Copyright laws are complex and often difficult to understand. Their complexities only increase when applied to education and proper teaching methods. Before we begin the conversation on copyright issues for writing instructors, let’s examine a brief history of copyright laws in the United States and define some key terms.

A brief history of copyright law in the U.S.

The history of copyright law in the U.S. dates back to the creation of the Constitution when James Madison submitted a request to protect the copyrights of literary authors. Since then, the U.S. has had some form of copyright protection for authors, although these laws have changed often. Change, however, is not always a bad thing as technological developments create the need for additional protection for authors of creative works.

The first copyright law in the U.S. was enacted in 1790 with the U.S. Constitution. Since then, copyright laws have undergone 4 major revisions (1831, 1870, 1909, 1976) with numerous smaller additions and revisions during the intermediate years. Some of these additions, especially the Digital Millennium Copyright Act, will be referenced in subsequent posts.

What is a copyright?

The U.S. Copyright Office offers this definition: “Copyright is a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression.” The “tangible medium of expression” is an important aspect of copyright laws since these laws do not protect ideas or facts but the creative or unique expression of ideas or facts.

A good example of this is a recipe. A basic recipe, or a simple list of ingredients, is not protectable under copyright laws. It’s not possible to copyright “two tomatoes” or “four cups of flour,” but if the recipe is presented with significant explanation that requires creative effort, then it’s possible for the recipe to be protected under copyright laws.

In the same way, a phonebook is a collection of facts (names, addresses) and although the production of a phonebook, or something like it, does require effort, it is the creative expression that applies to copyright laws. A novel requires significant creative effort; a phonebook does not.

What does copyright include?

Copyright laws protect original creative works, including “literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture.” Other works or acts that could require legal protection are included in different sections of the law. Inventions or discoveries, for example, require a patent. Phrases, words, or designs are protected by trademarks. The law, or principle, that serves as the umbrella for copyright, trademarks, and patents is called Intellectual Property.

What is fair use?

Fair use is a legal provision that allows copyrighted works to be used for specific reasons. In other words, it’s an exception to the rule. The four common criteria for exception are listed here, but we will focus on the first as we transition to how this is relevant for writing instructors. The first criterion of fair use concerns the “purpose and character” of the use, including educational reasons. One example of this exception is the distribution of copyrighted works in a classroom for the purpose of education.

Why is this important for writing instructors? 

It is important for teachers of writing to understand the details and transient nature of copyright laws for multiple reasons. For one, writing instructors serve to prepare the next generation of writers and teachers of writers. As a result, their proper understanding of copyright laws and fair use is essential.

Second, it’s no secret that technology is changing the way that information is created and shared. As teachers begin to incorporate digital tools such as blogs and wikis into the writing classroom, the proper application of issues like fair use can be complicated. The majority of this blog will focus on this second reason. Also, a proper understanding of these issues can be helpful in avoiding legal complications.

In The Digital Writing Workshop, Troy Hicks notes that “when we ask students to be writers in this age, we are inherently asking them to be digital writers” (p. 11). If all students in writing classrooms today are digital writers, a good understanding of the legal issues related to the creation and distribution of creative work in a digital space is necessary.

As teachers of writing or future teachers of writing, what are some issues you’ve encountered with copyright laws and digital writing?

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