Educators are quickly transitioning exclusively to online learning because of the coronavirus pandemic. In these unprecedented times, copyright may not be top of mind, but to avoid liability, educators should know the various aspects of copyright law that apply in their new digital roles. For online learning, there are several options to ensure compliance with copyright while making content available to students. This includes reliance on the TEACH Act, reliance on the doctrine of Fair Use, use of already-licensed materials, use of materials for which publishers are expanding their licenses, and use of Creative Commons Licensed materials. Each of these is discussed in turn below.
The TEACH Act: The most important provision of the Copyright Act for educators is the Technology, Education and Copyright Harmonization Act ("TEACH Act"), 17 U.S.C. § 110, which was signed into law in 2002. Many educators may already be familiar with this Act because it addresses both in-class and online use of educational materials.
For online use, we look to subsection 110(2), which in large part allows educators to use works in an online classroom that would have normally been distributed in a "live classroom session." More specifically, under this subsection, use of content in an online setting is permissible if each of the following provisions is met (17 U.S.C. § 110(2)(A)-(D)):
- The content was not produced or marketed primarily for online classroom learning (don't use materials that are normally licensed for online courses; for those materials, you should get the appropriate license);
- The content was lawfully made or acquired (don't use a pirated copy!);
- You are operating as an accredited nonprofit educational institution;
- You perform a nondramatic literary or musical work or reasonable and limited portions of any other work, or display a work in an amount comparable to that which is typically displayed in the course of a live classroom session;
- The performance or display is made by an instructor (or someone acting at their direction or under their supervision) as an integral part of a class and as a regular part of the course;
- The performance or display is directly related to and of "material assistance" to the teaching content;
- The transmission is only distributed to, and to the extent technologically feasible is only received by, students enrolled in the course; and
- The school or institution has copyright policies in place, specifically: informational materials provided to faculty, students, and relevant staff members that accurately describe and promote compliance with U.S. Copyright Law, and notices to students that materials used in connection with the course may be subject to copyright protection;
- application of technological measures that reasonably prevent retention of the work by the students for longer than the class session or dissemination of the work to others; and
- prevention of conduct that could reasonably be expected to interfere with technological measures used by copyright owners to prevent retention or unauthorized dissemination.
Fair Use: The Fair Use Doctrine, 17 US.C. §107, also allows educators limited use of copyrighted materials, without needing permission from rights holders. Again, many educators may already be somewhat familiar with the Fair Use Doctrine. Fair use is a defense to copyright infringement, and its applicability is determined by looking at four highly subjective and fact-dependent factors:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
A fair use defense is highly subjective, context specific, and decided on a case-by-case basis by the judge or jury, so it is difficult to draw bright line rules on the type of use that will be considered a "fair use." That said, in enacting the Fair Use defense, Congress provided several examples that are applicable to the educational context. The most relevant example for online learning includes "reproduction by a teacher or student of a small part of a work to illustrate a lesson." H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. (1976) at 65. Congress also stated that it intended fair use to be "centered around questions of classroom reproduction, particularly photocopying." Id. at 66. For example, "a single copy may be made of any of the following by or for a teacher at his or her individual request for his or her scholarly research or use in teaching or preparation to teach a class: a chapter from a book; an article from a periodical or newspaper; a short story, short essay or short poem, whether or not from a collective work; or a chart, graph, diagram, drawing, cartoon or picture from a book, periodical, or newspaper." Id. at 68.
Though stricter guidelines apply, educators may also make multiple copies of a work for classroom use without infringing on someone's copyright, "provided that: the copying meets the tests of brevity and spontaneity [as defined in the guidelines]; and meets the cumulative effect test [as defined in the guidelines]; and each copy includes a notice of copyright." Id.
- The brevity guidelines provide length restrictions for copying poetry, prose, illustrations, and special works. For example, it would be fair use to copy "a complete poem if less than 250 words and if printed on not more than two pages or, from a longer poem, an excerpt of not more than 250 words."
- Spontaneity occurs when "the copying is at the instance and inspiration of the individual teacher," and "it would be unreasonable to expect a timely reply to a request for permission" to use the work.
- The cumulative effect test guidelines for copying are as follows: "the copying of the material is for only one course in the school in which the copies are made; not more than one short poem, article, story, essay or two excerpts may be copied from the same author, nor more than three from the same collective work or periodical volume during one class term; and there shall not be more than nine instances of such multiple copying for one course during one class term."
Be sure to read the full text of the Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with respect to books and periodicals.
A recent public statement by librarians calls for an "emergency fair use exception." Educators should be aware that such an exception does not currently exist and thus should not be relied upon. Instead, educators should ideally rely on the TEACH Act and fair use provisions that are already in place and that protect rights holders and provide educators options for online learning.
Existing Licenses: Educators may also want to review their existing licenses related to distribution of classroom materials. Educators likely have agreements in place for in-class materials, and these agreements may or may not extend to distribution in electronic form. To expand the license rights, a licensee should contact the publisher.
Expanded Publisher Licenses: Given the circumstances, many publishers are posting temporary expansions to their standard terms. For instance, Lee & Low Books is allowing educators to post a recording of a reading of one of their titles online for non-commercial purposes, provided they note at the beginning of the video that they are "reading with permission from Lee & Low Books"; they post or share the video on "closed platforms"; they tag Lee & Low on social media; and they remove the recording from the archive after 24 hours if streamed live on social media platforms. Similarly, Disney Publishing is giving educators and librarians permission to read Disney Press titles online. They also require a disclaimer at the beginning of the video and limit the post to a closed platform, but additionally ask that educators send an email to Disney Publishing with contact information and a link of the recorded video and set a termination date of June 30, 2020. HarperCollins Publishers has granted similar permissions to educators, librarians, booksellers, and authors. Other publishers' guidelines are a bit narrower. In addition to the above-mentioned guidelines, Simon & Schuster is allowing formats for younger children to be read in their entirety, but ask that chapter books and novels be limited to a few chapters. Please review the applicable publisher guidelines.
Creative Commons Licenses: Some educators may also choose to expand the use of works licensed under a Creative Commons license in these times. As always, be cautious of the terms applicable to the work, as many Creative Commons licenses limit the use or require attribution, and not complying with those requirements is a breach of that license.
Thank you to all of the educators who are doing their best during this unprecedented time to continue the tremendously important work of educating our children. We continue to analyze copyright issues as they arise in the time of COVID-19 and will keep you updated. If you have any questions, please reach out to the authors or anyone else on the Venable Copyright Team.