Copyright basics

A copyright owner has the right to control who may copy a work and use it. The copyright, by prohibiting unauthorized copying of work, creates a situation where the work must be purchased. This protects financial rewards for the author/holder, who can sell the work.
 
The copyright owner or holder might be the actual author or creator of the work but can also be someone else. The author might have originally created the work for someone else as a “work for hire” or might have later “sold the rights” to the work. An author can decide not to copyright work and thereby allow free reproduction of it or allow it to be copied under certain restrictions. This is seen frequently with computer programs. 
 
Because the intent of a copyright is to protect a material’s commercial value for the author or copyright holder, what’s most likely to cause a problem is reproduction that would affect a work’s commercial value. If the purpose of copying material is simply to avoid the cost of purchasing the work, copying the material is a copyright violation.

Copyright violation can lead to a suit by the copyright holder against the infringing individual in order to recover lost financial value. Assuming that an educator does not go into the “bootleg publishing business,” such suits are unlikely in normal cases, though the publicized suits against individuals who have downloaded music illegally are evidence that they can happen.
 
More likely, though, is negative action taken against educators by their districts or sanctions from the State Board for Educator Certification. Reproducing a copyrighted work without permission is illegal, and engaging in illegal conduct can be grounds for both negative employment action—including termination—and serious certification sanctions, such as suspension or even revocation of a certificate.

In most cases, the person who creates the work is considered its author and owns the copyright. But, unless you have an agreement with your district to the contrary, materials you create in the course of your job belong to your employer. When an employer special-orders or commissions supplementary work (an instructional text, test or answer material for a test), it is considered “work for hire” and belongs to your employer.
 
But the work need not have been specifically ordered by the employer to be considered the employer’s property. A number of factors will determine whether a work was created within the scope of employment and therefore belongs to the employer, such as:

• Was the work created during the regular workday?
• Was the work created to aid the educator in the educator’s performance of his work for the employer?
• Was there any specific agreement between educator and employer about the copyright?
• Was the work created using the employer’s resources or equipment?

Lesson plans and other instructional materials

Certain materials that teachers routinely create, including lesson plans, classroom materials and tests, are traditionally treated as jointly owned by the teacher and the school district. Because there is little potential for commercial exploitation of these materials, districts generally don’t care and don’t ask teachers if they use materials in one district that they created while working in another. However, districts typically retain sole ownership of materials such as large curriculum documents.

In-services and other special materials

Distance learning courses, as well as professional development courses and workshops, have a greater market value to districts and the teachers who create them than do traditional classroom materials. Your district might be able to argue that materials you’ve created for such workshops were produced in the scope of your job duties so it can therefore claim ownership. The questions above might be helpful in determining whether the district or educator owns the material.
 

If a poem, short story or other work is copyrighted, it cannot be copied except by permission of the copyright owner, with a few exceptions. Sometimes a general copyright notice includes permission to reproduce the material, as is common with software. In this case, the licensing agreement will specify if copies can be made and for what purpose; any other reproduction is a copyright violation.
 
Note that copyright protections apply to material found online as well as material published in traditional paper form. It is also not necessary for an author to mark the material with the common copyright symbol: ©. The symbol simply provides definite notice that the material is copyrighted and that the owner intends to maintain their control over the material.
 
Except for the “fair use” exception described below, legally copying a copyrighted work requires obtaining permission directly from the copyright owner. The copyright holder can generally be located by contacting the publisher. Owners/authors usually want to be paid for use of their work, but they might give an educator permission to use it for free if the educator can show a legitimate need and the permission will be limited with minor commercial or financial impact on the copyright holder.
 
General guidelines:

• Don’t copy workbooks, exercises, standardized tests, test booklets, answer sheets or any other similar consumable material. Consider them copyrighted.
• Don’t copy any work simply to avoid purchasing it.
• Don’t think it is OK to copy a work just because your supervisor told you to.
• Don’t continue to duplicate and distribute copies of a copyrighted work from term to term, even if you sought permission for the original use. Seek permission each time, unless it was understood that the use would be ongoing.

The “fair use” exception is written into federal copyright law to provide educators the ability to make limited use of copyrighted works for instructional purposes without obtaining the permission of the copyright holder. Fair use means that it is OK to duplicate a small portion of a work if it will be used in a way that is not harmful to the work’s commercial value. (You don’t copy a chapter of a book to avoid buying it.)
 
The government has set guidelines for what constitutes fair use in the educational setting, and schools must meet only these minimum standards. Fair use does not allow an educator to copy anything anytime. The exception is very limited, as described below.

General fair-use guidelines

These guidelines cover situations in which individual teachers wish to duplicate copyrighted works but do not have reasonably sufficient time to get permission.
 
1. An educator may make a single copy of any of the following for use in teaching or preparation to teach a class:

• A chapter from a book.
• An article from a periodical or newspaper.
• A short story, short essay or short poem.
• A chart, graph, diagram, drawing, cartoon or picture from a book, periodical or newspaper.

 2. An educator may make multiple copies (no more than one copy per pupil in a course) for classroom use or discussion, provided:

• The copying is brief and spontaneous.
• It meets the cumulative effect test.
• Each copy includes a notice of copyright. (Copyright notice generally includes the year of copyright, a copyright symbol or the actual word "copyright," and the name of the copyright owner.)

 Each of these terms has a specific definition:
 
Brief:
(You may exceed the numerical limits stated to complete an unfinished line of a poem or unfinished prose paragraph.)
 
Poetry

• A complete poem, if it is fewer than 250 words and printed on no more than two pages.
• An excerpt of no more than 250 words of a longer poem.

Prose

• A complete article, story or essay of fewer than 2,500 words.
• An excerpt of no more than 1,000 words or 10 percent (whichever is less) of a prose work that is more than 2,500 words. (If 10 percent is less than 500 words, you can copy up to 500 words and still stay within the guidelines.)

Illustration

• One chart, graph, diagram, drawing, cartoon or picture per book or per periodical issue.

"Special" works (Certain works in poetry, prose or "poetic prose," that often combine language with illustrations, but are fewer than 2,500 words in entirety.)

• An excerpt that is not more than two of the published pages of any single special work and contains no more than 10 percent of the words found in the text.

Spontaneous:

• When it is the individual educator’s idea to copy a work.
• When the decision to use the work and the most effective moment to use it for teaching purposes are so close together in time that it would be unreasonable to expect a timely reply to a request for permission.

Cumulative effect test:

• The material is for only one course in the school in which the copies are made.
• You have not copied more than one short poem, article, story, essay or two excerpts from the same author or more than three works from the same collective work or periodical volume during one class term.
• There have not been more than nine instances of such multiple copying for one course during one class term. (These limitations do not apply to current news periodicals and newspapers or current news sections of other periodicals.)
• You have not charged any student beyond the actual cost of the photocopying. (This is prohibited.)

Fair use of musical works

You may:

• For academic purposes other than performance, make one copy per student of excerpts of works, provided that the excerpts do not constitute a performable unit of the work, such as a section, movement or aria, and are not more than 10 percent of the entire work.
• Edit or simplify copies of written musical works you have purchased as long as the fundamental character of the work is not distorted. (Distortion would include altering the lyrics or adding lyrics if none exist.)
• Make a single copy of recordings of performances by students for evaluation or rehearsal purposes. Either you or the educational institution may retain this copy.
• Make a single copy of a sound recording (such as a tape, disc or cassette) of copyrighted music from sound recordings owned by the educational institution or yourself for the purpose of constructing aural exercises or examinations. Either you or the educational institution may retain these recordings. (This pertains only to the copyright of the music itself and not to any copyright that may exist in the sound recording.)

You may not:

• Make copies of written musical works for the purpose of performance other than emergency copying to replace purchased copies, which for any reason are not available for an imminent performance, with the understanding that purchased replacement copies will be substituted at a later time.

 Any emergency copies should include the copyright notice that appears on the original printed copy.