Case Study Week 3: Francesca the Teacher with the Projector

Senario

Francesca is a teacher at a less privileged, under resourced school. Because this school lacks resources Francesca  does not have access to technologies such as a smart board. At high-end schools, teachers often scan materials onto smart boards and present it to their students. Though Francesca has access to a photocopy machine, she is afriad of making multiple copies of this material. However Francesca needs this material to properly educate her students. To comply with what she believes copyright law requires, Francecsa decides to transcribe this particular work onto a transparency to and then to display it on a projector for students to copy in their notes, even though it means making a special arrangement to borrow the projector.

Questions on scenario

Is this form of reproduction a violation of copyright laws?

If so, how could Francesca avoid violating copyright in this situation??

In the United States, the legality of Francesca’s strategy depends on whether or not she is making a fair use. We can return to the four factors of fair use from last week, found in section 107 of the U.S. Copyright Act: 1) Purpose of the use; 2) Nature of the work being used; 3) Amount used relative to the whole; 4) Potential impact on the market for the original.  Without knowing details about the work that she is copying onto transparencies, it is impossible to make a  complete fair use assessment, however, given that the use is limited to the classroom, and given that photocopying for classroom use is generally permissible under section 107, we would argue that not only is Francesca probably not breaking the law, she can probably do more than she is currently doing and make photocopies to share with her students.

While case-by-case licensing of individual works has been a straightforward process among schools, colleges, and libraries for many years, collective and blanket licensing schemes for educational use are still in their infancy in the United States. The Copyright Clearance Center began offering blanket licenses for educational institutions in 2007, but these have been criticized by James Boyle and Kevin Smith, (among others) and it is not clear how widely they have been adopted. Furthermore, there is not currently any case law in the United States indicating that because the market for licensed educational uses is growing, photocopying for classroom use is no longer fair. The textbook Introducing Copyright suggests that blanket licenses may now be part of the “normal exploitation of the work” according to the Berne Convention, and therefore “royalty-free use of copyright works will no longer fall under the three-step test” (page 90). However, both common practice and written law in the United States suggest that unlicensed photocopying for the classroom, provided it is not performed by a copy shop (see Basic Books, Inc. v. Kinko’s Graphics Corporation), remains legal.