Essay:Copyright in English language teaching

This article seeks to establish what copyright exemptions exist for teachers in various parts of the world. The relevant laws are quoted where appropriate and links to the national laws are provided in all cases.

• Disclaimer

Readers who need advice on this subject are strongly encouraged to take professional legal advice, and should note that this analysis was not made by a copyright lawyer. Those wishing a deeper understanding are also encouraged to click the links at the bottom of this article.

What is copyright?

In essence copyright is about the ownership of original works. Such an original work may take differing forms including - but not limited to - text, audio recordings, images, computer software, films and music. Nowadays, in almost all jurisdictions, copyright comes into existence immediately upon creation of the original work; the author does not need to make any special provision in order for them to have copyright protection. The copyright owner may licence the work for use by third parties.

Copyright continues to exist for decades after the death of the original author. The exact period of time depends on the jurisdiction.

When is something covered by copyright?

Although laws differ between jurisdictions, in general anything which is published by an individual or an organization is covered by copyright legislation in some way. Only if a work is explicitly placed in the “Public Domain” is copyright protection removed.

In other words, the default situation is that a work is covered by copyright unless it is explicitly placed in the public domain.

All things published in a newspapers, or on web pages, broadcast on the radio, and MP3 files are covered by copyright legislation.

So, what can I use in class?

If you are an institution or a materials creator you need to be very careful, study the appropriate local and international legislation, and make sure you get permission when necessary.

However if you are a teacher you will probably have some leeway under legislation based on the “Berne Convention, which explicitly allows for copyrighted material to be used without prior permission in some teaching situations. Almost all countries, including the USA, have legislation based in some way on the Berne Convention.

The convention states:

“Art.10.2.- It shall be a matter for legislation in the countries of the Union, and for special agreements existing or to be concluded between them, to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice”

This has been interpreted in different ways in different countries but many legislations seem to allow the following under face-to-face, classroom situations:

• Copy and distribute articles for use in class.
• Play podcasts or other audio in a classroom situation.

What you cannot do is format these things into a textbook and sell it without permission, as this would not be "fair practice". It seems that you should also avoid using the same copyrighted material year after year. Finally, the above does not give you the right to photocopy coursebooks or copy course CDs.

In order to see what is allowed in the area where you teach please refer to the Country area information at the bottom of the page.

The organisation in charge of monitoring the Berne convention is the World Intellectual Property Organisation.

Implications for this site

Whereas you may be able to use copyright materials in class, publishing a lesson which is based on copyright material on a website would almost certainly be a violation of copyright. Consequently, that great class you created based on that wonderful newspaper article which tied into the song by what’s-his-name you got from YouTube can’t be uploaded here.

Which is relevant - where I live and teach or where the work was created?

The Berne convention states in article 5:

(1) Authors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals, as well as the rights specially granted by this Convention.

In other words, it’s where you live and teach which is relevant.

Sanctions

In most countries copyright violation is a civil rather than a criminal offence. That is to say that although the copyright holder can (attempt to) sue you, you won’t face a criminal prosecution from the state. A few countries however such as Turkey and Thailand do have laws which say they will send you to jail for copyright violation.

Specific information by region or area.

Some areas have elected to interpret the Berne Convention more restrictively than others. In many cases we have copied the most important parts of the legislation here (justified by being "insubstantial copying" or less than 1% of the work copied), but teachers are nevertheless encouraged to read the primary legislation which is linked from each article.

Many countries seem to have legislation which states something like: "you can make a copy as long as you don’t use a photocopier" - which isn’t really very helpful.

Europe

The text of Directive 2001/29/EC states:

• Introductory point 14: This Directive should seek to promote learning and culture by protecting works and other subject-matter while permitting exceptions or limitations in the public interest for the purpose of education and teaching.
• Article 3. Member States may provide for exceptions or limitations to the rights provided for in Articles 2 and 3 in the following cases: (a) use for the sole purpose of illustration for teaching or scientific research, as long as the source, including the author’s name, is indicated, unless this turns out to be impossible and to the extent justified by the non-commercial purpose to be achieved;

The "non-commercial" point may cause difficulty to freelance teachers; though it perhaps could be argued that the "non commercial" restriction means that the material itself cannot be sold commercially to the student, and does not mean that the commercial transaction which is the class cannot take place. Some legislations, both in Europe and elsewhere, explicitly state that the exemptions apply (only?) to the state system.

The UK

The UK seems to have a slightly confusing law in this case. The UK Intellectual Property Office maintains that the law allows teachers to copy - as long as they don’t use a photocopier or similar copying device. This is in agreement with the UK legislation point 32 which states:

Things done for purposes of instruction or examination

(1) Copyright in a literary, dramatic, musical or artistic work is not infringed by its being copied in the course of instruction or of preparation for instruction, provided the copying -

(a) is done by a person giving or receiving instruction, (b) is not done by means of a reprographic process, and (c) is accompanied by a sufficient acknowledgement,

and provided that the instruction is for a non-commercial purpose.

All of which is fully in agreement with the UK Intellectual Property Office statement above. However section 36 states:

Reprographic copying by educational establishments of passages from published works: (1) Reprographic copies of passages from published literary, dramatic or musical works may, to the extent permitted by this section, be made by or on behalf of an educational establishment for the purposes of instruction without infringing any copyright in the work, provided that they are accompanied by a sufficient acknowledgement and the instruction is for a non-commercial purpose.

Section 34, and Section 189, Schedule 2 part 5 allows the playing or showing of sound recordings and films in educational establishments.

Teachers may wish to read the entirety of these sections in the original legislation which is linked below.

The website Information and Communications Technology for Language Teachers has produced a comprehensive guide for the UK. It also includes a large number of useful links.

Information on which license is necessary for various activities may be obtained at A Guide for Copyright Licensing at Schools

Ireland

The Irish legislation states in section 53 that copying is permitted for educational uses as long as "the copying is not by means of a reprographic process".

Spain

Spanish legislation articles 32, and, perhaps, 37 seem to allow the use of copyright work for educational purposes.

Russia

Article 20 states:

It shall be permissible, without the author’s consent and without payment of remuneration, but provided that the name of the author whose work is used and the source of the borrowing are mentioned, to make a reprographic reproduction in one copy and without gainful intent:….if the reproduction is the work of an educational establishment and the copy obtained is intended for classroom use.

Article 42 states:

1.Notwithstanding the provisions of Article 37 to Article 41 of this Law, it shall be permissible, without consent from the performer, the phonogram producer and the broadcasting or cable distribution organization, and without payment of remuneration, to make use of the performance or the broadcast or cabled program or the recording thereof, and to reproduce phonograms: ….. (2)for the sole purposes of teaching or scientific research;

Which would seem to mean that you can only make one paper copy but you can play films and videos.

Turkey

Articles 33, 34 and 80 seem to provide freedom for educational institutions to use copyrighted works.

Teachers are also urged to read articles 71 through 80 which state that those found guilty of breaking the law (and their employers) could face a fine of up to six hundred million liras and three years in jail.

France

In “Chapter I" “General Provisions Art. L. 211-3.” French law states:

The beneficiaries of the rights afforded by this Title may not prohibit:…… - analyses and brief quotations justified by the critical, polemic, educational, scientific or informatory nature of the work in which they are incorporated;

Poland

Article 27 of the Polish law states:

Research and educational institutions shall be allowed, for teaching purposes or in order to conduct their own research, to use published works in original and in translation, and to make copies of fragments from the disseminated work for the same purpose.

Articles 28,29 and 30 also refer to educational institutions.

Germany

Article 47 about broadcast media states:

(1) Schools and institutions for the training and further training of teachers may make individual copies of works which are included in a school broadcast by recording the works on a video or audio medium. The same shall apply to youth welfare homes and to the official provincial pictorial materials services or comparable publicly owned institutions. (2) The video or audio recordings may be used only for instructional purposes. They must be destroyed not later than the end of the school year following the transmission of the school broadcast, unless equitable remuneration has been paid to the author.

Article 53 states when referring to the taking of copies:

1. in teaching, in non-commercial institutions of education and further education or in institutions of vocational education in a quantity required for one school class or

2. for State examinations and examinations in schools, universities, non-commercial institutions of education and further education and in vocational education in the required quantity,

if and to the extent that such reproduction is necessary for this purpose.

Holland

Chapter two article 11 of the Dutch copyright act states:

There will be no infringement of the rights specified in Articles 2, 6, 7a and 8 if the actions relate exclusively to use as illustrations for teaching purposes, so far as justified by the intended and non-commercial purpose; Article 16, paragraph 1, at 1o, 2o, 4o and 5o of the Copyright Act 1912 shall apply to this, mutatis mutandis; Article 5 must be observed in relation to a performance.

Given the complexity of the references teachers would be advised to read the act carefully.

Italy

The teaching exemptions are referred to in article 70.

Australia

Australia has an excellent government resource which addresses any question an Australian teacher might have about copyright.

It states in part:

The new flexible dealing provisions allow educational institutions to use all forms of copyright material for the purpose of educational instruction, provided that the use complies with a 3-step test, which is the standard set by international copyright treaties, of which Australia is a signatory. 'Use' would include copying, communication and other acts ordinarily covered by copyright.

In order to comply, the use must be non-commercial and:

* be limited to ‘certain special cases’; * not conflict with ‘normal exploitation’ of the work; and

* not ‘unreasonably prejudice’ the interests of the copyright owner.

However teachers are encouraged to read the entire site in full.

Asia

There is no Asia-wide agreement.

Israel

Article 19 states:

(a) Fair use of a work is permitted for purposes such as: private study, research, criticism, review, journalistic reporting, quotation, or instruction and examination by an educational institution.

Teachers are encouraged to read the whole article for clarity.

Japan

Article 35 of the Japanese copyright law states:

A person who is in charge of teaching and those who are taught in a school or other educational institutions (except those established for profit-making) may reproduce a work already made public if and to the extent deemed necessary for the purpose of use in the course of lessons, provided that such reproduction does not unreasonably prejudice the interests of the copyright owner in the light of the nature and the purpose of the work as well as the number of copies and the form of reproduction.

Teachers should look at the excellent English-language “Education and Copyright" site referenced above.

India

Article 52 states in part:

Certain acts not to be infringement of copyright. (1) The following acts shall not constitute an infringement of copyright, namely, …… (h) the reproduction of a literary, dramatic, musical or artistic work-….. (i) by a teacher or a pupil in the course of instruction;

Nevertheless, Article 52 is long and complex, teachers are encouraged to read it in full.

North Korea

Article 32 states:

A copyrighted work may be used without the permission of the copyright owner, in the following cases:….When a copyrighted work is copied, broadcast or adapted for school education.

South Korea

Section 4, article 25 states:

Article 25(Use for the Purpose of School Education, etc.)

• (1) A work already being made public may be reproduced in textbooks to the extent deemed necessary for the purpose of education at high schools, their equivalents or lower level schools.
• (2) Educational institutions established by special laws, the Elementary and Secondary Education Act, or the Higher Education Act or operated by the state or local government may reproduce, perform publicly, broadcast or conduct interactive transmission a part of a work already being made public to the extent deemed necessary for the purpose of class teaching. Provided that the use of the whole parts of a work is deemed inevitable in the light of the nature of a work, and the purpose and manner of its exploitation, etc., use of the whole parts of the work shall be permissible.
• (3) It shall be permissible for a person who receives education in the educational institutions described in Paragraph (2) to reproduce or interactively transmit the work already being made public within the limit regulated in paragraph (2) to the extent deemed necessary for the purpose of class teaching.

Fines and sanctions in South Korea

It seems that those living in South Korea would be well advised to take notice of copyright restrictions as they are backed up by the criminal law with swinging punishments. The extensive "PENAL PROVISIONS" section begins at article 136:

(Crime of Infringement on Rights) Any person, who infringes upon authors' property rights or other property rights protected pursuant to this Act (excluding the rights under the provision of Article 93) by means of reproduction, public performance, communication to the public, exhibition, distribution, rental or production of a derivative work, may be punished by imprisonment for not more than five years or a fine of not more than fifty million won, or both.

It then continues in a similar vein for several more paragraphs. It is also interesting to note that on-line service providers need to take care in South Korea. Article 104 states:

Liability, etc. of Special Types of Online Service Providers) (1) Online service providers whose main purpose is to enable different people to interactively transmit works, etc. among themselves by using computers, etc. (hereinafter referred as "special types of online service providers") shall take necessary measures such as technological measures intercepting illegal interactive transmission of works, etc. upon the requests of rights holders.

And under PENAL PROVISIONS: Article 142 states:

(Fine for Negligence) (1) A person who fails to take necessary measures pursuant to Article 104 shall be punished by a fine for negligence not exceeding thirty million won anyone who fails to fulfil his obligations under Article 106 or who fails to abide by order of the Minister of Culture and Tourism under Paragraph (4) of Article 133 shall be punished by a fine for negligence not exceeding ten million won.

China

Chapter 2, Section 4, Article 22 of Chinese law states:

In the following cases, a work may be exploited without permission from, and without payment of remuneration to, the copyright owner, provided that the name of the author and the title of the work shall be mentioned and the other rights enjoyed by the copyright owner by virtue of this Law shall not be prejudiced:….. (6) translation, or reproduction in a small quantity of copies, of a published work for use by teachers or scientific researchers, in classroom teaching or scientific research, provided that the translation or reproduction shall not be published or distributed.

Hong Kong

The Hong Kong government has produced a ten-page pdf: Guidelines for Photocopying of Printed Works by Not-for-profit Educational Establishments. Those working in Hong Kong will find much guidance there. It says in part:

(“the Ordinance”) provides certain limited allowances for copying of copyright works by educational establishments. However, the acts allowed should not conflict with a normal exploitation of the work by the copyright owner and should not unreasonably prejudice the legitimate interests of the copyright owner.

Audio recordings are included in this "printed works" guide.

Thailand

Section 30 of the Thai code provides:

that is an act done in relation to the copyrighted work of another person by virtue of this Act shall not constitute an infringement of copyright, if done as follows: 1. research or study of the work, which is not done for making profit;… 6. reproduction, adaptation, exhibition or making available by a teacher for teaching, which is not done for making profit; 7. reproduction or adaptation of a part of such work, or abridging or making a summary by a teacher or educational institution for distributing or selling to students in the class or in an educational institution, provided that is not done for making profit; 8. utilization of the work as a part of the examination questions and answers.

It seems that those teaching in Thailand would be well advised to study the law closely as it is one of the countries which provides stringent criminal penalties for copyright violation. The Penalty and Prescription section of the law states that, depending on the nature of the offence, the perpetrator could be fined up to 800,000 baht and/or imprisoned for up to 4 years. Double that for repeat offences. Furthermore managers or directors of a company involved is such an action shall also be considered culpable unless they can demonstrate their innocence.

Jordan

Article 17 of the Jordanian law states:

Use of Published Works: Published works may be used without the author’s permission subject to the following conditions and in the following cases: a) Presenting, exhibiting, announcing, performing or musically playing the work provided that same occurs in a private family meeting or in an educational, cultural or social institute by way of illustration for educational purposes.c) Relying on the work for illustration in education through publications, programs and sound, audio and visual recordings for educational, culturing, religious or vocational purposes within the parameters necessary for achieving these purposes provided that the aim of making use of the work is not to achieve financial gain and that the name of the work and author are mentioned.

Article 20 states:

Copy of Work without Author’s Consent: Public libraries, non-commercial documentation centers, educational academies and scientific and cultural institutions may copy any work by photography or by other means, without the author’s consent provided that the photocopying and the number of copies is limited by the need of these institutes and that same does not harm the copyrights of the author and does not conflict with the normal exploitation of the work.

Africa

There are no Africa-wide copyright agreements.

Nigeria

In its Second Schedule - Exceptions from Copyright Control, Nigerian copyright law states:

The right conferred in respect of a work by section 5 of this Act does not include the right to control- …. (h) any use made of a work in an approved educational institution for the educational purposes of that institution, subject to the condition that, if a reproduction is made for any such purpose it shall be destroyed before the end of the prescribed period, or if there is no prescribed period, before the end of the period of twelve months after it was made;

The Americas

There is no Americas-wide copyright law.

Canada

Part three of Canadian copyright law, section 29.4 states:

29.4 (1) It is not an infringement of copyright for an educational institution or a person acting under its authority

(a) to make a manual reproduction of a work onto a dry-erase board, flip chart or other similar surface intended for displaying handwritten material, or

(b) to make a copy of a work to be used to project an image of that copy using an overhead projector or similar device

for the purposes of education or training on the premises of an educational institution.

However 29.5 allows the playing of sound recordings and 29.6 explicitly allows the playing of news items. Those interested should read all of clause 29.

The USA

Chapter one of the Copyright law of The United States in section 107 states:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

In addition to reading the base legislation The University of Maryland has a very good article on the US situation; the University of Minnesota has explored other scenarios; and the US library of congress has a useful article about classroom use . Additionally, there is a very useful and on-topic printable chart . The US Teach act should also be consulted .

Mexico

Mexican regulations seem quite strict, allowing only one copy for the personal use of the person taking it under chapter two articles 148, 149 and 150.

Other considerations

The vast majority of teachers will, no doubt, scrupulosity follow the copyright laws applicable to the country in which they live and work.

It is possible that some of those living in countries with more restrictive copyright laws will decide that those laws do not correctly reflect the spirit of Berne convention, and that such teachers will salve their consciences by following what the convention "really" meant. Others may wonder what the actual possibility is of the copyright police entering their classroom and asking if they have appropriate authorisation for a particular photocopy or MP3 file.

This wiki assumes that such copyright-ignoring teachers are in the minority and that the majority of teachers will scrupulously follow the local law.

See also

Teflpedia’s own copyright statement

External Links

• “Copyright and Web teaching" - a useful article which explores the issues.
• Council of Europe’s Culture Committee’s comparison of copyright legislation in Europe.
• Wikipedia - Berne Convention
• Quite technical article from a European perspective