Comments on “Copyright Primer for Administrators” by Hall Davidson

The guide provides some good resources. The Quiz for Administrators on pages 3 and 4 of the first PDF file (over 2.5 MB in size) is particularly helpful, offering practical case study examples that can be used in workshops / training sessions with both teachers and administrators. The Copyright Guidelines for Administrators (PDF file) also provides useful, categorized examples of situations that are and are not “fair use” examples in educational contexts. However, I would add the following caveats and observations to the recommendations provided on page 2 of the first guide:

1- Teachers, students and administrators should NOT mistakenly think copyright responsibility is solely or primarily on the shoulders of the building principal. Davidson writes, “But in the final analysis, it is the administrator who bears responsibility for the actions of stakeholders in all roles of the education environment in the learning environment for young people.” My point is, yes administrators are responsible and need to be well informed, but teachers and students are accountable too and need this information also. Teachers should not have a false perception of “safe harbor” security, thinking that their administrator is the only one who will be accountable (and in the worst case scenario, actually sued) if copyright law is violated.

2- Davidson (as do many others when it comes to educational fair use issues) references the “Fair Use Guidelines For Educational Multimedia” (www.utsystem.edu/ogc/intellectualproperty/ccmcguid.htm), a document published in 1986 that attempted to establish “bright line rules” for determining copyright compliance and educational fair use legality. Teachers can use the standards, which are in some cases overly conservative, but must understand that these guidelines and this document ARE NOT used by courts of law to determine copyright and intellectual property rights infringement. The opinion that these guidelines should NOT be used by educators in the classroom is shared by many. This lack of consensus on the use of the guidelines by many constituents (including “for-profit and nonprofit publishers, the software industry, government agencies, scholars and scholarly societies, authors, artists, photographers and musicians, the movie industry, public television, licensing collectives, libraries, museums, universities and colleges”) is documented on a link on the above page, “CONFU: The Conference on Fair Use” (www.utsystem.edu/ogc/intellectualproperty/confu.htm). This quotation from the CONFU webpage is representative of the type of disagreement that exists on these issues:

“There is so much disagreement over whether the Image, Distance Learning and Multimedia Guidelines fairly describe the scope of fair use in their respective contexts that CONFU failed to produce consensus documents in these areas after 2 1/2 years of work.”

The conclusions from this discussion are the important items to read and understand. Summarized, they are:
1- Use the “fair use guidelines” only as a starting point for exploring and understanding copyright issues.
2- Do not regard compliance with the “fair use guidelines” as “safe harbor” (just because a teacher is in technical compliance with the guidelines, this is no guarantee that their use of copyrighted materials constitutes “fair use” or is NOT a violation of US Copyright law.
3- If you use the “fair use guidelines” you MAY be “undercutting your rights to a more expansive scope of fair use.”
4- There are no guarantees when it comes to determining fair use. (The reason, and this is my own analysis, is that the ultimate arbiters of these things are courts, which are fickle and changeable)
5- There IS NO LINE (no bright line) when it comes to determining fair use.

What the lawyers you consult with on this issue and the courts refer to when it comes to questions about copyright law and fair use (including educational fair use) to is Title 17 of the US Code: Copyright Law of the United States (www.copyright.gov/title17.) This is the same reference teachers should use to determine fair use, rather than the “Fair Use Guidelines for Educational Multimedia.” Teachers using the “Fair Use Guidelines for Educational Multimedia” often get a false sense of confidence in their use of copyrighted materials, which may or may not be supported by actual US law and current case law / court decisions. Specifically, refer directly to section 107 that addresses “Limitations on exclusive rights: Fair use” (www.copyright.gov/title17/92chap1.html#107).

More suggestions for using the 4 considerations highlighted in section 107 is explained in greater detail in my article from Winter 2003, “Copyright 101 for Educators” (www.wtvi.com/teks/02_03_articles/copyright.html). I also recommend that educators read the “Fair Use of Copyrighted Materials” website by provided by the Georgia Harper, Senior Attorney for Intellectual Property for the University of Texas System (www.utsystem.edu/ogc/intellectualproperty/copypol2.htm). For an even broader and more comprehensive overview of issues involved in IP educational discussions, her “intellectual Property Policy and Guidelines” website is also excellent (www.utsystem.edu/ogc/intellectualproperty/polguide.htm).

These are components in the UT System’s “Crash Course on Copyright” (www.utsystem.edu/ogc/intellectualproperty), a class every educator in the United States arguably needs to not only take, but also understand and appropriately apply in the classroom every day with students.