An Administrator's Guide to California Private School Law

Chapter 20 - Intellectual Property

common law “teacher exception” to the work for hire doctrine. 2587 Additionally, many schools and universities have adopted written policies disclaiming copyright ownership of scholarship produced by faculty or teachers, thereby giving the copyright ownership to the faculty members. The 1976 Copyright Act amended the work for hire doctrine to require a writing signed by both parties to reserve copyright ownership in the employee. Because Congress did not expressly incorporate the teacher exception into the 1976 Copyright Act, courts have debated whether the teacher exception survived the enactment of the 1976 Copyright Act. Based on cases and the general principals of copyright law, courts are likely to find that copyrights in works created by teachers during the scope of their employment belongs to the school and works independently created by teachers or employees outside the scope of their employment and during non-work hours belong to the individual employees. 3. F AIR U SE D OCTRINE A ND E DUCATIONAL E XCEPTION The rights afforded to all copyright owners are subject to the doctrine of “fair use.” Under this doctrine, the “use of a copyrighted work, including such use by reproduction in copies …for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” 2588 The following factors will be considered when determining if the use of a work is fair use:  The purpose and character of the use, including whether the use is commercial in nature or is for nonprofit educational purposes;  The nature of the copyrighted work;  The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and  The effect of the use upon the potential market for or value of the copyrighted work. 2589 There is no bright-line test in determining fair use. However, the 1961 Report of the Register of Copyrights cites examples of activities that courts have regarded as fair use. The examples include:  Quotation of excerpts in a review or criticism for purposes of illustration or comment;

 Quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied;  Summary of an address or article, with brief quotations, in a news report;  Reproduction by a library of a portion of a work to replace part of a damaged copy;  Reproduction by a teacher or student of a small part of a work to illustrate a lesson;

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