SCOOP: Fair Use/Fair Dealing Week 2019 – Fair Use in Online Education
February 06, 2019
Fair Use (U.S. law) and Fair Dealing (Canada and other jurisdictions) are essential limitations and exceptions to copyright allowing the use of copyrighted materials, without permission from the copyright holder, under certain circumstances. These doctrines facilitate balance in copyright law, promoting further progress and accommodating freedom of speech and expression. Fair Use Week, February 25 – March 1, is a great time to consider the flexibility and applicability of fair use, particularly how it allows copyright to adapt to new technologies, which is essential when considering the application of fair use to online education.
Fair Use, Section 110 and the TEACH Act
The Fair Use provision of the U.S. Copyright Act (17 U.S.C. § 107) permits the use, display, performance, and reproduction of copyrighted works without permission of the copyright holder provided the weight of the four factors of fair use balance in favor of that proposed use. Further, another provision in the Copyright Act specifically provides an exception for the use of copyrighted works in a physical or face to face teaching environment. Section 110(1) of the Copyright Act allows educators to perform or display copyrighted works, without the copyright holder’s permission, in a face to face teaching environment. This exception only applies to works that are capable of being performed or displayed, such as films and songs; it does not apply to the reproduction or distribution of copyrighted works. Further, it only applies to performances and displays that are relevant to the teaching goals of the course.
The exception of 110(1) was expanded in 2002 by the enactment of the TEACH Act. The TEACH Act, enacted in part 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. There are several somewhat onerous and complex requirements that the instructor, the institution and information technology units must comply with in order to invoke the TEACH Act. Further, the TEACH Act provides vague and complicated guidance as to how much of a work may be performed or displayed. Consequently, the TEACH Act has rarely been utilized by institutions; prevailing guidance instead has been that fair use should be considered when confronting questions of using copyrighted materials in an online course.
Three Questions Before Posting Course Materials Online
What is the copyright status of the material you wish to post to an online course? This question considers not only whether the material is in the public domain but also whether it has been licensed through Creative Commons or is otherwise available open access such that the use is permissible.
Tips, Tricks, and Things to Remember
Text-Based Works (Book chapters and journal articles)
When selecting text materials, determine whether the institution owns a digital or electronic version of the book or article. If so, provide students with a stable or persistent link to the work rather than copying the work into the online course, as the latter may be prohibited by the license agreement.
If an electronic version is not available, apply fair use. Pay particular attention to the quantity of the work you have selected — is the amount selected essential to the pedagogical goals of the class? Other important considerations when evaluating fair use are the availability of licensing or permissions for the work and the commercial availability of the work for student purchase.
When looking for text materials to use in an online class, consider using works published through an open access press or in an open access journal. Further, if the selected text is a journal article, it is possible that the author has posted a pre-print version of the manuscript in his or her own institutional repository or a subject based repository. Those versions may be accessed without a subscription and may be linked to for student access.
Audio and Video Works
When creating video clips from DVDs for streaming in an online course, be consistent with the rules promulgated by the Library of Congress with respect to the 2010 and 2015 exemptions to the Digital Millennium Copyright Act. For videos available solely on VHS or other analog formats, a fair use argument could potentially be made to create a digital copy.
Streaming video proliferates the video market. Several online outlets offer video streaming for rent or purchase at a very low cost. With a basic Netflix account, which most students likely have, thousands of films, including foreign and documentary works, can be accessed by the subscribing student. Note, however, the terms of the Netflix user agreement would not permit the sharing of your own Netflix user account details with students or showing a streamed film in a physical or online classroom. Amazon and iTunes also offer inexpensive rental of streamed video content. There are also many websites providing legal and no-cost quality streamed video content.
Word of caution about services like YouTube. Content found on YouTube and similar sites can often be infringing of copyright. While merely providing a link to such content raises more an ethical than a legal question, there is also the likelihood that infringing content will be taken down and thus not be available for the duration of the course.
There are many resources for finding free, streaming audio works. Many contemporary composers license their works using Creative Commons licensing. Creative Commons works can be found on several sites. The Library of Congress also hosts the National Jukebox, which is a large repository of both musical and speech recordings.
An important consideration when using images in an online course is ensuring that the source of the copy is legal. This issue arises frequently when downloading images from the web.
As an alternative to using strictly copyrighted images, consider using images in the public domain or that have been licensed using a Creative Commons license. You can search Creative Commons, Google Images, and Flickr specifically for images that have been licensed for reuse.
- The Center for Media and Social Impact has been involved in the production of several Codes of Best Practices for Fair Use. Find them on their web site at http://cmsimpact.org/codes-of-best-practices/.
- Stanford University Libraries have compiled all the various copyright and fair use tools and checklists at https://fairuse.stanford.edu/charts-and-tools/. But remember, it is always important to complete your own analysis!
- An excellent book on fair use: Reclaiming Fair Use: How to Put Balance Back in Copyright. https://press.uchicago.edu/ucp/books/book/chicago/R/bo28242133.html
- Because it is also Fair Dealing week, check out this great article on the Fair Dealing provision under Canadian law and debunking a prevailing myth that it is more restrictive in application than U.S. Fair use. “Debunking the Fair Use vs. Fair Dealing Myth: Have We Had Fair Use All Along?” https://osf.io/preprints/lawarxiv/26vjt
The SCOOP, Scholarly COmmunication and Open Publishing, is a monthly column published by Christine Fruin, ATLA Scholarly Communication and Digital Projects Manager, to inform ATLA members of recent developments, new resources, or interesting stories from the realm of scholarly communication and open access publishing.