Chris Frisella
Students and teachers need to understand copyright and intellectual property law.

Creativity powers the best classrooms.

Teachers tapping new ideas and tools create better ways to facilitate learning, while their students gain knowledge, make intellectual connections and demonstrate learning through their own creations.
And with all this creative power comes responsibility: an obligation to understand and respect intellectual property law when building on the work of others.

What’s great for students — and educators — to know is that intellectual property law also protects their own creations, says Kristina Ishmael, an educational consultant and senior project manager for learning technologies at New America, a think tank in Washington, D.C.

“Whether or not you go through a formal copyright procedure through the U.S. Patent and Trade Office, everything that is created technically has a copyright associated with it,” Ishmael says.

Copyright is a form of intellectual property law that protects all published and unpublished original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture, the U.S. Copyright Office says. And while copyright doesn’t protect facts, ideas and systems, it may protect the way they are expressed.

“When we’re creating things, we have to be able to give credit and proper attribution to the original creators,” says Ishmael, a former K-12 teacher, digital learning specialist and open education fellow at the U.S Department of Education. “If it’s copyrighted, then we have to make sure we have permission to be able to use their things.”

In addition to copyright, key concepts for students and adults to understand about using and sharing intellectual property include fair use, Creative Commons, public domain, and citation and attribution. Here’s an overview of the key concepts:

Fair use

The fair use doctrine allows certain reuses of copyrighted works without permission and often applies within the four walls of the classroom. If the reuse is posted online or shared with a broader audience, the doctrine is less apt to apply.

“There are a lot of gray areas in fair use,” Ishmael says, and challenges are decided case-by-case in court. “We always go back to the four factors of fair use.”
Those factors — and some simple questions to test for them — are:

  1. Purpose or character of use. Is your use of copyrighted material transformative? For example, Ishmael says, consider the difference between “covering” another creator’s entire song and mixing a segment of the song into a new work.
  2. Nature of the work. Is the copyrighted material chiefly factual or creative? Think nonfiction vs. fiction.
  3. Amount of work. How much of the original work are you using? Smaller chunks are better.
  4. Effect on the market. Will your use of the copyrighted material take away potential revenue from its original creator? If so, it probably wouldn’t be considered fair use.

Ishmael says it’s easy for students — and teachers — to stray from fair use into copyright infringement when their creations circulate beyond the classroom. She also knows of educators who have created and shared online resources that others have repurposed and sold for profit. Out of that desire to share one’s creative work without ceding control of it came Creative Commons and a new way of licensing digital content.

Creative Commons

Founded in 2001, Creative Commons allows creators to grant licenses to give people permission to use their content without explicitly requesting permission. The nonprofit network offers six main licenses that place various conditions on the user, with the least restrictive license merely requiring attribution and the most restrictive prohibiting any commercial uses or changes to the original. “It doesn’t replace copyright but sits alongside copyright,” Ishmael says. “Based on whichever license you choose, you are telling people what they can and cannot do with whatever they are using.”

Public domain 

Materials in the public domain have no copyright or have had their copyright expire, and may be used without restriction. According to The Educator’s Guide to Creativity & Copyright, materials created by the U.S. federal government are in the public domain, including most photos and documents from federal government websites that typically end in .gov. Materials created before 1923 also are in the public domain, according to the guide co-written by Kerry Gallagher, one of Ishmael’s fellow ISTE 2019 presenters. Individuals who wish to waive intellectual property rights and place one of their creative works in the public domain can do it with the Creative Commons CC0 tool.

Citation and attribution 

Whether content you’re incorporating into your own work is copyrighted, licensed or in the public domain, citation and attribution are important practices demonstrating respectful, ethical use of the original work. Citing sources is a familiar practice when writing papers, and most school districts identify standards for bibliographies, footnotes and other forms of citation. In the digital realm, “attribution” becomes the watchword when crediting content back to its original creator, Ishmael says.

Creative Commons encourages teachers to use the acronym TASL when teaching students how to attribute. Pronounced “tassle,” it stands for title, author, source and license — all of which should be included in the attribution.

“This is really easy to start to do with kids and model for them,” Ishmael says. “There are several sites (such as Photos for Class, Unsplash, Foter and Pixabay) that create the attribution for you so you can simply copy and paste it. ... Eventually they can get to the point where they can create the attributions themselves.”

Given the rising star of creation in the classroom as well as the workplace, these are crucial lessons.

“We want kids to be able to create things, because it’s a great assessment tool,” Ishmael says. “We want more creation rather than consumption.

“We also have to talk about the legal and ethical guides and being conscientious and being good stewards of intellectual property in all elements,” she says. “We have an opportunity within the safe spaces of classrooms to model what this can look like in practice. What better place to learn how to do this and to potentially fail and to make mistakes than the classroom?”


Chris Frisella is a freelance writer who explores educational technology and its power to reshape learning and lives.

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