April 2, 2006

Fair Use

Just two weeks into her first professional writing job at Raleigh College’s Center for Curriculum, Erin received an email from the center’s director, Fred Mansfield. The email directed Erin to take charge of the center’s newest project, a curriculum resource guide that would serve as the first in a series. Some twenty teachers had been writing the lesson plan content, and Fred wanted Erin to design its layout for publication. The timeline was tight: School started in two weeks and, as part of their contract with the center, the teachers were to receive copies of the guide before classes began. Fred emphasized that this project was critical to the center’s upcoming education initiative, and he asked to meet with Erin at 9:30 Monday morning to review her ideas.

Excited to be working on an important project, Erin began to browse the completed lesson plans attached to the message. Reading the first lesson, Erin noticed a hyperlink at the bottom of the page and clicked on it, expecting to find related resources. Instead, her browser displayed a website containing the lesson she had just read, word for word. A pattern quickly emerged; all of the teachers working on the project were copying entire lesson plans and citing the source URL at the bottom of the page. While Erin wasn’t responsible for the content the teachers were submitting, she questioned whether their material was legal. The websites did not display copyright notices, but Erin felt an inner conflict. How would she feel as a writer if someone else copied her work? But since it was five o’clock on Friday, Erin closed the email and headed home. She would talk to Fred on Monday morning.

Saturday night, Erin received a call from Roger, a librarian friend. Without getting too specific, Erin mentioned her new project. She explained her ideas for editing the resource guide and offered to reserve a copy for Roger’s school. Eventually, Roger asked Erin how she was addressing copyright concerns. Citing the prevalent use of educational resources found on the Internet and the lack of copyright notices on the websites, Erin explained that she wasn’t too concerned about the legality of it. Roger cautioned Erin and gave her the name and phone number of a local university professor who specialized in copyright law.

That night Erin lay awake, concerned about her project. As a professional, she felt an ethical obligation to honor the intellectual property of other writers. She also knew she had an ethical obligation to inform her employer of the project’s possible legal consequences. Was it possible that reproducing lesson plans found on the Internet would be illegal even in an educational setting? Erin spent Sunday researching copyright law and came to some unsettling discoveries.

• All ideas fixed in a transmittable medium have an inherent copyright. So although the source websites did not display the copyright symbol, ©, or the word “copyrighted,” they were still protected.
• Use of copyrighted works requires a written copyright release from the original author.
• A court-made doctrine of fair use allows partial use of copyrighted works for educational purposes. While Raleigh College could argue fair use, Erin noted that it could be a stretch since the resource guide used entire lesson plans copied verbatim.

Erin was stunned as she realized that the project involved hundreds of copyrighted works from as many websites. The safest option, from a legal perspective, would be to write every author and request their permission to use their content. However, Erin knew that contacting the authors would be difficult, and some of them might not give consent. Some might not even be identifiable.

As the weekend ended, Erin weighed her options. She could try to secure copyright releases, but it would take time that she did not have; the project was due in two weeks. Perhaps the center could postpone publication of the resource guide, but the contract between the center and the teachers reportedly required delivery in two weeks. She considered calling Roger’s expert professor, but she didn’t want to expose the center or herself to scrutiny. Would Fred understand the complexity of the situation or be more concerned with the project’s deadline? He had been clear that the center’s new initiative hinged on this document, and she feared her future at the center may also hinge on her performance on this project. Erin wanted to impress her supervisor, and she wondered whether she should focus on Fred’s directive, worrying only about layout instead of content or legal issues. But was that the right thing to do as a professional? As the only professional writer on the center staff, she had no real peer or mentor within her own field to turn to.

Erin wanted to make an ethical decision, one that would be fair to everyone involved, but satisfying Fred, the contracted teachers, her career aspirations, her obligations to her profession, and the law posed a dilemma. The only certainty was that she had to decide the next step before meeting with Fred on Monday morning.

What should Erin do?