The use of materials protected by copyright is essential to the learning process. Educational resources exist in all formats that are recognised as ‘works’ in copyright law.
To minimise the burden on teachers and students who want to make use of copyright materials as part of their teaching and learning experience, the law includes a number of exceptions that allow for the use of all types of copyright work for certain educational purposes.
If you are using materials in an educational context this does not mean that you can forget about copyright. What it does mean is that you need to be aware of when you can use a work without obtaining permission or paying a licence fee, and when permission or a licence is required.
For example, the law makes clear that certain exceptions for education can only be relied upon in the absence of a relevant educational licensing scheme. This means that if a scheme has been set up to license the use of copyright material by educational establishments then the exception does not apply. For instance, if a school or college wants to record television broadcasts for use within a classroom, it should get a licence from the Educational Recording Agency.
One of the most important exceptions for education permits the use of any type of work for the purpose of teaching (or as the law puts it: ‘for the sole purpose of illustration for instruction’). This means that copyright in the work is not infringed by an individual teacher or a student as long as they are copying the work to give or receive instruction (or when preparing to give or receive instruction), and the copying is used to illustrate a point about the subject being taught. Also, the law makes clear that ‘giving or receiving instruction’ allows copying when setting examination questions, communicating questions to students, and answering questions.
However, the exception only applies under the following conditions:
1) The purpose of the use is non-commercial
2) Where practical, there should be sufficient acknowledgement of authorship of the work
3) The use of the material is fair
There is no legal definition of what is fair or unfair in this context. It is an issue ultimately decided by courts depending on a number of factors, such as the amount of the work taken and whether the use would commercially compete with the copyright owner’s exploitation of the material. According to the UK government ‘minor uses, such as displaying a few lines of poetry on an interactive whiteboard, will be permitted, but uses which would undermine sales of teaching materials will still need a licence’.
There are two other important things to know about this exception. First, it applies to all types of teaching, not just teaching within a traditional educational establishment. Second, the exception cannot be overridden by contract. This means that any term of a contract seeking to prevent or restrict copying under this exception is unenforceable in law.