Fair Use for Public School Teachers

Cross-posted on matthewktabor.com.

A month ago I wrote about a Florida A&M University law professor's decision to use questions out of a test-prep guide for a significant portion of the final exam. In Using Test Questions from Prep Guides - Ethical, Legal? I said:

"Reproducing questions from review books happens frequently in New York. We have state-issued curricula for most all high school subjects with a statewide final exam. Barron’s publishes review books for these state exams and it is very common for teachers to make unit tests from questions taken directly from the review books. No one really complains [other than that it suggests a classroom teacher is “teaching to the test”], but I find it highly unprofessional and unnecessary at the post-secondary and especially at the law school level."

I wanted to elaborate a bit on the rules by which New York State teachers - and those nationwide - must abide when using someone else's material.

There are four basic conditions to meet fair use requirements [from the House Judiciary Subcommittee]:

1. Brevity - a single poem, passage, short story, etc. is used;

2. Spontaneity - the material is included close to the time when the material is used;

3. Cumulative use - "generally no more than nine occasions per teacher per term"

4. Notice of use - credit to the author must be given with year of publication and appropriate copyright symbol.

Brevity. The intent of fair use is, generally, grounded in brevity. Teachers [and anyone creating instructional content] depends on passages, illustrations and small pieces of work to develop curriculum. Most K-12 teachers don't have a problem here.

Spontaneity. I find this a bit troubling. How many times have we chided students for leaving their work until the last minute? But if you're a teacher in New York, go for it - your use of copyrighted material is fair if you put yourself in a position that necessitates a shortcut.

Cumulative use. I've got to admit, I'm a bit puzzled by 9 uses as a threshold - it seems arbitrary, though I doubt this is ever policed. How one could use the same material 10+ times in a term and still profess that one is advancing a student's course of study at a reasonable pace is beyond me.

Notice of use. This is where teachers usually stumble - they just don't bother to credit the original authors. But satisfying point #4 is easy provided that you're committed to respecting the intellectual property of others. Author's name, the larger source, publication date, copyright symbol - the end.

I don't expect teachers or anyone else to document ad nauseum every bit of intellectual property they decide to use [it's faddish in the ed-tech community to cite image sources to the nth degree on blogs, something which I don't bother to do unless it's real intellectual property/art]. But showing the most basic respect for another's work by labeling it properly is a necessity - it shows our students that their future work will be credited and that their teacher is a competent scholar.

Browse a detailed summary of Basic Books, Inc. v. Kinko's Graphics Corp. if you're so inclined. And if you can't be bothered, at least take those four baby steps that fair use requires. It isn't hard.