Using educational materials protected by copyright is a critical part of the learning experience. These resources exist in various formats and many are recognized as “works” under copyright law. Educators use copyrighted works from the media, literature and art to bring real-world context to their curriculum, to offer students relatable topics for critical thinking and communication exercises, and to provide credible sources for the information they are sharing.
Does Copyright Apply to Education?
To get back to basics, copyright is the protection of intellectual property. All works in a tangible format are protected by copyright at the moment of their inception. Rightsholders have the exclusive right to republish or reproduce a copyrighted work. Although exceptions exist for specific use cases, copyright does apply to industries such as education.
However, to make the process of using educational materials less complicated for educators, copyright law has several exceptions that allow for the use of all types of copyright work for specific educational purposes. As educators’ opportunities for sourcing online material have increased exponentially in recent years, it is more important than ever to learn what pieces of work you can use without obtaining permission (or without paying a license fee) and when you’ll need permission through a content license.
What Is Fair Use?
Fair use is a U.S. legal doctrine that helps support freedom of expression by allowing the unlicensed use of a copyrighted work in certain circumstances. Also known as the law of fair use under 17 U.S. Code § 107, examples of fair use include criticism, comment, news reporting, teaching, scholarship, and research. When determining whether a proposed use is fair use, you should look at the following factors:
Four Factors of Fair Use Guidelines
1. Purpose of Use:
The purpose and character of the use and the copyrighted material, including whether such use is commercial, or is for nonprofit education purposes.
2. Nature of the Work:
The nature of the copyrighted work itself. For example, is the work based on facts or was it created purely for expression or entertainment? Is the work published or unpublished?
3. Amount of Material Used:
It is permissible to use limited portions of copyrighted work for commentary, criticism, teaching (including multiple copies for classroom use), news reporting, scholarship, or research.
4. Effect of Use on Marketability:
The impact of the use upon the potential market for, or value of, the copyrighted work.
As you can see, fair use is a subjective inquiry that allows a lot of room for interpretation. Further, the four fair use factors are not exhaustive, and a court may take into account other relevant considerations when determining whether fair use applies. If you have any questions on whether or not a specific use case is fair use, we recommend speaking with a copyright lawyer.
What is Educational Use?
Educational fair use guidelines apply to material that is used by students or faculty of educational institutions for the purposes of noncommercial teaching, studies, presentations or research. Examples of educational institutions include K-12 schools, colleges and universities but also libraries, museums, hospitals and non-profit organizations.
Each use case of copyrighted material should still be carefully considered as there are limits to what qualifies as fair use, even in a classroom setting. For example, an educator copying textbooks and handing them out to students is not considered fair use. While the educator may not be doing this for profit, the entire copyrighted work is being copied and distributed publicly, preventing the publisher from selling that textbook title to those students.
An Overview of Relevant Copyright Legislation
Classroom Use Exemption
There is a Classroom Use Exemption under (17 U.S.C. §110(1)), which states that under certain circumstances, such as within a classroom or nonprofit educational setting, teachers and students have rights to display or perform any copyrighted works within the qualifying Fair Use limitations, including the following conditions:
- The performance or display must occur in a classroom or similar location
- The performance or display must be made by a teacher, instructor, or student in the course of in-person teaching activities. This act does not include online classrooms.
- The use must be at a non-profit educational institution.
- Anything that is displayed or performed cannot be stolen work. The work must be legally acquired.
- This exception covers the right to perform or display a copyrighted work. It does not permit teachers to reproduce copyright-protected work.
Examples of covered use cases may include playing movies in the classroom, listening to r music with students, reading poems, and acting out scenes from a play.
The TEACH Act
The Technology, Education, and Copyright Harmonization (TEACH) Act of 2002 is a revision of Section 110(2) of the U.S. Copyright Act that addresses the use of copyrighted materials in online courses and education. Similar to Classroom Use Exception, this act granted exceptions in terms of the ability to display or perform copyrighted work in an educational setting. However, since this legislation focuses on digital education, it’s also important for teachers to take steps to ensure that copyrighted material will not be distributed beyond the course.
The Chafee Amendment
The Chafee Amendment (17 U.S.C. § 121) allows copyrighted material and works to be republished or distributed in specialized formats for visually-impaired and blind people. This may include converting previously published works into more accessible formats. However, these works should only be distributed to the visually impaired.
4 Misconceptions About Fair Use for Educational Use
1. If something is used for educational purposes, it is fair use to copy anything.
While teachers may photocopy works to hand out in class, there are limits to how much of a work may be copied and how many times a teacher can copy something from the same body of work. In general, the less the better.
2. You can use the entire work if you give credit to the author or copyright holder.
Giving attribution to the author or displaying the copyright notice is not a substitute for obtaining copyright permission. Teachers may not photocopy entire workbooks, texts, standardized tests, or other materials that were created for educational use. Copying or sharing an entire body of a copyrighted work requires permission.
3. If a copyright notice doesn't appear, the work is not protected by copyright.
Even if the work is not accompanied by a copyright notice, this does not mean the work is not protected by copyright. While most publishers display the copyright notice for the purpose of clarity, it is optional and a published work can still have copyright protection without it.
4. Fair use is open to interpretation so it is purely a judgment call.
Fair use is a doctrine of the U.S. copyright law – not a judgment call. When determining whether a use case is fair or not, it is best to stick to the educational fair use guidelines and avoid the risk of legal issues that may arise as a result of copyright infringement.
How to Ensure Your Classroom Is Copyright Compliant
There are several steps you can take to ensure your classroom is copyright compliant. Consider the following steps:
1. License Educational Resources
To help educators take the guesswork out of using copyrighted works, many educational institutions are turning toward content licensing companies to provide educational resources that are pre-cleared by copyright owners to license for educational purposes. These resources include news articles in multiple languages, photographs, word puzzles, educational videos, infographics and more. When incorporated into curricula, they can help students of all ages and skill levels learn about the world around them as they develop language, reading, and writing skills.
2. Don’t Assume Fair Use
Where educators may fall into trouble is assuming that a particular use case falls under fair use. However, educational use is not the same as fair use. As a result, it’s important to research if your use case falls under the exceptions for copyright law. For example: Photocopying a textbook so students don’t have to purchase it, does not fall under fair use.
3. Check for Creative Commons Licensing
Creative Commons offers a series of licenses that allow consumers to use copyright-protected material in a wider variety of ways. Many sites use Creative Commons (or similar) licenses. For example: Unsplash has a library of 3 million photos that can be used.
Be sure to check the terms of the license before using the material, however. For example: While educational use may be covered, you may not be able to include it in a course packet that you sell on a site such as Teachers Pay Teachers.
4. Use Works in the Public Domain
Copyright doesn’t last forever and many works already exist in the public domain. One resource, Project Gutenberg, has over 70,000 free ebooks for books where copyright has expired.
5. Contact a Legal Professional
If you’re still unsure if fair use applies to your particular use case, it’s always best to consult a legal professional who specializes in copyright or trademark law for further clarification.
Final Thoughts: Take An Easier Route With a Copyright License
If you are looking to incorporate copyrighted works into your curriculum regularly, it may be beneficial to seek a copyright license for educational material instead of spending time determining whether fair use is permitted or negotiating permission with publishers on a case-by-case basis.
NYTLicensing is a content licensing company that offers independent journalism and storytelling, across a range of formats, to inspire students with fresh and worldly content that can be adapted for all use cases. Ideas include: classroom exercises, curriculum development, print publications and supplements, digital products and platforms, language learning and more.
From ready-to-use solutions to individual articles and multimedia, our educational content products feature high-quality journalism from The New York Times and the world’s leading educational brands, like Hidden Pictures™ puzzles from Highlights and classroom magazines from Scholastic.
Frequently Asked Questions about Copyright for Educational Use
What are examples of copyright infringement in education?
Examples of copyright infringement in education may include using copyrighted materials without permission or proper licensing, reproducing and distributing copyrighted works beyond what is legally permitted (such as photocopying an entire book), or incorporating copyrighted material into educational materials without paying attention to fair use guidelines.
Can I use copyrighted material for educational purposes?
There are limitations to using copyrighted material for educational purposes, without a license. The fair use doctrine and specific exemptions like the TEACH Act may allow for the use of copyrighted materials in education; however, it’s important to adhere to legal guidelines. If you’re considering using copyrighted material for educational purposes, be sure to acknowledge the pertinent factors such as the nature of use, the amount of copyrighted material being used, the effect on the market value of the copyrighted material, and any other applicable exemptions, to determine whether your use falls within the legal guidelines. Alternatively, you can consider licensing the material through the rightsholder or publication.
What is considered fair use in education?
Fair use in education allows for the limited use of copyrighted materials without permission from–or payment to– the copyright owner. Factors influencing fair use include the nature of the copyrighted work, the purpose of use (e.g., educational, nonprofit), the amount used, and the impact on the market value of the original work. Educators should carefully consider these factors to determine if their use qualifies as fair under copyright law.
Can your teacher use copyrighted materials because of fair use laws?
While teachers may use copyrighted materials under fair use laws, it depends on the specific circumstances and how well the use aligns with fair use criteria (discussed above). While fair use provides some flexibility for educational use, teachers must assess each situation to ensure compliance with copyright laws.
What are the copyright exemptions for students with disabilities?
There are further exceptions to copyright law when it comes to students with disabilities, such as blindness or visual impairment. According to The Chafee Amendment (17 U.S.C. § 121), copyrighted material can be shared in specific formats, when solely intended to be used by these groups. However, there is no universal law covering fair use and overall accessibility of copyrighted works. If you are unsure if your use case is covered, seek legal counsel.
