Dear Legal Mailbag:
As the principal of a middle school, sometimes I feel more like a referee than an educator. Recently, I have received a number of complaints from teachers about one seventh grade biology teacher “hogging” the copier. It seems that she is constantly copying worksheets and other materials. Other teachers are having problems every morning making their own copies because this teacher gets to the copier early and stands there making hundreds of copies every morning.
Being a good principal, I met with her to discuss her copying practices. She was rather dismissive, asking me if I had ever taught biology. She claims that the textbook is woefully inadequate and that she must supplement the textbook extensively to teach her students appropriately. I asked her to show me what she meant, and she shared a number of articles and worksheets that she has gathered from other sources for just that one day of instruction. She claims that it is necessary for her to copy 30 to 40 pages of materials each day for her 100+ students. To make matters worse, she warned me ominously that, since she has been making this large number of copies every day since the beginning of the year, she is now protected by “past practice,” and I cannot impose restrictions now.
Am I stuck?
While we may applaud the motives of this committed teacher, she is wrong on the issue of past practice, and Legal Mailbag is gravely concerned that she is putting herself and the district at risk with some of her copying.
Starting with the latter first, you should be concerned that this teacher is violating copyright with her extensive copying. Teachers have the right to make some copies of copyrighted material, but there are limits.
The United States Copyright Act, 17 U.S.C. § 107, (the “Act”) 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. (Emphasis added).
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.
Educators have no trouble meeting the first test, of course. Under the second test concerning the nature of the work, a distinction is drawn between published or unpublished works. The scope of fair use is narrower with respect to unpublished works. The third factor concerns both the percentage of the original work that was copied and whether that portion constitutes the essence of the copyrighted work. Finally, the fourth factor considers whether the actions at issue would result in a substantially adverse impact on the potential market for the original. Given that copyright protects property interests, this factor, which affects the value of the work, is central to the fair use analysis.
Applying these factors to the actions of your biology teacher, Legal Mailbag is concerned that she is violating the copyright interests of the publishers of the works she is copying. Of particular concern are the worksheets. The very purpose of worksheets is that students use them to reinforce learning. If teachers could simply copy and use worksheets with impunity, the market for and value of the copyrighted work would certainly be adversely affected. Accordingly, your biology teacher is likely violating copyright by making multiple copies of such worksheets for her students.
The school district may also be on the hook here. Without wading too deeply into the waters of copyright law, we note that courts have recognized the theory of contributory infringement, i.e., a party that has knowledge of the infringement and control over the infringer can itself be liable. Moreover, a teacher who is charged with copyright infringement may also be entitled to indemnity by the school district for the claim made against her for actions she has taken within the scope of her employment.
Finally, the teacher’s claim here of past practice is nonsense. A “past practice” relates to established working conditions across a bargaining unit or discrete subset of bargaining unit members. Her individual (mis)conduct here is certainly not a binding past practice that would require negotiations to change.
Time’s a wastin’! Call her down to the office and straighten this teacher out. Today!