Submission Date:
Question:
[This question comes from a regional BOCES.]
Our technology integration specialist suggested that we use an AI tool to re-level books/text by an original author to a more appropriate reading level for students who are struggling. This is now being used regularly with our special education staff for students who are struggling readers. Is this an infringement of copyright?
Answer:
In the spirit of learning, I am going to answer this question in a multiple-choice quiz. For purposes of the quiz, we’ll use the member’s term “re-level” for generating simplified versions of curricular materials.
[NOTE: If you are not feeling playful and just need the answer, please read footnote #2 and skip to the “Final Paragraphs” section of this response.]
Name: Date:
Copyright Quiz
- A teacher uses software[1] to create a “re-levelled” version of “The Gettysburg Address,” which was published before 1900. Is it infringement?
- Yes, because creating a “re-levelled” version of a book is creating a “derivative work”[2] protected by the Copyright Act.
- No, because even if it is a derivative work, the book is no longer protected by copyright.
- Maybe, if the work was recently turned into a movie.
- No, because the use is for education.
- No, because the software removes all the parts people are complaining to the school board about.
- Yes.
- A teacher uses software to create a re-levelled version of a New York Times article for a learning-disabled student and the district does not have the permission of the copyright owner. The teacher only allows access to the student. Is it infringement?
- No, because the simpler version is a modification of a single article to accommodate a person with a disability.
- No, because the district is a state institution that is arguably exempt from copyright claims in federal court.
- Yes.
- A teacher uses software to “re-level” a short excerpt of a history textbook to illustrate the dangers of relying on AI to modify learning content and the district does not have the permission of the copyright owner. The class is given a hard copy of the modified paragraph with the unmodified paragraph next to it for comparison, and the assignment is also posted on the class’s LMS[3]. Is it infringement?
- Yes, but kudos to the teacher for emphasizing critical thinking.
- No, so long as the excerpt is only long enough to demonstrate the point of the modification and is not used as a substitute for the original, allowing it to be considered a “fair use”.
- No, not even when the district decides they like the modified version better and decides to re-level the entire book.
- A teacher uses software to re-level an entire collection of curricular materials with permission of the publisher, who is not the copyright owner but has an unlimited exclusive license to authorize “derivative works” of the content. Is it infringement?
- No, but I am concerned this type of thing could dull our vigilance against the prospect of a future subject to the binary whim of robot overlords.
- Yes, because there is no specific permission from the actual author.
- No.
Answer Key:
- B
- C
- C
- B
- A or C, depending on your POV.
Final Paragraphs
As the above quiz scenarios illustrate, the answer to the member’s question is: it depends on a variety of factors, but even if the use is limited to a specific student with an IEP[4], the only ways to ensure the creation/use of an AI-modified version of an entire work is not an infringing “derivative work” is to: 1) only modify works in the public domain; OR 2) only modify works for which a district has specific permission to create derivative works.
The sole exception to this would be a modification that met the criteria for “fair use”[5] (as modelled in question 4).
I will (mostly) leave the ethical/educational/social/futuristic terror aspects of this question to philosophers,[6] ethicists, educators, Writers Guild members, artists, and speculative fiction writers.
That said, if someone uses AI to “re-level” this answer for a 4-year-old, I hope the modified version will be: “Don’t use people’s work without permission, and please don’t give up on people.”
[1] I am going to use the term “software” since the function described could be done by “AI” or (I believe) could be done by a sophisticated “find-and-replace” computer program. In making this distinction, I rely on the definition of “Artificial Intelligence” in 15 USCS 9401, which defines AI as: “… a machine-based system that can, for a given set of human-defined objectives, make predictions, recommendations or decisions influencing real or virtual environments. Artificial intelligence systems use machine and human-based inputs to—
(A) perceive real and virtual environments;
(B) abstract such perceptions into models through analysis in an automated manner; and
(C) use model inference to formulate options for information or action.”
[2] A “derivative” work is a defined term in Section 101 of the Copyright Act. The definition is: “[A] work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.” An excellent discussion of how AI-generated output can (or might not) be a “derivative work” can be found in the case Andersen v. Stability AI Ltd., 23-cv-00201-WHO (N.D. Cal. Oct. 30, 2023).
[3] “Learning management site.”
[4] An IEP is an “Individualized Education Program” (as I am sure many people reading this know). While modified formats of copyright-protected works can be generated to meet the needs of a person with an IEP (for instance, generating a Braille edition of a printed book), creating a “derivative” work (basically, a simpler or “re-levelled” version of the original work) does not currently fall within this exception to infringement.
[5] “Fair use” is defined by Section 107 of the Copyright Act. For more on fair use, check out the “fair use” tags on Ask the Lawyer, and for educators, review your institution’s “fair use” policy.
[6] I will share a personal story, though. The other day (specifically, “the other day” in November 2023), my 4th-grader come home with a one-page read-aloud assignment called “The Man Who Lived in a Hollow Tree.” It was such incoherent mishmash, I decided to research what the heck was going on. By dint of research, I found out that what the one-page assignment was mostly likely an abridged version of “The Man Who Lived in a Hollow Tree” (reviewed at https://www.goodreads.com/en/book/show/3866740), except the modified version left out critical facts like the main character being a carpenter, his name, and why he chose to live in a tree. I found myself wondering “Who the heck wrote this?” And now, perhaps, I know.
