Tech Leadership

Is a Copyright Quagmire in Your Future?

by Carol Simpson

That educational law class you took probably didn’t touch copyright law at all. If you rely on your retained counsel to keep you clear of copyright quagmires, you might be surprised to know your attorney may not have more education on copyright than you.

Copyright and intellectual property are not required classes in law school, and your attorney may be at square one when faced with a copyright question.

At a time when electronic access to published work never has been easier, it’s never been easier to inadvertently violate copyright protections. It’s not uncommon to post copyright-protected materials on the district’s website, place copyrighted book pages in online (or print) curriculum guides, distribute electronic (or print) copies of professional journal articles to staff or use a single copy of computer software beyond the boundaries of its license. These actions can impute liability to the superintendent and the board of education. While most cases are settled out of court, fines, attorney’s fees and sleepless nights add up to a price higher than most administrators wish to pay.

Severe Limitations
Schools enjoy educational copyright exemptions when technology is used to present content directly to students in a classroom setting. However, exemptions are severely limited when presenting information to staff, posting materials on the web or using work for extracurricular activities.

Technology copyright issues encompass three topics: computer software, the Internet and video. Virtually every non-contracted use of technology materials in schools requires a copyright fair use assessment asking whether the materials are used for presentation of content to students for instructional purposes. The further you wander from that standard, the more at-risk you are. The key to any preparation for copyright fair use assessments is the presence of a strong board-approved copyright policy. If your school district has none, that should be your starting point.

Computer-software watchdog groups offer rewards for tips on possible software pirates. Disgruntled employees and students may be quick to report suspected violations, and school districts settle claims sometimes for hundreds of thousands of dollars. The Los Angeles Unified Schools paid a $300,000 fine, purchased replacement software at full retail value and complied with procedural requirements to settle a claim for illegal software at one small high school. Total cost to the district was reported to be more than $5 million.

Tracking purchased software licenses, plus a clear policy on what may be installed, are essential protections that a district’s technology director can develop. .

Wide Web Protections
The Internet is troubling because there are so few cases on which to gauge judicial standards. Posting materials (sending) and downloading materials (receiving) can both cause problems. The TEACH Act, addressing copyright fair use for online education, gives schools permission to post works online for limited student use, but mandates certain administrative requirements. The law is too complex to describe here, but ample materials exist detailing the rules.

Remember: Almost everything on the web is protected by copyright, even without a notice or copyright symbol. Graphics borrowed from the web in school newsletters and on web pages may be infringements. Take care when publishing protected material such as copyrighted journal articles or even student work, which is protected by copyright automatically upon creation.

Use of video is a common offense in K-12 schools, second to the photocopy machine. Showing a video for entertainment or extracurricular use is not among the protected uses. Unless the performance presents course information directly to students, the school requires a public performance license. Even use for staff development requires a license.

Now that transfer of movie files may be criminal, anticipate test cases. Students are often the culprits involved, but it wouldn’t be inconceivable for a teacher to acquire an illegal copy of a film with a curriculum tie-in and show that copy to multiple classes. Using an illegal copy of a program generally voids any claim to educational fair use.

Personal Liability
This overview barely touches the surface of potential quagmires for schools. Because copyright usually is a civil matter, school officials can be held personally liable for infringements.

Fortunately, most schools have staff members who are educated on matters of copyright: librarians. These individuals could be consulted for a more thorough analysis of specific situations before you consult an attorney. The librarian can educate top administrators on the necessary jargon and concepts to allow a better informed discussion when copyright matters need to be discussed with a legal adviser.

Carol Simpson is associate professor of library and information sciences, University of North Texas, P.O. Box 311068, Denton, TX 76203. E-mail: carol_simpson@unt.edu. She is the author of Copyright for Schools: A Practical Guide (Linworth) and Copyright Catechism: Practical Answers to Everyday School Dilemmas (Linworth).