copyright infringement question

[Maria D]

A lot of people here have expertise in copyright matters, so I thought I'd' ask this here. Would it be a copyright infringement if a teacher scanned complete chapters of a textbook and uploaded the pdf documents to an internet site that is only accessible by teachers and students in the school district? I'm thinking that it would definitely NOT be allowed but some of my colleagues believe that the fact that it is on a "closed" website makes it OK.

Anyone know?

edited to add: This would be done for the purpose of providing more students access to the text as there are not enough textbooks to go around. It is not for the purpose of the students having an alternate way to read a text they were given by the school.

 

[justginger]

Hmmm...I'd be interested to know what the real answer to this is.

I would be inclined to side with you. It seems to me that it goes against copyright to provide additional individuals with text that they have not legally purchased, which is what you are describing. Rather than purchase enough copies for the entire student body's use, they are scrimping and copying text. How is it different from purchasing only ONE copy of the book and allowing 2000 students to use it? I think they're treading on thin ice.

 

[marymm]

There is a fair use exception - whether your friend's use would be considered such I don't know.
Here's a quote from the US Copyright Office:

"Fair Use

One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the copyright law (title 17, U. S. Code). One of the more important limitations is the doctrine of “fair use.” The doctrine of fair use has developed through a substantial number of court decisions over the years and has been codified in section 107 of the copyright law.

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

The purpose and character of the use, including whether such use is of 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
The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission."
http://www.copyright.gov/fls/fl102.html

But honestly, I would be surprised if the School District in question hasn't already dealt with this issue and received professional (legal) advice and in turn has disseminated specific guidelines and resources to its teachers and library staff on exactly this question?

 

[zoebartlett]

I'd be hesitant to do it. I guess I'd only do it if I knew it had been approved before hand.

 

[Circe]

It's not fair use, as I understand it, which tends to be limited to incomplete sections of longer pieces.

That said, it's something teachers have been doing since time immemorial, or at least since mimeograph machines were invented, because, hey! textbooks cost a lot of money, and not all students are rich. These teachers are not usually sued by publishers ... but people seem to get more litigious on the internet.

My advice? Just to CYA, have her write to the publisher to ask. It's a rare PR dept. that doesn't understand the good-faith value of a gesture like this.

 

[Maria D]

There is a fair use exception - whether your friend's use would be considered such I don't know.
Here's a quote from the US Copyright Office:

"Fair Use

One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the copyright law (title 17, U. S. Code). One of the more important limitations is the doctrine of “fair use.” The doctrine of fair use has developed through a substantial number of court decisions over the years and has been codified in section 107 of the copyright law.

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

The purpose and character of the use, including whether such use is of 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
The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission."
http://www.copyright.gov/fls/fl102.html

But honestly, I would be surprised if the School District in question hasn't already dealt with this issue and received professional (legal) advice and in turn has disseminated specific guidelines and resources to its teachers and library staff on exactly this question?

Thanks marymm. Surfing around, I found this at http://www.copyright.gov/circs/circ21.pdf::
a Copying shall not be used to create or to replace or sub- stitute for anthologies, compilations or collective works. Such replacement or substitution may occur whether copies of various works or excerpts therefrom are accu- mulated or reproduced and used separately.
b There shall be no copying of or from works intended to be “consumable” in the course of study or of teaching. These include workbooks, exercises, standardized tests and test booklets and answer sheets and like consumable material.
c Copying shall not:
a substitute for the purchase of books, publishers’
reprints or periodicals;
b be directed by higher authority;
c be repeated with respect to the same item by the
same teacher from term to term.

I can't find anything that suggests it's OK to upload scanned documents as long as the website is "private" which is what some of my colleagues have been led to believe. The school district in question has not given us specific guidelines other than: you have no money for books but figure out a way to teach your classes anyway!

Zoe, I'm not about to do it.

 

[Maria D]

It's not fair use, as I understand it, which tends to be limited to incomplete sections of longer pieces.

That said, it's something teachers have been doing since time immemorial, or at least since mimeograph machines were invented, because, hey! textbooks cost a lot of money, and not all students are rich. These teachers are not usually sued by publishers ... but people seem to get more litigious on the internet.

My advice? Just to CYA, have her write to the publisher to ask. It's a rare PR dept. that doesn't understand the good-faith value of a gesture like this.

Honestly, I hadn't even thought of asking for permission! Do you really think a publisher would allow what amounts to getting around having to buy 30-50 books? This isn't just copying a few pages, but about half of a book. As a district, we haven't bought any books from this publisher in probably at least 10 years.

edited to add: I'm not doing or thinking of doing this. Some of the teachers at my school already do it and I'm getting a little miffed at the implication that we all should. My irritation is more that it's extra work for me that I shouldn't have to do because the district should provide books for our students. So I'm actually kind of "hiding" behind the idea that it's breaking the law because I don't want to take the time to do it -- even though I doubt that anyone who is will get caught or suffer any consequences.

 

[aljdewey]

Maria, you're spot on. The fact that it's on a closed website doesn't absolve the responsibility to get permission from copyright owners.

The way the fair use doctrine is constructed (each copy has to be measured against four factors of fair use in order to determine if that specific use is fair or not) suggests that it's not meant to be a wholesale answer to aggregate, ongoing copying.

A friend of mine was a social studies teacher during the time when the Berlin Wall was coming down. She did get in touch with a few publishers during that time to request permission to copy/share articles with students, and because it was a happening-right-now event, she was able to get permission from some of them (though she did say it was cumbersome and time consuming).

They were less willing to grant that same permission without paying for copies when she wanted to use them as part of her planned syllabus in subsequent semesters because it was then more of a 'replacement' discussion.

 

[Haven]

That is definitely not kosher. (That's about as close to legalese as I can get, sorry!)

My college would go bananas if they found out any of our instructors did that. Our dean of media services is in charge of getting permission for copies that any instructors want to use in a course--either on their own, or as part of a course packet.

Everything we copy has to go through the copy center first, and if it looks like someone is using copyrighted materials, they reject it. My own course packet, all 100 pages of which I created myself, has to be approved by our media services dean every single semester.

When I taught high school I had colleagues who photocopied entire novels for students.

I always find it interesting when teachers do things like this, but are then dismayed when their own students plagiarize. It's all theft IMO, just different forms.

 

[Karl_K]

A lot of people here have expertise in copyright matters, so I thought I'd' ask this here. Would it be a copyright infringement if a teacher scanned complete chapters of a textbook and uploaded the pdf documents to an internet site that is only accessible by teachers and students in the school district? I'm thinking that it would definitely NOT be allowed but some of my colleagues believe that the fact that it is on a "closed" website makes it OK.

Anyone know?

Makes no difference if it is public or private and schools/districts have been sued for it.
Publishers for the most part ignore minor copying but complete chapters and for the express purpose of avoiding buying books. Not likely.
That is copyright infringement and could bring damages of $100000.00 per title.
All it takes is one ticked off or fired teacher to make a phone call.
Besides what are they teaching the kids?

 

[Karl_K]

9th circuit ruling that is applicable:
Marcus v. Rowley, 695 F.2d 1171 (9th Cir. 1983)

For class use, a teacher reproduced substantial portions of Marcus's copyrighted booklet on cake decorating with no acknowledgment or permission. The court found that this action could not be considered fair use.

http://www.ed.uiuc.edu/wp/copyright/copyrightlaw.htm

 

[partgypsy]

Fair use, is something like taking a couple paragraphs from a novel, etc to illustrate some point. It is not fair use to copy whole sale entire chapters and post on the internet. Maybe posting on a private internet makes them less likely to get caught, but doesn't make it any more legal.
I'm surprised the college is letting them do this.

The universities I've worked in, we also had to clear we had copyright privileges before making copies for teaching purposes.

 

[partgypsy]

Here is how one university handles it.
http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/index.html
http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter7/7-d.html
It is, for example OK for one student to make a copy of a chapter.
"If a work, located within the library’s collection, is available at a reasonable price, the library may reproduce one article or other contribution to a copyrighted collection or periodical issue, or a small part of any other copyrighted work, for example, a chapter from a book.This right to copy does not apply if the library is aware that the copying of a work (available at a fair price) is systematic. For example, if 30 different members of one class are requesting a copy of the same article, the library has reason to believe that the instructor is trying to avoid seeking permission for 30 copies.


http://copyright.columbia.edu/copyright/fair-use/practical-applications/posting-course-materials-online/

The instructor is the copyright owner of the material, or
The material is made available by linking rather than copying, or

The copyright owner of the material grants permission, or

The material is in the public domain, or

The use is within “fair use” under the law, or
The use is within another statutory exception.

So- looks like if the teacher simply links to it, that is OK but not if scanned and uploaded.

 

[FrekeChild]

10%...this is complicated, but while a nice thing to do, your gut is likely spot on.

Husband gave me this link (been teaching at the university level for several years now) and he said "though I think this only applies if you post stuff that a single class can view (cannot post stuff for all students, for example)"

http://www.complexip.com/ten-percen...l-institutions-copyright-owners-disappointed/

 

[Haven]

10%...this is complicated, but while a nice thing to do, your gut is likely spot on.

Husband gave me this link (been teaching at the university level for several years now) and he said "though I think this only applies if you post stuff that a single class can view (cannot post stuff for all students, for example)"

http://www.complexip.com/ten-percen...l-institutions-copyright-owners-disappointed/

That's a great link, FrekeChild. Thank you.
Another key thing that must also occur is spontaneity, I bolded the line about that in the excerpt from your link below. If using the piece is a premeditated thing, and if the instructor would have had time to seek permission but chose not to, photocopying and distribution is not covered under fair use. If Maria's coworkers are using these copies from term to term, that is illegal.

“The safe harbor is very restrictive; it allows multiple copies to be made for classroom use only if the copying meets stated tests of brevity, spontaneity, and cumulative effect. To meet the test of brevity, the amount copied of a prose work may be ‘either a complete article, story or essay of less than 2,500 words’ or ‘an excerpt from any prose work of not more than 1,000 words or 10% of the work, whichever is less.’ The test of spontaneity requires that the decision to use the work and the moment when it is used ‘are so close in time that it would be unreasonable to expect a timely reply to a request for permission.’ Finally, under the cumulative effect test, the copying may only be for one course, no more than three articles from the same collective work or two excerpts from the same author may be used during one class term, and a teacher may not have more than nine instances of such copying for one course. In addition, the Guidelines state a blanket prohibition that copying shall not ‘substitute for the purchase of books, publishers’ reprints or periodicals’ nor ‘be repeated with respect to the same item by the same teacher from term to term.’” P. 63.

I've found that different institutions have different levels of tolerance for this sort of thing. The high schools in which I taught were extremely tolerant of this, and didn't seem to look down on it at all. My current college is extremely strict. My last college was somewhere in the middle--instructors had to do their own photocopying, and they only required permission to copy if an instructor copied more than a certain number of originals in any semester. The university in which I teach graduate school PT doesn't seem to care much at all, which is the most shocking thing to me. When I asked for the name of whoever is in charge of seeking permissions, the division secretary had no idea what I was talking about. The department chair just told me to use my best judgment.

 

[Maria D]

Thanks everyone for weighing in, I knew I would get solid information here! I have shared the links you provided with my colleagues. I don't know that it will change any behavior and I'm not about to turn anyone in but it was bothering me that some were perpetuating the myth that what they were doing was OK. Actually, I'm really torn about the whole thing, and not because I lose sleep over the money that publishers/authors should be getting. What bugs me is that teachers I work with have this tendency to do end-runs around the shortfalls we are subjected to, which means the problem gets glossed over. If we all stopped all this illegal photocopying, maybe the district would have to wake up to the fact that they haven't bought new textbooks in over a decade and do something about it!

I wonder if public K-12 school administrations are more likely to look the other way than college admins are because the public schools usually cannot require that their student buy textbooks, but must provide them. Professors in colleges and universities, whether public or private, create their syllabus and tell their students up front what the required texts are. In K-12, schools will forgo budgeting for books if they can get away with it. Admins turn a blind eye to photocopying in my district.

Thanks again everyone!

eta: I'm not trying to be flip about "not losing sleep." I do feel that publishers/authors should get their due. I just know that my colleagues do this for the benefit of the students and do not profit themselves in any way.

 

[Haven]

I wonder if public K-12 school administrations are more likely to look the other way than college admins are because the public schools usually cannot require that their student buy textbooks, but must provide them. Professors in colleges and universities, whether public or private, create their syllabus and tell their students up front what the required texts are. In K-12, schools will forgo budgeting for books if they can get away with it. Admins turn a blind eye to photocopying in my district.
Thanks again everyone!

I bet you're right, Maria.

I have a friend who works in a high school that was in dire need of resources--classroom resources, building resources, human resources, etc. The teachers spent years buying things out of their own pockets, organizing fund-raising events, and spending their free time making improvements to the building (painting, building bookshelves in the school shop, and whatnot.) Then, a small group of teachers realized that, while their hearts were in the right place, what they were really doing was making it OKAY for the community to turn down referendum after referendum to improve the school.

So, the teachers decided that they were only going to work with what they had from the school for a year. Guess what? Students didn't have books to read, all of the intramural sports were canceled because the teachers volunteered to run those programs, all of the JV sports were canceled because teachers were coaching those for nothing.

The students and the parents finally "got" it. The district put another referendum on the ballot the next time around, and wouldn't you know it?! The community voted FOR it, and they have since built a new building, bought the books they needed, and hired coaches.

I don't think we (teachers) really do anyone any favors when we use our own resources to try to cover up serious deficits in schools. We just enable the situation to remain as it is. Our hearts are in the right place, but we really are undermining progress.

 

[Maria D]

I wonder if public K-12 school administrations are more likely to look the other way than college admins are because the public schools usually cannot require that their student buy textbooks, but must provide them. Professors in colleges and universities, whether public or private, create their syllabus and tell their students up front what the required texts are. In K-12, schools will forgo budgeting for books if they can get away with it. Admins turn a blind eye to photocopying in my district.
Thanks again everyone!

I bet you're right, Maria.

I have a friend who works in a high school that was in dire need of resources--classroom resources, building resources, human resources, etc. The teachers spent years buying things out of their own pockets, organizing fund-raising events, and spending their free time making improvements to the building (painting, building bookshelves in the school shop, and whatnot.) Then, a small group of teachers realized that, while their hearts were in the right place, what they were really doing was making it OKAY for the community to turn down referendum after referendum to improve the school.

So, the teachers decided that they were only going to work with what they had from the school for a year. Guess what? Students didn't have books to read, all of the intramural sports were canceled because the teachers volunteered to run those programs, all of the JV sports were canceled because teachers were coaching those for nothing.

The students and the parents finally "got" it. The district put another referendum on the ballot the next time around, and wouldn't you know it?! The community voted FOR it, and they have since built a new building, bought the books they needed, and hired coaches.

I don't think we (teachers) really do anyone any favors when we use what little resources we have to try to cover up serious deficits in schools. We just enable the situation to remain as it is. Our hearts are in the right place, but we really are undermining progress.

Yes, that's it exactly! We're a bunch of enablers! And even worse, in the district I'm in, is that it doesn't necessarily mean that the taxpayers spend less money. Expensive high-level admin positions that have virtually no effect on our teaching and learning are created and approved all the time. It's the same with expensive professional development that usually isn't what teachers want/need.

You've inspired me to find a few like-minded colleagues to meet with over the summer and come up with a plan to stop the enabling.

 

[Haven]

Oh, yes--the administrator problem. My former superintendent created four new administrative positions her first year in the school. There went a cool million dollars a year out of the budget!

Rally the troops! Stop the enabling!

My mother works in a terrible, horrible, no good, very bad school. The kids are wonderful, of course, but the board and admin team border on abusive when it comes to the way they treat their teachers. (It's a private Jewish school, not a public school.) Two years ago the board decided they would no longer acknowledge the teachers union. Immediately after that, they fired a quarter of the faculty, most of whom had spent decades working at that very school. Then, they removed the salary scale and slashed the remaining teachers' salaries, and threatened their jobs if they chose to stop working the extracurriculars. Of course, they slashed the stipends for all the extracurriculars in half, too. This past year, the entire faculty worked without contracts for the first two months of school.

The thing is, I told my mom something like this was going to happen years ago. They have been mistreating teachers for years, and the teachers have been martyring themselves in the name of the children. Everyone was scared to say no to any request, but in the end what good did it do? They still fired a quarter of them. And then when the school year came around and they didn't have contracts, what did the teachers do? They showed up to work, unsure of whether they would get paid or not, and if so, how much.

I admire their commitment to the kids, but the truth is that nobody is better off. The teachers all hate their jobs now, and I'm certain the kids know it.

Sorry, I've now fully derailed your thread.

 

[aljdewey]

A lot of people here have expertise in copyright matters, so I thought I'd' ask this here. Would it be a copyright infringement if a teacher scanned complete chapters of a textbook and uploaded the pdf documents to an internet site that is only accessible by teachers and students in the school district? I'm thinking that it would definitely NOT be allowed but some of my colleagues believe that the fact that it is on a "closed" website makes it OK.

Anyone know?

Makes no difference if it is public or private and schools/districts have been sued for it.
Publishers for the most part ignore minor copying but complete chapters and for the express purpose of avoiding buying books. Not likely.
That is copyright infringement and could bring damages of $100000.00 per title.
All it takes is one ticked off or fired teacher to make a phone call.
Besides what are they teaching the kids?

It used to be $100,000 per infringement; it's now $150,000 per infringement. And per infringement means per copy, not per title. Thus, 10 copies from the same title would each be actionable for up to $150,000.

 

[Karl_K]

It used to be $100,000 per infringement; it's now $150,000 per infringement. And per infringement means per copy, not per title.

Thanks Alj. Your right about the new laws.
I knew that but had a brain phart.

 

[aljdewey]

It used to be $100,000 per infringement; it's now $150,000 per infringement. And per infringement means per copy, not per title.

Thanks Alj. Your right about the new laws.
I knew that but had a brain phart.

Heheh - no worries. I should have actually been more specific, too - it's "up to" $150K per infringement. The range usually runs from $750 on the low end up to as much as $150,000 per infringement. The $150K is the maximum amount the jury can award per infringement as part of statutory damages.