SCOOP: Fair Use/Fair Dealing Week 2019 – Fair Use in Online Education

Fair Use
Submitted by Christine Fruin, ATLA Scholarly Communication and Digital Projects Manager

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.

Is the material subject to a license agreement or other contract that governs the use of the content? A contract or license for access to electronic materials, such as e-journals or other database content, and terms of use accompanying purchases of or subscription to digital media, may affect one’s rights under the Copyright Act.

If the work is copyrighted and its use not governed by a license agreement or terms of use, does the proposed use qualify as fair use? If the balancing of the four factors of fair use does not weigh in favor of use, you will need to seek permission from the copyright owner.

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

Many educational publishers produce and market audio and video content and provide parameters in a license agreement or other terms of use as to how that content may be used. Further, many film production and distribution companies now include terms of use or licenses with their DVDs. Oftentimes there is language contained therein specifically prohibiting the streaming of any quantity of the film to an online course.

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.

A legal question exists regarding ownership of digital music files, and the purchase of digital music from services such as iTunes is subject to terms of use agreed to when an account is created. These are important considerations before streaming personally owned digital music to students. Fair use should be considered when creating clips from CDs.

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.

Images

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.

Further Reading

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.

Scoop

Christine Fruin is the ATLA Scholarly Communication and Digital Projects Manager. As an attorney and a librarian, she has worked for over a decade promoting access to and use of diverse collections through utilization of fair use, open access, and responsible licensing.

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