A Tale of Two Textbooks

I am creating a supplementary software program for our math students. The program will display step-by-step solutions of textbook problems on a PalmOS device. Am I infringing on the textbook publisher's copyright?
—Larry Ehnert, math teacher Lathrop High School, Fairbanks, AK

This is a tough one. At first glance, it sounds like an infringement of copyright because you are creating a derivative work—a new work based on the original one—without prior permission from the copyright holder. But before arriving at a more definitive answer, it's necessary to examine the actual math problems. If they are expressed in an original and creative way, then the problems are protected by copyright law. "Original" in this context means that the expression is not a copy of an existing problem. As for the meaning of "creative," that's more difficult to pin down. If the math problems are word problems, they are protected by copyright law since they are expressed in at least a slightly creative way. But if the problems consist solely of numbers, letters, and symbols, my guess is that they are not protected. (A number cannot be protected by copyright law.)

Assuming that the portion of the work that you are using is protected by copyright law, a fair-use analysis would help determine if your unauthorized use is legitimate. As I mentioned, the nature of the work (in other words, its level of creativity) is the key to your analysis. On the other hand, if you decide to try another approach and make up your own math problems (rather than using the problems presented in the textbook), I think there would be no infringement.

One of our sixth-grade teachers wants to know if an out-of-print social studies textbook (copyright 1957) is now in the public domain? Can information from the textbook be reworded, copied, and distributed as handouts to our students?
—Gloria Woolcock, librarian Danville (PA) Middle School

Out-of-print materials are still protected by copyright law (if the copyright term is ongoing). In general, materials published before 1923 are in the public domain. Congress has extended the copyright term a number of times. The most recent extension—the Sonny Bono Copyright Term Extension Act of 1998—added 20 years to the duration of the copyright. Thus, the current term for a copyrighted work is the life of the author plus 70 years, or 95 years for corporate, work-for-hire, and anonymous works. I used 1923 as the magic cutoff date because even if a copyright has been renewed, by now the work would be in the public domain.

There is a possibility that the textbook may be in the public domain. Between 1923 and 1978, it was a legal requirement to place a copyright notice (indicated by ©) on materials in order to have copyright protection. If the textbook was published without a copyright notice, it is now in the public domain unless the copyright was renewed with the U.S. Copyright Office. (You can contact them to find out.) Apparently, a very small percentage of works were renewed, so if the textbook doesn't have a copyright notice, you may be in luck. However, if it is still protected by copyright law, you will need to conduct a fair-use analysis. Hopefully by now, readers of this column can repeat the four factors of fair use like a mantra—purpose of the use, nature of the publication, amount being used, and effect on the market. I think that small portions of the book could be copied and distributed to students as a fair use. The "rewording" that the teacher wants to do may be a cause for concern. You will have to find out what the teacher means by that and conduct a fair-use analysis.