By Attorney Thomas B. Mooney, Neag School of Education, University of Connecticut

The “Legal Question of the Week” is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short, law-related questions of practical concern to school administrators. Each week, we will select a question and publish an answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues. We may edit your questions, and we will not identify the authors. Please submit your questions to: legalmailbagcasciacorg. _________________________________________________________________________________________

Dear Legal Mailbag:

When I went for my 092 certification, I didn’t realize that I would confront so many different legal issues as an administrator. Liability, special education, Title IX, FERPA, constitutional rights, teacher evaluation and discipline, the ADA, you name it. Now I am finding myself dealing with copyright issues. Specifically, one of my fourth grade teachers is big on worksheets. I don’t have a problem with that. But the secretary in the office pulled me aside the other day and told me that this teacher has gone overboard with the copying.

I called the teacher down to my office, and she explained that she is just trying to save money. Apparently, she has a workbook that she really likes. She figured that we don’t have money in the budget for additional materials, so she has been making copies of almost every worksheet in the book. I expressed concern that she might be violating copyright. But she blithely assured me that the copyright law gives teachers fair use of copyrighted materials for educational purposes. She even claimed that we are OK as long as she is not selling the copies.

That did not sound right to me, and I don’t want to be a worrywart. But I can’t help myself on this one. Should I do anything or are we OK?

Signed,
Worrywart Principal

Dear Worrywart:

Sometimes it pays to worry, and this is such a time. The teacher got the phrase right – “fair use” – but she got the concept wrong. The United States Copyright Act, 17 U.S.C. § 107, (the “Act”) specifically states:

“[Notwithstanding copyright protections,] the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not infringement of copyright.

The question here is whether the teacher made “fair use” of the single copy of the workbook that she owns as she repeatedly made multiple copies of the worksheets.

In determining whether “fair use” has occurred, the courts will apply four nonexclusive factors that are set out in the same statute:

• the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
• the nature of the copyrighted work;
• the amount and substantiality of the portion used in relation to the copyrighted work as a whole;
• the effect of the use upon the potential market for or value of the copyrighted work.

As soon as this teacher mentioned that there is no money in the budget to buy the workbooks, she unwittingly conceded that her actions constitute copyright infringement. She certainly exceeded fair use in having virtually the entire workbook copied. Moreover, by copying the worksheets because the district couldn’t afford to buy the workbooks, the teacher established that the copyright holder’s rights were violated. If teachers could simply copy worksheets wholesale as was the case here, fewer teachers and/or school districts would purchase the book.

Please print up this response and give it to the teacher. And don’t worry. That will be fair use of the Legal Mailbag.