SCOOP: Copyright and Online Teaching

In response to campus closures for COVID-19, many courses are moving online. For faculty and the librarians supporting them, this may be a new mode of delivering course content and certainly unique circumstances, and it raises questions about the bounds of fair use for scanning and otherwise sharing copyrighted material online for students, particularly in these exigent circumstances. Building upon a presentation I gave at Atla Annual 2019 on copyright and online teaching, here is some refined guidance on the application of fair use to online teaching.

Before Using Materials Online

Whether you seek to show a film clip, distribute a journal article, or otherwise use a copyrighted work in an online course, there are three questions you should first ask:

1. Is the material you are using still in copyright? That is, is it in the public domain or otherwise not subject to copyright protection? Only if a work is still subject to copyright protection or otherwise not licensed for your specific use (e.g., Creative Commons) must an exception under the Copyright Act or permission be explored.
2. Is the material you are using subject to a license agreement or other contract that may alter rights under the Copyright Act? A contract or license for access to electronic materials, such as e-journals, and terms of use accompanying purchases of media, such as DVDs and digital music, may affect a user’s rights under the Copyright Act. Before using or reproducing such materials, you will want to review any applicable license or use agreement. In many instances, a stable link to a licensed resource should be used instead of transmitting the work by posting a copy of it into a course management site, electronic course reserves, or some other system.
3. Does the proposed use of a copyrighted work qualify as a fair use? If the balancing of the four factors of fair use does not weigh in favor of use, you will need to modify your selection (e.g., reduce the amount, transform it more) or seek permission from the copyright owner.

Under fair use, found at section 107 of the U.S. Copyright Act, one may reuse or reproduce a copyrighted work without permission where the balance of four separate factors weighs in favor of such use.

Exceptions to a Copyright Holder’s Exclusive Rights

Although the copyright law grants creators and authors certain exclusive rights with respect to how they may re-use their works, there are certain limitations on those rights expressed in the Copyright Act that permit online educators to re-use a copyrighted work without first seeking the creator’s permission.

The TEACH Act, enacted primarily in section 110(2) of the Copyright Act, permits the digital performance or display of copyrighted works in a distance classroom, but only under very limited circumstances. The TEACH Act only applies to copyrighted works capable of being performed or displayed, such as movies or sound recordings. It does not apply to the digital delivery of print works, such as electronic course reserves or posting of materials in a course management system. The TEACH Act imposes several requirements upon the educational institution and upon the instructor before it may be invoked. Because of the limitations, complexities, and complications in understanding the TEACH Act and in its application, copyright experts are generally in agreement that it should not be utilized.

The preferred method for making materials available online is fair use. Under fair use, found at section 107 of the U.S. Copyright Act, one may reuse or reproduce a copyrighted work without permission where the balance of four separate factors weighs in favor of such use.

Four Factors of Fair Use

The four factors of fair use can be best summarized as follows: what is the purpose and character of the use; what is the nature of the copyrighted work; how much or how substantial of the work is used; and what effect does the use of the copyrighted work have on the market and value of the work. Consideration of all the fair use factors is required; however, all four factors do not have to weigh equally in favor of the proposed use for fair use to be invoked. A fair use analysis is fact-driven, and each unique set of facts regarding a proposed use leads to its own reasoned conclusion. Reasonable individuals may come to different conclusions concerning the same set of facts, but the operative word is “reasonable.”

Purpose and Character of the Use

When examining the purpose and character of the use, educational uses are favored as are transformative uses. An oft-cited rationale for favoring educational uses is the broad public benefit realized from such uses. Currently, there is no court law specifically addressing fair use in the context of a public health crisis; however, the benefit to the public in providing remote coursework is obvious when it enables teaching to continue in the face of social distancing measures or quarantine, or when access to physical library materials is impossible or forbidden.

Nature of the Work

This factor requires examination of the actual content of the work, looking at whether it is technical or fact-based or if is it more artistic and creative. In the context of copying works for educational uses, this factor has not been dispositive, and the analysis here during this public health crisis would be the same.

Amount and Substantiality of the Work Used

Ordinarily, a smaller amount will weigh more in favor of fair use than using the whole work. Further, remember that there are no legally sanctioned or required mathematical formulations (e.g., the 10 percent rule) for determining how much of a work is fair use. Rather, the question is whether the quantity and value of the materials used are reasonable in relation to the purpose of the copying. For copies made to support rapid adoption of remote teaching, users should be thoughtful about this factor; use can be fair so long as what is being reproduced is reasonable to serve the purpose.

Effect of the Use upon the Work’s Market or Value

This factor has garnered increased attention in recent cases interpreting the Copyright Act, with courts looking at whether the use or reproduction is solely for the purpose of cost savings and whether there is a ready market for the original work, including a readily available licensing scheme, that would be impeded by the proposed use. Under usual circumstances, there may be licensing markets for some items. However, the swiftness with which courses have had to move to remote instruction may reduce the weight and importance of this factor. Checking for and relying on licensed alternatives bolsters the case for fair use under the fourth factor, but lack of time to check for licenses should not be a barrier to meeting the needs of your students.

Copyright and Contracts

Electronic or digital materials, whether accessed through your institution’s subscription or whether an instructor’s personal digital copies are often subject to a license or “Terms of Use.” These licenses are contracts that are entered into between the provider or producer of the content and the purchaser or subscriber. Most licenses speak to permitted and prohibited uses and frequently reference fair use or other copyright provisions. It is important to be familiar with the language of the license agreement, particularly whether a particular use of electronic or digital material is prohibited in the context of posting or sharing through a course management system or other online learning platform. Even if the proposed use would be permitted by fair use, the terms of the license agreement ultimately control.

When providing increased access to your existing licensed and digital collections, it is important to continue to be mindful of these limitations. However, many digital content providers are relaxing or temporarily suspending these controls and limitations.

Several library groups are also crowdsourcing lists of publishers and content providers that are responding to the COVID-19 situation:

• Publishers & Vendors Offering Access for Distance Learning & Research During COVID-19 (University of Notre Dame)
• Publisher Access Changes, COVID-19 (Bryant University)
• Information Service Providers (ICOLC)
• COVID-19: Response from the Information Community (NISO)

Further Reading

Have you visited our new Copyright LibGuide yet? There is a section on Fair Use as well as Online Teaching.

The ARL University Information Policy Officers Group, of which I am a member, has prepared a Public Statement on Fair Use and Emergency Remote Teaching and Research.  https://tinyurl.com/tvnty3a.

The ARL-UIPO group has also put together a list of resources, including webinars on fair use and remote teaching.  https://tinyurl.com/v6dvmcb