Consumable components to Everyday Math

← Return to forum

  • Our school has purchased the Everyday Math Program in the sixth grade. The materials are both text and consumable workbooks. One piece of the consumable content is in the form of a student journal. The journal comes in two parts- one for units 1-5 and a second one for units 6-10.
    The teachers at this grade level are able to use all of journa1 1 and will continue to purchase these materials each year.
    Journal 2 however has only two units that they would use. Of the 183 pages in the second journal they would only make use of about 30 pages.
    The teachers are questioning whether they could laminate the copies they have of those 30 pages in journal 2 to be used in multiple years.
    Is this an infringement of copyright?
  • In my opinion, this copying would be an infringement, unless you obtain permission from the copyright owner.

    Usually, consumables like workbooks do not fall under section 107 fair use allowable copying because of the second criterion, "nature of the work." But even if this particular copying did fall under section 107, it would be allowable only for the first semester used (spontaneity) and thereafter, you would need to get permission to copy in subsequent semesters.
  • Please note that my opinion above is based on the legislative history for the U.S. copyright law, House Report (H.R. Rep. No. 94-1476), which states:

    (B) There shall be no copying of or from works intended
    to be “consumable” in the course of study or
    of teaching. These include workbooks, exercises,
    standardized tests and test booklets and answer
    sheets and like consumable material.

    See page 8 - U.S. Copyright Office Circular 21

    And also on page 8:
    (i) The copying is at the instance and inspiration of
    the individual teacher, and
    (ii) The inspiration and decision to use the work
    and the moment of its use for maximum teaching effectiveness
    are so close in time that it would be unreasonable
    to expect a timely reply to a request for permission.

    [Note: Although the Reports that make up the legislative history are not binding law, they are "persuasive" interpretations of the intent of the statute.]

    Hope this helps!
  • It is possible to interpret this question as suggesting that the pages from the already purchased books will be laminated for reuse. Thus each new class would read the pages and write whatever response is called for on separate pages. If that is the case, no copying at all takes place, and there would be no need of a fair use argument or to invoke the very restrictive interpretation of fair use in the classroom copying guidelines. The question would be a simple matter of first sale -- the distribution right is exhausted upon first sale and the purchaser can do what she wants with the purchased copies, as long as new copies are not made. I don't see why the fact that the work was originally intended as an educational consumable should change the first sale rule at all.
  • I agree. If by "laminate the copies" they mean the pages from the original, legally-made purchased books, then there is no copying so no infringement of the owner's right of reproduction. This is also assuming that the teachers are not laminating a single set of the pages, "lending" them to the students, and encouraging the students to make their own copies.

    When they're laminating, they'll also want to take care not to create a derivative work - for example, a bound compilation or scrapbook of several worksheets from various sources (it doesn't sound like they're planning to do that here, however - my guess is that they're laminating to prevent students from writing on the pages). There was a case several years ago where the court held that it was infringement to use art pages from calendars shellacked onto rocks sold at craft fairs, because the resulting decoupage rocks were derivative works (in that case, it didn't matter that there was no copying and that there was First Sale).
  • I also interpreted laminating as not copying, and perfectly allowable. If you used dry-erase markers or something similar, students could even write right in the books and then erase their work once it was graded. For that matter, while it might be more convenient to purchase the new workbooks for part 1, I see no reason why you couldn't do this with an entire workbook.

    Ruth, do you know the name of the art case you mentioned? I would like to read about it.
  • Freya, I've been unsuccessful at finding the decoupage copyright case online, but I'll see if I can dig it up when I'm at the law library this weekend. I think it was decided in the early 1990's.
  • A similar case, which may or may not be the one Ruth is referring to, is Lee v. A.R.T. Company, which involved a company making decorative tiles from notecards and small lithographs by an artist named Annie Lee. The citation is 125 F. 3d 580 (7th Cir. 1997).
  • I found the citation. The case I was thinking of is Mirage Editions, Inc. v. Albuquerque A.R.T. Co, 856 F2d 1341 (9th Cir 1988) where the Ninth Circuit held that the images decoupaged onto ceramic tiles were derivative works and therefore infringement.

    Contra case - Ten years later, the 7th Cir (case cited above by ksmith) held that applying images to tiles was not infringement (same defendant, different plaintiff, different circuit).
  • Thanks, Ruth and ksmith, for the citations. I look forward to reading more about this issue.

Posting to the forum is only available to users who are logged in.

← Return to forum