Copyright for the ESL Professional
By John R. Poff

Have you ever found yourself lurking around the xerox machine looking over your shoulder? You are not alone! Many teachers who use excerpts of published materials in their classrooms may worry if they are breaking the copyright laws. As both an ESL teacher and a copyright examiner in the U.S. Copyright Office, I would like to offer some fundamentals of copyright law with a particular focus on the ESL community. A basic grasp of copyright principles is useful to materials writers and classroom teachers. Teachers, for example, need to know when it is acceptable to use someone else's work without permission.

Under some conditions, the U.S. Copyright law (17 U.S.C.) allows for the use of copies for classroom distribution. The law states, "The fair use of a copyrighted work, including such use by reproduction in copies for purposes such as ... teaching (including multiple copies for classroom use) ... is not an infringement of copyright. In determining whether the use made of a work in any particular case is fair, the factors to be considered shall include ... the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes...."

A similar right exists by treaty in the 148 nations that are members of the Berne Convention, an international copyright treaty. Also, most nations' copyright laws contain a "fair use" provision. For example, Article 148 of Mexico's copyright law allows for certain uses without permission of the copyright holder, provided that the work is not altered, that the author is given credit, and that the use is for educational or investigative purposes, and not for commercial use.

However, it is important to note that the fact that copies are made for educational purposes is no guarantee that a court will find the use to be "fair." In a case involving the Kinko's copying shops, a court found that, since the company made copies of works on a large scale in order to make money, the use was not fair, even though the copies were made for educational purposes (Basic Books, Inc. v. Kinko's Graphics Corporation, 758 F. Supp. 1522).

Many ESL teachers have had the experience of finding a great activity in a book and wondering if they would be breaking the law by making copies for their students. The answer is, it depends. Copying a small portion of a work for one-time class distribution is a "fair use." By a "small portion," I mean no more than two pages of a work, or 10% of the entire work, whichever is less. These guidelines were approved in a congressional report in 1976. The guidelines are meant to represent the minimum standards of "fair use." Using more than two pages of a book may be acceptable, in some instances. The guidelines note that, if "the copying is at the instance and inspiration of the individual teacher, and ... the inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission," then the copying is a "fair use."

Of course, for reasons of academic honesty, you would not want to pass off the activity as your own creation. Persons who have copied the works of others without giving credit have not fared well in the courts. Two cases involving copying for educational purposes were found to be copyright infringement (Weissman v. Freeman, 868 F. 2nd 1313, 1989, and Marcus v. Rowley, 695 F. 2d. 1171, 1983). In both of these cases, the courts noted the failure of the copiers to give credit to the original authors. So, it is legally to your benefit to give credit to others when you use their works. Of course, the safest course of all is to secure the permission of authors before using their works in your class.

In the 1983 case of Marcus v. Rowley, an adult education teacher (Eloise Toby Marcus) sued another teacher for copyright infringement. Ms. Marcus taught adult education classes on cake decorating techniques, and had written a booklet for the use of her students. Shirley Rowley, another teacher, took the class and then used some of the pages in the booklet in her own classes. The U.S. Court of Appeals for the Ninth Circuit ruled that Ms. Rowley's use of the material was not a fair use, even though she made no profit from the educational use of the materials. Although it may seem unfortunate that one might be sued for such a trivial use of another's work, it is a regrettable possibility.

Most books identify the owner of the copyright in the copyright notice. If not, many of the records of the Copyright Office can now be searched over the Internet (www.copyright.gov). If, after all this, you are unable to locate the copyright owner to secure permission to use copies of a work in your class, it is unlikely that the owner will suddenly materialize in order to sue you for copyright infringement. Even if this happens, at least a judge will see that you made a good faith effort to contact the owner.

How do materials writers and teachers who prepare their own activities protect their writings from those who would use their writings without permission? The best option is to register one's work with the U.S. Copyright Office. Were your work ever to be infringed, evidence of an attempt to register the work with the Copyright Office would be required in order to sue. The facts stated on the certificate that you receive from the Copyright Office are treated by courts as true, unless proven otherwise, assuming that the work was registered within five years of publication (17 USC 410(c)). This information includes when the work was created, who owns the copyright, the date of publication if applicable, and more. The burden of proof would be on the infringer to prove that the facts stated on the certificate were incorrect.

Copyright registration is a good precaution to take before sending a work to publishers for consideration. This protects you from theft of your creation once the materials leave your direct control. If a publisher is interested in your work, they may try to get you to assign the copyright to them as a condition of payment of royalties. It may, however, be to your advantage to negotiate around this. Your copyright is valuable: that, after all, is why the publisher wants it. If negotiation fails, you may want to consider finding another publisher.

What, exactly, does a copyright protect? Copyright protects your expression: your text, artwork, music, or compilation authorship. Note that copyright does not protect ideas or concepts. Once you make the decision to communicate your ideas to others, they are free for all to use. No one has a monopoly on any idea released to the public. Suppose, for example, that in preparing for a class you found in a book or on the Internet a clear and useful explanation of some grammatical point. You would certainly be free to use such ideas in your own lectures, provided that you did not copy the exact expression of the author.

Copyright also does not protect individual words or short phrases. No one can "own" a word or a short phrase without recourse to trademark protection. However, a copyright would protect a compilation of several vocabulary words. The copyright law recognizes the creative authorship involved in the selection and arrangement of words or other data. By "arrangement," I mean the order in which the words are presented. Copyright does not protect arrangement in the sense of layout or format.

If your work were ever infringed, you would probably want to consult a copyright attorney. The difficulty is that copyright attorneys are notoriously expensive. If your work is registered in the Copyright Office before the infringement occurs, or within three months after publication, you may be able to recover your attorney fees at court. Otherwise, you will only be able to recover actual damages. In many cases, "actual damages" could be less than the attorney's fees!

If you have any questions about copyright, feel free to call me at the Copyright Office at 202-707-7173. Feel free to contact me for any additional information.

John R. Poff has been teaching ESL to adults for the city of Alexandria, Virginia, since January 2000. During the day, he is a copyright examiner at the U.S. Copyright Office. He can be reached at jpof@loc.gov.