Doug Johnson

Are You the Copyright Cop?
with Carol Simpson, Assoc. Professor, School of Library and Information Sciences, University of North Texas
Media Matters, Leading and Learning, April 2005

• The district purchases a single use license for Photoshop™, but Bob installs it on all the computers in his classroom.
• Juanita shows Disney’s The Little Mermaid as a reward for the class doing exceptionally well on a recent test.
• Matt adds images taken from various Internet sites to a multimedia presentation he uses to complement his lecture on Egypt.
• Laura downloads MP3 music files from an Internet using file swapping service to listen to while working on her lesson plans.
• Jamal copies short stories and essays from a variety of magazines, textbooks and websites to create an anthology for his AP English class.
• Paula transfers an educational film to videotape since the district has decided it will no longer support its 16mm projectors.

By and large, educators are honest and ethical. Neither Bob, Juanita, Matt, Jamal nor Paula in the examples above would ever contemplate robbing a bank, burgling a house, or shoplifting from a store. Yet, the illegal and unethical actions above are all too common in many, if not most, schools today.

Interpreting, and to some extent enforcing, copyright policies has long been regarded as a responsibility by the school’s library media specialist. Intellectual property, before schools adopted computers and connected to the Internet, was found primarily in print and audiovisual formats – both largely controlled by the school’s librarian. The librarian is among the few educators whose professional training includes information about copyright and has traditionally been viewed as the local expert on intellectual property issues. The librarian, rightly or wrongly, has been forced into the position of copyright enforcement simply to protect the school from the unintentional crimes committed in the guise of “what’s good for the kids.” Since most potential infringements passed through the library, the media specialist was the point person in the intellectual property wars.

However, with intellectual property increasingly available in digital formats, the role of the library media specialist as the “copyright cop” is untenable. All educators who deal with technology need to understand the legal and illegal uses of intellectual property if a school hopes to both keep free of copyright lawsuits and provide ethical models for students to emulate.

Why does copyright abuse happen in schools?

 “Why does intellectual property not merit the same respect among educators as physical property?” Our experience shows:

1.    Lack of knowledge and misperceptions about copyright: “Isn’t everything on the Internet free of copyright?”
Formal training slights educating teachers about copyright. NCATE standards do not address copyright, and only two of NCATE’s affiliate accreditation organizations (ISTE and AECT) have an understanding of copyright as one of their competencies. This situation results in a number of poorly understood concepts about the use of intellectual property in schools:

• Fair use. Educators too often interpret fair use as “any use so long as it is done in school” or “if it benefits the kids, it must be ok” or “we aren’t making any money on it.” But even CONFU (that’s Conference on Fair Use, not just CONFUsion abbreviated) determined:
• “[there] is no simple test to determine what is fair use. Section 107 of the Copyright Act sets forth the four fair use factors which should be considered in each instance, based on particular facts of a given case, to determine whether a use is a “fair use”: (1) the purpose and character of use, including whether such use is of a commercial nature or is for nonprofit educational purposes, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and (4) the effect of the use upon the potential market for or value of the copyrighted work.”
• Beyond the 4 tests of fair use prescribed in the law, there are several guidelines that are generally agreed to be fair use. Each of the guidelines affects a specific type of use, such as using copyrighted materials in multimedia presentations. The perceived difficulty in determining whether a use meets the statutory fair use rules as above, or the various guidelines, dissuades many educators from even making a good faith attempt to question whether their use of intellectual property is legal.
• Information found on the Internet. There are plenty of myths surrounding copyright, especially as it relates to information found on the Internet. Brad Templeton lists 11 including “If it doesn’t have a copyright notice, it’s not copyrighted.”
• The difference between buying property and buying the right to use software. Except in the case of open source software, by buying a product such as Photoshop™, you are getting the right to use the software, not the software code itself, in usually a fairly restricted basis that is explained in very small print on the license. Oftentimes the license is only viewable through a small window during installation.

The Digital Millennium Copyright Act (1998) and the multimedia guidelines (1996) attempt to address copyright changes that new technologies and media have brought about, but the impact of these has not been widely discussed in the professional literature that teachers actually read. Since so many teachers have practiced copyright carte blanche for so long, when someone attempts to correct their bad habits, the confrontation is likely to result in the messenger taking a slug.

2.    Ease of copying and convenience: “So if I just click this button…”
Violating copyright is now faster and easier than it has ever been. A computer program, file or digital image copies in seconds, unlike copying print materials that require a trip to the photocopier and there laboriously reproducing the source, one page at a time. Peer-to-peer file sharing services, video digitizers, and even the simple “copy” and “paste” commands all contribute to the ease of violating copyright laws. Teachers gleefully demonstrate to students how simple it is to find a fetching graphic and “keep it on your computer to use whenever you like.” The development of large libraries of the works of others, without payment or permission, has resulted in a climate of entitlement.

Often teachers are pressed for time, and simply feel they must violate copyright because there is no other option. A common example of this type of activity is showing entertainment videos to keep students occupied during rainy day recess, for perfect attendance rewards, or for assorted babysitting activities such as when teachers are behind in their grading.

3.    Intangibility of intellectual property: “You still have your copy. What exactly have I stolen?”
Were I to walk into a Wal-Mart store and tuck a camera under my coat and walk out, it is obvious that I have deprived Wal-Mart of its property. I have the camera; Wal-Mart does not. However, were I to borrow a friend’s installed copy of Photoshop™, install another copy of it on my computer, and then return the physical program to my friend, the deprivation of property becomes an abstract concept instead of a physical reality. The friend has his program back, so nothing is really missing, is it?

The intangibility of intellectual property often leads people to view copyright violations as a “victimless” crime. Denying an intellectual property holder his potential profit is not deemed as serious as depriving a physical property holder of a currently held physical possession. Besides, schools can’t afford to actually purchase all the software they truly need, so making an extra copy “for the kids” doesn’t hurt anyone since the person who bought the software still has his own copy. Some rationalize, saying that by training kids on commercial software, you might even be promoting sales of the software to the kids’ parents.

On an even more abstract level is understanding that even when there is no loss of remuneration, intellectual property holders still have the right to control the use of their property, especially regarding use of materials that may no longer be available for purchase (out of print or out of production) or works that have never been available for sale (photographs, letters, emails, etc.).

4.    Perception of copyright violation as a blue law. “Come on. Everyone has always done this!”
Some copyright violations (such as showing movies that do not have a public performance license for reward purposes, adding copyrighted material to a website without permission, using a transparency of a copyrighted cartoon in an in-service workshop presentation, copying workbook pages from sample copies, or adding unlicensed music in the background of a movie) are so often committed and of such long standing past practice that many educators are genuinely surprised that these are copyright violations. Even administrators will retort, when informed of some blatant offense, “You show me one school that has been successfully sued for that!”

5.    Difficulty and cost of obtaining copyright permission: “You want me to fill out a form and then wait?”
Given enough time and usually the willingness to pay for the right, most intellectual property holders will allow some use of copyrighted materials. But determining how and to whom the request should be made, waiting for a response (even by e-mail), and paying any required charge for the use is often more a confusing, time consuming, and expensive task that many teachers are willing to undertake. Publishers and other copyright owners don’t make compliance simple for educators, and frequently refuse to answer questions about permissions and licensing. Eventually educators tire of the game and just ignore the option.

6.    They use poverty or emotional appeals as justification for illegal use: “I am only doing this for the good of the children.”
Teachers view their job as a means of bettering the lives of children and improving society, as well they should because they do. But illegal activities, even when done for good causes or because of poor funding, are still illegal. It’s that old “ends don’t justify the means” problem. A fair use analysis includes much more than simply a finding of non-profit educational use.

7.    A growing sense of “civil disobedience” in reaction to extended copyright protections. “It’s little me against the big and powerful.”
Laws which grant greater and longer copyright protections to owners, more sophisticated physical copyright protection schemes, and increased consolidation of ownership of intellectual property by powerful for-profit corporations all heighten the perception among users that the laws unfairly protect the wealthy few. In times when educational funding is viewed by many as inadequate and decreasing, a certain Robin Hood mentality develops. The idea that the big corporation in New York will never know what is happening in Small Town, America, pervades decisions on using copyrighted materials.

8.    The complexity of copyright.
Guidelines, fair use tests, permission, don’t use at all. Which applies? Copyright has so many shades of grey, without a law degree one can never be certain he is making a correct interpretation, and even lawyers disagree. Even a teacher or administrator who diligently tries to follow the letter of the law may find himself in a copyright quagmire. Why bother to obey when you are just going to get into trouble anyway?  In areas of new technology, none of the old rules fit, so if one were inclined to play by the rules, what rules should you apply? New regulations, such as the TEACH Act, come down with no interpretation on areas of internal conflict, so school personnel are forced to interpret complex legislation in ways that beg to become a test case in court.

9.    Mixed messages.
Conflicting district policies and practices also play into the puzzle. “Do I follow district policy on copyright, or do I copy these materials what will help our students score higher on the standardized test?” When one can’t figure a way to understand the copyright regulations, it is simpler and more expedient to ignore them. Seeing administrators ignoring copyright (through neglect or ignorance) only fuels the conviction of teachers and paraprofessionals that carte blanche is appropriate, despite what the Board policy may state. The fact that few copyright actions against schools are publicized compounds the idea that copyright is a “no big deal” consideration. However, if you speak privately with school officials in a local area, virtually every one can identify a school in the area that has received a cease and desist letter, or been the target of an actual copyright suit within in last 15 years.

Walking the fine line
Following copyright laws in schools comes down to a few radically simple ideas. The first is a concept that may not have been considered in many schools: copyright is federal law. Schools are quite serious about many federal laws and regulations. The Americans with Disabilities Act, for example, is well respected and enforced. In our civics classes we regularly tell students that when one doesn’t agree with the law, one works to change it rather than just ignoring it. However, we appear not to practice what we preach.

The second idea is that obeying copyright is an ethical necessity. While following the current copyright act may not be the most popular course of action with teachers, the fact that students are observing us and modeling their behavior on ours is the single most important reason to obey the law. Students are savvy, and they hear about copyright on the news and read about it in the popular press. Downloading copyrighted music has made many students aware of copyright issues. If they see teachers who blithely copy materials (or even teach students to do the same) without a discussion of copyright implications, the students are given implicit permission to do the same.

The final idea is that copyright compliance is the right thing to do. Ethical use is a difficult concept to teach in many schools, simply because of the religious connotations that are attached. But in this context, we are considering the theft of someone’s work and property. What some educators don’t realize at a conscious level is that writers make their living creating educational materials, and if they don’t sell them, the authors get no royalties/payment. The key point to remember is that many of those authors are educators themselves. Students create marketable works in stories, poetry, and artwork. Teachers are creators as well. Taking from one is the same as taking from another. The golden rule aspect of ethics cannot be overlooked.

We often wink at students and say “Do as I say, not as I do.” But in an economy increasingly fueled by goods that are purely intellectual in form, such statements when made about copyright will harm our students whose livelihood will one day depend on its protections.

How schools can help prevent copyright violations

…the RIAA continues its aggressive campaign to sue people who illegally share music online, many schools and colleges are facing increased technical and legal pressures to halt the swapping of music and movie files over campus and school district Internet connections. U.S copyright laws allow for damages of $750 to $150,000 for each song offered illegally on a person’s computer. The RIAA has thus far filed 261 federal lawsuits, including a suit against a 12-year-old girl. Additionally, at least 10 universities and colleges have been served with subpoenas demanding that they help the recording industry identify possible targets for such lawsuits. Tom Hutton, NSBA Legal Clips, October 2003 <www.nsba.org/site/doc_cosa.asp?TRACKID=&VID=50&CID=491&DID=32255>

Library media specialists, technology directors, and administrators are unlikely to prevent every violation of copyright law and abuse of intellectual property in their schools, but that does not mean they should not make good faith efforts to do so. In fact, it makes very good sense to take all reasonable efforts to insure compliance with copyright laws related to activities common in schools.

When a school is identified as being a party to a legal action involving copyright infringement, one of the factors considered is how blatant the infraction appears to be. If, for example, the school were allowing students to download and share MP3 music files at a music swap fest sponsored by the student council, a court might find that the school was complicit in any infringing activity. If one teacher, on her own computer, installs software for which the school does not own a license, the district might not be liable if the district can show that the teacher knew the rules and the district took appropriate steps to prevent the installation of unlicensed software. The teacher, herself, would probably be liable, but the district might not be considered complicit. However, if the district technology office installs such software in an entire school or across the district, there would certainly be reason to complain of flagrant disregard of copyright requirements and the district would have legal responsibility for the infringement.

So how should administrative personnel address the issue without becoming “Big Brother”? Here are some common sense recommendations on dealing with the thorny issue of copyright.

1.    Make sure easily understood information is available about copyright and fair use issues, and that getting it in teachers’ hands is an ongoing effort.
While acknowledging that copyright is a complex and evolving subject, schools still need to teach and provide information about proper intellectual property use as a part of ongoing staff development efforts. Schools can and should provide short, readily understood guides regarding copyright of all materials, but especially those in digital formats. The Groton (CT) Public Schools have an online copyright manual (http://www.groton.k12.ct.us/mts/pt2a.htm) and the University of Texas System has developed an online “Copyright Crash Course ” (http://www.utsystem.edu/OGC/IntellectualProperty/cprtindx.htm) that schools may wish to model. (The Crash Course is geared toward university users, but the school exemptions still hold true for PK-12.) Basic copyright notices should be placed on circulating software, videos, Internet terminals, as well as photocopiers. Some notices have required wording that will protect the school from lawsuits if particular types of infringements take place. Technology and library newsletters to staff should address intellectual property issues.

2.    Develop an understanding that remuneration for intellectual property benefits the user as well as the creator.
Copyright laws benefit individuals in two ways. First, teachers and students themselves may be creators of intellectual property for which they would like control and the potential for remuneration. (Teachers need to remember that schools may own the rights to teacher-developed materials.) Second, those who create intellectual property (software for example) are more likely to support and continue to develop that property if there is a financial reward in doing so. These concepts should be understood by all school staff members as well as students.

3.    Conduct software audits of your schools and monitor photocopying.
The Mankato School District uses Apple Remote Desktop to scan all (2000+) district computers for executable programs every two years. The technology staff then compares the programs found with the licenses on file. When a program is found on a computer for which the district does not have a license, the technology office sends a letter to the user of that computer, carbon-copied to building principal, asking the user to provide proof of purchase of the program for our files, purchase the program and then send a copy of the license to the office, or remove the program from the computer. Were the district to be audited, these actions will help show due diligence in enforcing copyright. The Software and Information Industry Association identifies additional software programs that can perform similar audits (http://www.siia.com/piracy/audit.asp).

Personnel in district print shops or who may run building photocopiers need to have a firm understanding of copyright laws. If a teacher requests copies of an item that may be copyrighted, it should be returned to the building principal for his/her signature approving the printing job. Photocopying consumable materials is a common infringement, and should be monitored closely.

4.    Work to maintain budgets that allow teachers to legally purchase needed educational materials.
A budget for software, a process for selection and adoption of software, and the purchase of building or district licenses when feasible all decease the likelihood of illegal software use. If teachers use videos for reward purposes, the district should purchase public performance licenses. Royalty free music and clip art with few use restrictions should be available to teachers and students. Extracurricular activities, not having the same fair use protections of direct teaching in the classroom, need extra guidance and supervision in their use of copyrighted materials such as videos for lock-ins, music for dances, and images/music for fundraisers like cd-rom yearbooks.

5.    Designate a person on staff to become the copyright expert.
Schools need a “go-to” person when copyright questions arise. These people should have the budget to receive training in copyright issues as they pertain to schools and access to resources such as Simpson’s Copyright for Schools to help them answer questions. These folks also need the backing of the administration if an unpopular answer is provided to a copyright question. The district needs a copyright coordinator who will monitor licenses, conduct periodic audits, and act as the registered copyright “agent” identified in the Digital Millennium Copyright Act’s online service provider protections. Such a position can protect the district from infringement suits resulting from copyrighted material posted (knowingly or unknowingly) on school web pages. The IT department may want someone on the staff to be a certified software manager (http://www.siia.com/piracy/seminars.asp) to verify compliance with licensing requirements and tracking.

6.    Create a deep understanding that we are models of ethical and legal behavior in our students.
One does not need to work with young people very long before realizing that they learn more from one’s behavior than from one’s words. If we wish to develop moral, law-abiding citizens, we as educators must act ethically and legally ourselves. Copyright should be a part of the information literacy and technology skills curriculum. The topic should be dealt with seriously, and with respect. Using a “nudge, nudge, wink, wink” curriculum that says “just use discretion and you won’t be caught” conveys the message that infringement is perfectly fine. It says that the end justifies the means. If you were to voice those sentiments to the School Board to approve as goals of a program, they wouldn’t fly; yet they may be current practice. Perhaps a technology skills curriculum audit is in order, along with the software audit.

Congress provided certain exemptions from the requirements of copyright so that schools could use limited amounts of published and marketed materials to assist in teaching students. The exemptions were not intended to take the place of purchased materials, nor were they designed to contribute to extracurricular activities. The intent was to give the schools an assist when they just needed “a little something.” Unfortunately, we have come to believe that “if a little is good, a lot is better.” Having an understanding of the limits of copyright and fair use is essential to sound business practices in schools as well as sound educational practices. Knowing the limits and knowing the rules will guide responsible educators to protect their schools and their personnel from legal action concerning copyright.

Resources

• Final Report to the Commissioner on the Conclusion of the Conference on Fair Use. (1998). <www.uspto.gov/web/offices/dcom/olia/confu/confurep.htm>
• Groton Public Schools (Mystic, Connecticut). Copyright Implementation Manual (2002). <www.groton.k12.ct.us/mts/eg1.htm>.
• National Council for Accreditation of Teacher Education. NCATE Unit Standards (2002). <ncate.org/standard/unit_stnds_ch2.htm>
• National Council for Accreditation of Teacher Education. Program Standards (2002). <ncate.org/standard/programstds.htm> (AECT and ISTE program standards)
• Simpson, C. Copyright for Schools: A Practical Guide. (2001). 3rd ed. Linworth.
• Templeton, B. (200?). “10 big myths about copyright explained,” <www.templetons.com/brad/copymyths.html>
• University of Texas System. (2001). “Copyright Crash Course” <www.utsystem.edu/ogc/intellectualproperty/cprtindx.htm>

2008 addendum to “Are You the Copyright Cop?”
This article still accurately reflects traditional thinking about copyright instruction and enforcement in schools. There recently have been, however, some powerful and thoughtful trends that have changed my thinking about copyright and how we deal with in schools. I would encourage all educators to read these materials:

• Aufderheide, Pat, Renee Hobbs and Peter Jaszi “The Cost of Copyright Confusion for Media Literacy” Center for Social Media. http://www.centerforsocialmedia.org/files/pdf/Final_CSM_copyright_report.pdf
• Aufderheide, Pat and Peter Jaszi “Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video” Center for Social Media http://www.centerforsocialmedia.org/resources/publications/recut_reframe_recycle
• Hobbs, Renee, Peter Jaszi and Patricia Aufderheide “Ten Common Misunderstandings about Fair Use” Temple University Media Education Lab http://mediaeducationlab.com/index.php?page=274
• Hobbs, Renee “Fair Use and the Educational Guidelines: FAQ” Temple University Media Education Lab http://www.mediaeducationlab.com/index.php?page=275
• Johnson, Doug “Beating the No U-Turn Syndrome: modifying our approach to copyright instruction and enforcement” https://dougjohnson.wikispaces.com/NUTS
• Lessig, Lawrence Free Culture. Penguin, 2004.
• Stallman, Richard M. “Did You Say “Intellectual Property”? It’s a Seductive Mirage.” Free Software Foundation. http://www.fsf.org/licensing/essays/not-ipr.xhtml

My personal view is that our efforts in schools when teaching both students and teachers about copyright is that we need to stress the outer limits of fair use, not just the “safe harbors,” if we are to avoid producing a nation of intellectual property scofflaws.