Copyright Issues with Training Materials for Courts

Greg Hurley, Knowledge and Information Services, National Center for State Courts

Nathaniel Ralstin, Knowledge and Information Services, National Center for State Courts

Courts sometimes use copyrighted materials as part of training sessions. What must courts know regarding the “fair-use” and “education” exceptions for such works?

Court personnel are occasionally tasked with developing programming to train their colleagues on practices and procedures used by their courts. This may be done at local trainings, state-level events, or national conferences, such as those held by the National Association for Court Management. Personnel conducting these trainings may want to include copyrighted pamphlets, booklets, newspaper articles, etc., as handouts. However, is it a violation of the Copyright Act to do so without the permission of the copyright holder? The answer is most likely yes. It is important to note that it does not matter if the copyrighted materials are distributed in paper form or electronically. 

The Copyright Act, as codified in Title 17 of the US Code, provides broad protections for content creators who copyright their work. However, there are statutory exceptions, which allow the public some limited use of copyrighted materials without first obtaining permission from the copyright holder. The two exceptions at least arguably available to court personnel are the “education exception” and the “fair-use exception.”

The question is whether copyrighted materials distributed at an “on-the-job training” or a conference might qualify under the education exception. The vast majority of the appellate court opinions that address the education exception are based on the use of copyright materials for course work at an educational institution. In analyzing whether the educational exception applied, courts tended to focus whether the copyrighted material was used as part of the curriculum and the fact that it was used by an educational institution. Court personnel using copyrighted materials as part of a training are not faculty at an educational institution, and the materials are not being used in conjunction with course work. Therefore, it is very unlikely that the education exception would apply to trainings provided by court personnel.

The fair-use exception to the Copyright Act is codified in section 107:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. (Emphasis added.)

Section 107 identifies four criteria to determine if the fair-use exception is applicable to a specific use. The criteria are purpose and character of the use, nature of the copyrighted work, amount of the work used, and the effect upon the potential market for the content. At first glance, it may appear that based on these criteria that court personnel would be permitted to use copyrighted material for court-related trainings. However, a review of the caselaw discussing fair use suggests that appellate courts generally take a very restrictive view of the fair-use exception and would be unlikely to extend it to court-related trainings. This is consistent with the legislative intent behind section 107 as identified in the committee notes to the bill.

At a practical level, it is unlikely that a copyright holder upon becoming aware of copyright infringement would send a state court a “cease-and-desist” letter, much less bring a legal action against the court or the court personnel involved in the infringements. However, if it one of these events were to occur, it would be incredibly embarrassing for the personnel involved and the court as a whole. Additionally, it is important for courts to ensure that they are fully following the law while conducting all activities to avoid tarnishing the public’s trust and confidence in the judiciary.

The National Center for State Courts has hundreds of copyrighted materials for court-related education. To seek reprint permission (which is usually granted), simply contact Deborah Smith at Many other nonprofit organizations have very liberal policies with respect to granting reprint permission.

Reports are part of the National Center for State Courts' "Report on Trends in State Courts" and "Future Trends in State Courts" series.
Opinions herein are those of the authors, not necessarily of the National Center for State Courts.