Using Without Asking: Applying Copyright Law to Online Educational Course Materials
It is commonplace nowadays for universities to utilize online course delivery or university-supported Course Management Systems to engage with students. U.S. Copyright law includes provisions specifically for teachers so that under certain circumstances, they can use copyrightable works of others without permission from the copyright owner. However, the law includes very specific limitations, and that means that teachers cannot simply use whatever materials they want to teach their classes, but if they follow the guidelines, there are likely enough protections under the law for teachers to broaden their teaching horizons online and offline.
There are three main legal avenues of protection for teachers under the Copyright Act. The first appears in Section 110(1). This provision focuses on face-to-face teaching and permits teachers and students to broadly use, perform and display any legally made copies of copyrightable works in a physical classroom setting of a nonprofit educational institution.
The second is the TEACH Act, appearing in Section 110(2) of the Copyright Act, and this provision expands the scope of teachers’ rights to perform and display works for online distance education. However, the TEACH Act does not permit the use of the following: copyrightable works that are developed specifically for online use, textbook materials typically purchased or acquired by students for the classroom setting, electronic reserve materials, electronic or paper course packs, interlibrary loan materials, or content provided under license from the rights holder. Also, the TEACH Act only allows works to be digitized when a digital version is unavailable or protected by technological measures, and only if the converted material is used for authorized transmissions.
With several limitations imposed by the TEACH Act, the “Fair Use” doctrine of the Copyright Act (Section 107) becomes an important tool for teachers The Fair Use doctrine is a copyright exception that protects unauthorized uses of a copyrightable work for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. Fair Use involves an analysis of four factors to determine whether the use of a work is a fair use:
- Purpose or character of use (commercial or educational; whether it is transformative)
- Nature of the copyrighted work (an unpublished creative work is entitled to greater protection against fair use than a published nonfiction work)
- Amount and substantiality of the portion used (is it a substantial percentage of the previous work or essentially the heart of the previous work?)
- Impact on future commercial exploitation of the work (would unauthorized copying deprive copyright owner of income?)
These factors are neither rigid nor exhaustive, allowing courts to use their discretion to consider other relevant information. Notably, there is a widespread misconception that if one’s unauthorized use is for educational purposes, it is automatically a Fair Use. This is not true, because there may be situations when the factors as a whole weigh against a Fair Use finding even when the purpose is seemingly educational. For example, scanning and posting to a website an entire copyrightable work without permission could weigh against a Fair Use finding, especially if those actions resulted in lost revenue for the publisher.
Applying the above legal principles to Professor Smith, who we met in the previous blog post, Professor Smith needs to know if she is in trouble for the content she uploaded to her newly created website. She was careful to create the site within the university’s password-restricted Course Management System, and it is only available to students currently enrolled in her Economics course. However, Professor Smith filled the site with excerpts she copied and scanned from various published economics textbooks that she found in the library.
Section 110(1) would not apply to Professor Smith’s situation, because that portion of the law only applies to the use of works in a face-to-face classroom setting. The TEACH Act is not applicable either, because it specifically excludes the online use of textbook materials that students typically purchase or acquire for classroom use. So, Professor Smith’s only hope lies in the Fair Use doctrine.
The first Fair Use factor weighs in favor of a Fair Use finding, because the use is for teaching purposes and not for direct commercial gain. Factor two also weighs in favor of Fair Use, because the excerpts from the books were previously published and are not as creative as fictional works. Factor three supports a Fair Use finding, because the excerpts from larger works demonstrated Smith’s restraint in selecting only what she needed to make her points. However, note that one cannot assume that using only excerpts of a larger work leads to a finding of Fair Use, because sometimes the heart of the work is reflected in small excerpts. Whether portions of a work amount to the heart of that work is fairly subjective; however, in Professor Smith’s case, she is aware that the portions she used were rarely used by others. Under the fourth factor, restricting access of book excerpts to current students in a password-protected setting minimizes the potential effect on the publisher’s commercial exploitation of the book, so this would favor a Fair Use finding. The dynamic of the fourth factor might change if the book publisher offered excerpts for sale to students, because then Professor Smith would simply be duplicating the publisher’s effort, and that would affect the value of the publisher’s excerpt. Balancing the four factors, Professor Smith’s activities are likely to constitute Fair Use under the law.
The above analysis would change dramatically for Professor Smith if the facts were a bit different. Had she not utilized a secure university web portal and had she scanned and uploaded entire unpublished articles written by her colleagues (without permission), Fair Use would not likely apply. While the first Fair Use factor would favor the professor – since the purpose of her website is for teaching purposes and not personal financial gain, the second factor would not favor Fair Use, because the professor had no permission to publish her colleagues’ works. Factor three would not be favorable either since the articles in their entirety were used. As to the fourth factor, it is highly possible that the commercial value of her colleagues’ articles would be affected by the professor’s posting of them on a publicly available site.
Professors, students, teaching assistants, and others in the university setting need to be mindful of all of the ways that copyright law may permit the use of another’s copyrightable work without getting permission along with the sometimes strict requirements for doing so. Concepts such as Fair Use are never as straightforward as they may seem and are entirely fact-dependent, so universities should consider implementing tools such as copyright policies and legal checklists to help the university community to navigate these somewhat murky waters and minimize the university’s legal liability in the process.
By Adam W. Sikich, Esq.