- April 24, 2009 @ 2:57pm1mnbvcxz says:I want to create a mathematics 1st grade curriculum with lessons and exercises. There is an existing curriculum that I like, but can be greatly improved and expanded. If I do not copy any text but use similar introduction of topics and ideas how do I know when I created a sufficiently-original derivative work?
Thank you in advance for your help.
- April 28, 2009 @ 11:54amRuthDukelow says:The answer to this depends on your intended use of the curriculum that you create. If you are a first grade teacher creating a curriculum to use yourself only with your own students and will be creating original lessons and exercises to distribute to your class, then I believe your use would be likely viewed as fair use under section 107, even if your work is somewhat derivative of another copyrighted work.
If, on the other hand, you are planning to create a curriculum, lessons, and exercises for sale and distribution to schools to use with their first grade classes, then your adaptation of a copyrighted work would probably not be fair use.
- April 29, 2009 @ 3:14pmFreya Anderson says:Generally, I agree with Ruth's analysis here. However, I think that the use might be fair even if the lesson plans are intended to be for a wider audience or even for sale. It's hard to have a good feel for this without actually looking at the original curriculum, but I would think that especially important factors to consider in this case include:
* How creative is the portion you want to use? If there's a logical progression to the lesson (say, for example, that the lesson is a survey of mathematics which covers addition first, then substraction, then multiplication, then division, and so on), and you're basically copying that progression, then the copyright protection might be "thin", and if you don't take too much, your use may be fair.
* How substantial is the portion you want to use (in quantity and substance)? I realize that answering this part is really the original question, but I don't think that it's really possible to make a good evaluation without more information about the original lesson plans and what portion is going to be used.
Aside from this, it strikes me that teachers often share their lesson plans for free, and appreciate the learning and growing that can come from that sharing. Of course, some do not, but I think that contacting the original writer might well turn out to be a win/win situation, especially if the original lesson plans were freely shared. If they were originally purchased, then your modification might affect the commercial viability of the original, which would be an argument against fair use.
- April 30, 2009 @ 4:25pm1mnbvcxz says:Thank you Freya Anderson and RuthDukelow for responding. I intend to use the curriculum for a commercial business and eventually expand it from 1st grade to 6th grade. The problem I am reselling with is that copyright does not protect ideas, only expression but how do you tell the difference between and idea and an expression? Particularly when dealing with factual concepts like mathematics. For example my understanding is that if an ordinary person can not tell that two expressions are derived from each other then there is no copyright infringement, but in factual texts like mathematics it would be very difficult to have a completely original work that does not use examples and at least partial explanations of concepts form previous authors.
I guess that I can better refine my question by asking if anybody knows of legal case studies dealing with the copyright of factual texts like biography, science etc. Like Freya mentions “it is hard to have a good feel for this without looking at the original curriculum" I need to have a feel for copyright boundaries before I even create the curriculum.
Thank you in advance for your help.
- May 1, 2009 @ 10:46amksmith says:You are quite right that the really important issue for you is the idea/expression dichotomy. The classic case that articulates this distinction (it uses the terms "art" versus "description of the art") involves accounting forms, and may have some value in informing your thinking. It is Baker v. Selden, decided by the Supreme Court in 1880 (101 U.S. 99). Despite its age, it is still cited in US copyright cases. Another aspect of this discussion is the "merger" doctrine, which holds that when there is a very limited set of ways to express a particular idea -- "the topic necessarily requires one form of expression" -- infringement will not be found. A commonly cited case on this doctrine, and the one from which the quote above is taken, is Morrissey v. Procter & Gamble (379 F. 2d 675, 1st Cir. 1967).
Unfortunately, there is no bright line that distinguishes ideas from expression, or that precisely defines an unprotectable fact versus a protectable expression of that fact. The procedure courts follow to determine infringement is to separate out all elements that are unprotectable in the original and then ask if there is still "substantial similarity" between what remains of the original work and the allegedly infringing copy. But the dispute is usually over what elements precisely are unprotectable. In the current dispute over the Barack Obama "HOPE" poster, I expect that much of the argument will be the degree to which Obama's actual appearance is an unprotectable element which should not be considered in the infringement analysis.
My feeling is that bare mathematical expressions are quite likely to be "merely" unprotectable facts, but I am also sure that a mathematician would be able to point out elements of creativity and individual "authorship" in many calculations. I am afraid all you can do, as you indicate, is try to get a feel for how that line is drawn and exercise care based on that sense as you develop your curriculum. You might start with the two cases I mention.
I hope this is helpful to you
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