There is predominant exception to the Fair Use doctrine. Materials used in Fair Use contexts in bad faith (i.e. to misrepresent or appropriate someone’s work, to slander, etc.) generally won’t hold up under scrutiny, even if they would otherwise be considered Fair Use.

“Transformative uses” typically refer to things like commentary, reviews, and criticism. A parody is also generally considered Fair Use. However, determining “transformative use” can be tricky. Taking quotes from a speech (which would be copyrighted) and using it in marketing materials would be considered a transformative use and generally fails under Fair Use. Websites like Memory Alpha (the Star Trek Wiki) have been found to be transformative works because they add value to the original work without plagiarizing from it.

We’ve heard the “rule of thumb” that you can’t reuse more than 10% of a printed work or 20 seconds of a song before violating fair use guidelines. In fact, the guidelines are not that concrete. A parody, for example, may borrow heavily from the source materials and still be considered fair use. However, reusing a short guitar riff in a new song or a line in a speech would not be. The best guidance is that you should use enough of a source material to get at the heart of the material or the “core concept”, but no more.

Effect on the market is probably the most clear cut element - is the use of the work detracting from sales and profitability of the work moving forward. However, this is the reason that most restaurants and movies don’t sing the traditional Happy Birthday song - it was under copyright until released into the Public Domain in 2016.

Impact on Education

In education, teachers tend to take a very broad view of what is and is not Fair Use. Common practices like copying pages out of a textbook or workbook, even a small number of pages, clearly violates the “effect on the market” test in the Fair Use doctrine, and is a copyright violation. Scanning a textbook, however, would be considered a transformative work and would not be a copyright violation provided there was a physical copy of the textbook for each student who was accessing the scanned copy.

Content providers often can and do provide teachers some flexibility in the license agreement in the content. Many teacher-edition workbooks, permit teachers to make a copy for their own class, but not for other teachers or other classes.

With respect to movies, showing a clip of a movie for educational purposes is generally considered acceptable under Fair Use doctrine. However, copyright law prohibits public performance of movies or music for entertainment purposes is generally considered illegal under copyright law (playing a movie the day before Christmas, or playing Spotify for a whole class, for example). Disney, for example, has sent Cease and Desist letters to schools for things showing movies and for displaying murals with Disney characters in daycare centers. Netflix allows their original content to be used for classroom use under certain conditions. Many schools have subscriptions to services such as Movie Licensing USA which provides licenses for public performances of certain movies for entertainment and fundraising purposes.

Teachers have to be especially careful to avoid plagiarism - using work from the textbook, website, etc. in a way that violates Fair Use and does not properly cite. Since teachers tend to share lesson plans with other teachers, copyright violations can have a multiplying effect. This is especially true with content teachers and students are posting online, especially in public contexts.