Educational Fair Use and Homeschooling
Have you ever wanted to photocopy a few pages out of a teacher’s manual to use at home with your kids but wondered if doing so was ethical? Or wanted to scan a chapter from a work of literature to share with your co-op students but weren’t sure if doing so violated any copyrights?
These sorts of dilemmas are common in the Catholic homeschooling world as families try to maximize the use of resources on limited budgets. Questions about how copyrights apply to educational contexts pertain to the so-called “Fair Use” doctrine in copyright law. In this article, we will review the basics of Fair Use, so you can better understand what liberties you can—and can’t—take with reproducing copyrighted work.
What is Fair Use?
Copyright law in the United States provides for something called Fair Use, meaning that the reproduction of limited portions of copyrighted materials for the purposes of education, commentary, or parody does not constitute a copyright violation. This is the legal principle that allows, for example, a book critic to cite portions of the book in her review or a Youtuber to incorporate scenes from a motion picture into a film commentary video.
Without Fair Use, it would be nigh on impossible to discuss published works because we would never be able to cite examples from them. Fair Use allows limited reproduction of copyrighted works for certain authorized purposes that are held to contribute to discussion, education, or entertainment about the copyrighted material.
The real question is, what are the limits of Fair Use? This is laid out in the U.S. Copyright Act of 1976, which delineates a “four-factor” test for determining if what you want to do constitutes Fair Use. If your use of material meets these four criteria, then you do not need to obtain permission to reproduce the copyrighted work. Conversely, if your use fails the four-factor test, you must obtain permission.
The Four-Factor Test
The four-factor test proposes four criteria by which the use of copyrighted material can be judged. The four criteria are: Amount, Purpose, Nature, and Effect. Let us consider each of these in turn:
Amount—What you reproduce should be short excerpts from a longer work. For example, a single chapter from a book, an individual article from a magazine, and individual news stories. What you reproduce should be directly related to the subject of the course.
Purpose—Denotes the reason you are using the work (for profit, education, entertainment, etc). To be covered under Fair Use, you must not be using the material for commercial purposes. It must be used in a very limited context as part of specific educational content (i.e., a lesson plan, curriculum, etc).
Nature—This refers to what specifically you are reproducing. Educational Fair Use requires that only those portions relevant to your specific educational objectives should be reproduced. In other words, copy only what you need and no more. Please be aware that Fair Use applies even more narrowly to creative works, like fiction novels and short stories. You should avoid substantial excerpts from novels whenever possible. Another caveat regards so-called “consumable” materials. These are items that are meant to be “used up” and then repurchased, such as workbook pages, test forms out of a book, etc. Consumable items are not supposed to be reproduced.
Effect—Refers to the effect the reproduction of copyrighted material will have on the copyright holder, as well as on students. This is a cost-benefit analysis that weighs the benefits of using the material against potential harm to the publisher. Before you copy, think, “Will reproducing this material harm the sale of copyrighted works?” Also consider, “Are these copyrighted materials reasonably priced for students to purchase on their own, or are they prohibitively expensive such that students would be unlikely to have access to them otherwise?” This factor assesses whether your educational needs justify the use of the material.
Some Things to Remember…
Whether to reproduce something can sometimes be a subjective determination. So use the four-factor test, but also use your gut. Here are a few other things to take into consideration:
• The content creators in the Catholic homeschooling world are a galaxy of small producers. Even “big” companies like TAN Books and Seton Media are small compared to Protestant or secular educational content providers. Margins are smaller, and reproduction is likely to harm them more than, say, McGraw Hill or Penguin Classics. This doesn’t mean you shouldn’t utilize Fair Use for these smaller publishers, but it is something to consider. The more we support small Catholic publishers, the more beautiful content they can produce for us.
• Many people think that if you cite the source, you are protecting yourself from a copyright claim. While it is laudatory and ethical to cite the source work (and you should do so), this has no legal value. It does not protect you against copyright claims.
• Just because something exists in the world does not mean it is copyright protected. Copyright law is interpreted more narrowly when it comes to content that has been produced for commercial reasons; it is vaguer when it comes to content like, for example, blog articles that are freely available on the Internet.
• Even if you reproduce copyrighted material under Fair Use, you cannot “profit” from it—once you commercialize the reproduction, you are no longer using it for strictly educational purposes and have wandered outside the bounds envisioned by Fair Use laws. You may, however, charge a fee for reproducing the material. For example, you may charge students $5 for a course pack to cover the cost of making the copies.
• Finally, as an alternative, plenty of public domain content can be reproduced with no limits. If something is in the public domain, you may reproduce 100% of it for any and every reason. If you feel confined by the guidelines of Fair Use and have flexibility with what you are trying to do, consider turning to public-domain content. For information on what is in the public domain, I recommend consulting this guide from Stanford University.
Do you have tips to share or questions to ask? I invite you to join us in our Catholic Homeschool Connections Community and start a conversation.
