A Copyright Charity, For the Children

The Copyright Alliance has created a “charitable arm,” the Copyright Alliance Education Foundation. It “will develop educational programs aimed at helping America’s next generation of creators succeed.” CAEF also provides links to already existing “educational” materials on intellectual property law and promotes them for classroom use.

As an example, CAEF promotes the Electronic Software Association or ESA’s Join the ©Team curriculum, a set of materials that have been around for a few years now. While they are designed for elementary school kids, they are also a fun way for law students to discuss copyright and fair use, at least for a few minutes. I have used portions of the 4th and 5th grade materials in the discussion of copyright in my video game law seminar and may use the same materials in my intellectual property law survey course.

Here’s a problem from the curriculum materials for 4th and 5th graders about how to “copy right.” It’s accompanied by a picture of one boy giving a CD-ROM to another boy:

“Simon is giving Bob a copy of his class report on Harry Potter. What should he do to copy right?” (p. 19)

The answer, sort of, to this hypothetical is after the jump.

According to the answer key, “Simon should not give his friend a copy of the report.” Simon presumably used material from the Harry Potter books and movies in his report, and “it’s against the law to make copies or give away copies of copyrighted material outside the classroom, even if he’s only copied a few passages and a few pictures.” (p. 9)

The general rule, we are told, is as follows: “[T]he special rules for respecting intellectual property in school don’t apply outside the classroom. Students are allowed to copy short passages of copyrighted text, individual copyrighted images, and excerpts from other copyrighted material in their school work, as long as they credit their sources. This is called ‘fair use.’ But no one is allowed to copy copyrighted material outside the classroom for any reason outside the classroom for any reason without permission.” (p. 9) (emphasis in original).

Setting aside the conflation of plagiarism and copyright infringement, which appears in multiple places in CAEF materials, this “rule” is flatly wrong. Fair use is not confined to the classroom. It’s not even confined to non-commercial uses. See, e.g., Campbell v. Acuff-Rose Music, 510 U.S. 569, 584 (1994) (“The language of the statute makes clear that the commercial or nonprofit educational purpose of a work is only one element of the first factor enquiry into its purpose and character.”); Sony Computer Entertainment Am., Inc. v. Bleem, LLC, 214 F.3d 1022, 1026 (9th Cir. 2000) (“In this analysis, the commercial use of copyrighted material is not presumptively unfair; rather, commercial use is but one of four factors that we must weigh.”).

Even under a narrower view of fair use, one arguably expressed in the Supreme Court’s 1984 Sony decision, commercial use is only presumptively unfair, not per se unfair. See Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 449 (1984) (“If the Betamax were used to make copies for a commercial or profit-making purpose, such use would presumptively be unfair.”). Cf. Campbell, 510 U.S. at 584 (“Sony itself called for no hard evidentiary presumption.”).

This misstatement about fair use doesn’t appear in only the ESA materials. It appears in the FAQ to CAEF’s website too: “It is important to emphasize that while the law allows students to use copyrighted material for school, it strictly prohibits copying copyrighted material without permission for other purposes.”

Admittedly, the CAEF website and the ESA materials do discuss 17 U.S.C. § 107 in more detail and do mention that § 107 refers to things like news reporting. They do therefore provide an attentive reader with enough information to determine that something is wrong with the statements of law above. How teachers handle this inconsistency would be interesting to know. I’d also like to know how students react to statements of law that seem absurd on their face, ones that purport to require permission for any act of copying a copyrighted work outside the classroom. (“Dear Marvel Comics: It’s a snow day, and my school is closed. I’m bored and would like to doodle a picture of Spider-Man. I promise not to sell it. Will you grant me a license? Please respond before lunch.”)

For previous criticisms of the Copyright Alliance, see this post or this one by William Patry. The Copyright Alliance strikes back here.

To make a tax-deductible donation to CAEF, see here. (Really. It’s in the lower right corner). The Recording Industry Association of America and other members of the Copyright Alliance need your help! Please give generously. You know, for the children.

UPDATE: The Electronic Frontier Foundation has released its own copyright curriculum as a counter to CAEF. The press release is here.

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