Copyright Compliance - Procedures - 2312-P
Copyright Issues Summary for Staff
Federal law makes it illegal to copy, distribute, modify or publicly perform or display copyrighted materials without the copyright owner’s permission, except under certain limited circumstances. Severe penalties (including criminal penalties) may be imposed on individuals or their employers for doing any of these things without authorization, unless one of those exceptions (like the "fair use" doctrine) applies. This document provides a brief summary of copyright law, including the fair use doctrine, followed by some general guidelines to help District staff to comply with U.S. copyright laws.
Of course, this document cannot provide a complete discussion of copyright issues. If you have questions about any particular use of copyrighted material (including a book, pamphlet, article, movie, play, song, recording, software or other creative means of expression that is fixed in media), please contact your school principal.
Copyright law is established in a federal statute, the Copyright Act, at 17 U.S.C. §§ 101 – 803, 1101. The Copyright Act says that copyright exists in original, creative works that are fixed in tangible form from the moment the works are created. The Act gives the owner of the copyright in any such work the exclusive right to copy, distribute, publicly perform and display, and create derivative works of that work. (The right to create derivative works is the right to create a new work based on someone else’s copyrighted work.) Others cannot legally exercise those same rights unless the copyright owner gives consent.
Since only the copyright owner can copy, distribute or exercise the other exclusive rights in a copyrighted work, the Copyright Act says that the District must obtain permission from the copyright owner if it wants to do any of those things with a copyrighted work. If the District does not obtain that permission, the copyright owner might sue the District (and the offending employee) for copyright infringement. (Copyright infringement can also result in criminal penalties.)
Under certain limited circumstances, however, these actions may be permitted even if the copyright owner has not given permission, if the use qualifies as what is known as “fair use.” The “fair use” doctrine makes certain limited types of unauthorized use of copyrighted materials permissible, to facilitate free speech and public benefits such as scholarship or research. It is important to realize, however, that not all use for free speech, scholarship, research, or other seemingly beneficial purposes will qualify as fair use. Each case of fair use is examined individually based on its facts, so no one can be 100% sure that any particular use is fair use.
The fair use exception, found in 17 U.S.C. § 107, says that exercising the rights in copyrighted works usually reserved for the copyright owner, without permission from the copyright owner, is not infringement if doing so meets the test for fair use. Typically, fair use involves using only a portion of the work in a way that it does not adversely affect the potential commercial market for that work or that work’s value. Whether a use is a fair use is determined by balancing four factors, based on the specifics of the particular use:
- The purpose and character of the use, including whether the use is commercial in nature or is for nonprofit educational purposes. Not all commercial use will be disqualified as fair use, and not all non-commercial use will qualify as fair use. Guideline: The less "commercial" and more educational the use, the more likely that the use is fair use, and vice versa.
- The nature of the copyrighted work, including whether the work is scientific, a work meant for entertainment, published or unpublished, etc. Guideline: Scientific and educational works and factual works are more likely to be subjects of fair use, while works created primarily for entertainment value and unpublished works are not.
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole. This refers both to how much of the work is used, and to whether the part used is the heart of the work (e.g., its most memorable part). It is also important to know how much of the new work is made up of the part of the original work being used. Guideline: The smaller the portion used, the less that the portion makes up the heart of the original work, and the less that the portion makes up of the new work, the more likely that use is to be considered fair use, and vice versa.
- The effect of the use on the potential market for or value of the copyrighted work. Guideline: The less that the use takes away the potential market for or value of the work, the more likely that fair use will be found, and vice versa.
Authorized Reproduction and Use of Copyrighted Computer Software
Software can be copyrighted just like any other work. The District supports the efforts to protect copyrighted software, for legal and ethical reasons, including by requiring compliance with usage agreements for software programs. To this end, District staff are required to observe the following guidelines:
- All copyright laws and the license agreements between the software licensor and the District must be complied with;
- Staff members must not make unauthorized copies of software;
- Staff members must not install or use unauthorized software on school equipment;
- It is important that for all purchased software, a back-up copy of the media be retained for use, should the original media be lost or damaged. In the case where the software license prohibits the purchaser from making copies, the District encourages that an additional, back-up copy of the media be purchased;
- All software purchases require approval by the Chief Technology Officer (CTO), and only the principal of each District school, and central office staff who have written permission from the CTO are authorized to sign software license agreements on behalf of the District. Each principal must retain a copy of each license agreement that they sign for the District, and central District staff must follow internal procedure regarding keeping a copy of the license agreements that they sign for the District.
A recent effort at the federal level led to the creation of some copyright compliance guidelines. Those guidelines do not change the Copyright Act or have definite legal effect on their own, but they may be helpful in avoiding practices that could create infringement liability for the District. Based on some of those guidelines, District staff must not do any of the following or let any District volunteers working for them do any of the following:
- Reproducing copyrighted material to create or substitute for anthologies, compilations or collective works;
- Making any copies from copyrighted consumable materials such as workbooks, exercises, test booklets, answer sheets and the like, unless expressly permitted by contract and authorized by the District;
- Using copies to substitute for the purchase of books, periodicals, music recordings, computer software or other copyrighted material. Sometimes the District may get permission from the copyright owner for this kind of use, but that use may come with restrictions, so even in that event staff must get express permission from District management;
- Copying or using copyrighted material, even under fair use, without including a notice of copyright that credits the copyright owner. Please contact the District to determine what might be satisfactory for a particular work.
April 21, 1998
Revised: November 14, 2008