Intellectual Property

Copyright Issues

By far, the most applicable category of intellectual property law in schools is copyright. Copyrights are intangible rights granted through the federal Copyright Act to an author or creator of an original artistic or literary work that can be fixed in a tangible [Page 466]means of expression such as hard copies, electronic files, videos, or audio recordings. Copyright law protects literary, musical, dramatic, choreographic, pictorial, sculptural, and architectural works as well as motion pictures and sound recordings. Each copy-rightable work has several “copyrights”-the exclusive rights to make copies of the work, distribute the work, prepare derivative works, and perform or display the work publicly.

With some important exceptions, two of which are highlighted here, teachers and students may not use the copyrighted works of others without permission of the copyright holders. The first exception, fair use, is the most important and most often cited. The fair use of a copyrighted work, “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” If the use is a fair use, then the user need not obtain advance consent of the copyright holder. Determining whether the use is fair requires the application of four factors: purpose and character of the use, nature of the copyrighted work, amount and substantiality of the portion used in relation to the work as a whole, and effect of the use upon the potential market for or value of the work. The second exception is also fairly common in schools; it is not an infringement for teachers and students to perform or display a copyrighted work in the course of face-to-face or online/distance education teaching activities. For electronic display or performance, the school must comply with several additional requirements.

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