SCOOP: COVID-19, Copyright, and Course Materials

When we addressed copyright and online teaching in the April 2020 SCOOP column, librarians were adjusting and adapting to the emergency shift of in-person classes to remote learning. In that column, we discussed how this emergent situation impacted the application of fair use and other legal considerations for delivering course materials online. Now, as faculty, students, and librarians are preparing for the likely scenario of a fully online fall semester, questions again arise as to how copyright applies in a COVID-19 world.

Fair Use – Still the Same Standard

Although the emergency circumstances of rapid transformation of courses to online have subsided and there has been some additional time to plan, libraries remain empowered by fair use to digitize copyrighted print works and post them in secure systems for access and use by students and faculty.

By way of reminder, the four factors of fair use are:

• What is the purpose and character of the proposed use?
• What is the nature of the copyrighted work sought to be used?
• How much of the work is planned to be used?
• What effect does the proposed use of the copyrighted work have on the market and value of the work?

All four factors require analysis in consideration of the present facts and circumstances of the use in question. Factors three and four, however, often challenge libraries in application, in determining what facts are relevant to consider, and how to weigh these facts against competing interests. In analyzing factor three – the amount that would be permissible under fair use – it is essential that the facts of that particular use are carefully considered. Ultimately, no more than is necessary and reasonable should be copied or digitized. However, this sometimes may mean only a small portion of a work may be copied but there may also be factual scenarios where copying or digitizing an entire work balances in favor of fair use. Libraries desire numerical guidelines for ease of application; however, numerical guidelines are not and have never been the law or a legal safe haven, even in times of COVID-19.

The fourth factor – impact of the use upon the market – continues to be a contentious factual query as well. Market harm can be challenging to fiscally calculate or hypothetically predict. Some factual considerations that a library should make when analyzing market harm is the current commercial availability of the work and whether a reasonable and cost effective licensing scheme exists for the work that would also replicate physical ownership of and access to the work. While licensing may have its drawbacks, it is often, especially under the current legal framework of copyright and contracts, the easiest and fastest way to get content into students’ hands.

Further, libraries should continue to be mindful of and adherent to license or subscription terms that apply to electronic content that have been selected for use in a course. Earlier this year, many publishers and content providers relaxed license and subscription terms to allow for greater or increased access. However, many of those temporary relaxations of restrictions have since expired and are unlikely to be extended into the fall.

Look for Open

Open access resources continue to be the best alternative for sharing course content freely and openly. There are browser based tools available that can help locate open access versions of subscription or closed-access articles. HathiTrust and Internet Archive also offer large libraries of digitized book content, although some of it may be limited to participating libraries. Open Educational Resources (OER) continue to increase in availability for use and adoption for courses. Atla has also just announced an initiative to help fund the creation of OER for theology and religious studies courses.

What about Controlled Digital Lending?

In light of COVID-19, there has been increased interest in Controlled Digital Lending (CDL) as a solution to making course materials available to students. Under a CDL system, libraries circulate a digitized copy of a title in place of each legally obtained (e.g. purchase, gift) physical copy. Circulation is limited by controls that restrict the number of users to the number of digitized copies as well as set a time limit on the lending period. The legal foundation for CDL rests upon an interpretation of the fair use and first sale provisions of the Copyright Act. For several years, the Internet Archive and several other libraries have utilized CDL as a means for lending digitized versions of print books to users. However, the legality of this system was challenged after the Internet Archive launched an Emergency Digital Library this spring. Although the Emergency Digital Library has since ceased operations, the lawsuit continues as of the date of this writing.

Although this interpretation of the Copyright Act is compelling, libraries are cautioned to consult with their institution’s legal counsel before embarking upon such a program locally. CDL is most compelling for books that are out of print or otherwise not commercially available. However, it may be more challenging legally in application for works for which there is a ready market.

Additional Resources

• ACRL is hosting a three part webinar series in September 2020 focused on copyright and course reserves. This course will be taught by Carla Myers, Assistant Professor and Coordinator of Scholarly Communications for the Miami University Libraries, who also led Atla’s Scholarly Communications Roadshow in February 2019.
• Fair use is one of a library’s copyright superpowers. Read more about this from Harvard’s Kyle Courtney.
• Looking for more guidance on copyright and online teaching, particularly as relates to showing video? Check out our Copyright LibGuide sections on Online Teaching and on Showing Videos.

Photo by Suzy Hazelwood from Pexels