Copyright laws provide authors with an incentive to create new works by giving them exclusive control over their creations’ use and profits for a fixed period. The law of copyright applies to authorship, human creations that fix an idea in a specific expression. It is the expression rather than the idea that is protected. In order to qualify for copyright protection, the expression must not be a useful item. (Useful items are covered by patent law instead.) The following elements must be met for a work of authorship to be eligible for copyright:
Copyright is created immediately as soon as the work is created and fixed. Unlike older copyright statutes, the 1976 Copyright Act does not require the notice "Copyright," the © "C in a circle," or registration with the U.S. Copyright Office. However, you do have to have a registration in order to file a lawsuit for copyright infringement.
Fair Use depends on four factors. There is no amount that is always fair. In every case you have to evaluate all four factors independently. The statute is 17 U.S. Code section 107, and consists of the following language:
[T]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include–
You would have to do this analysis on every single chapter you posted, and most of the time it would come out against fair use because of factors 2, 3, and 4. Fair use wasn't meant for emergency pandemic situations. But that isn't the only exception that might apply.
Online nonprofit accredited education is governed by the T.E.A.C.H. Act, 17 U.S. Code section 110(2). It was created because there was a difference between face-to-face classes and distance classes. Face-to-face classes have an exception for performances and displays in non-profit education, 17 U.S. Code section 110(1). The kinds of work most often displayed in classes include written material, articles, images, or musical scores. Generally, a performance includes films and videos, musical or dance recordings, etc. Showing students the script for a play is a display, while reading or acting the play would be a performance.
The T.E.A.C.H. Act tries to level the playing field with regard to performances and displays. As long as the online class doesn't perform or display more than is needed for the pedagogical requirements of the class, it will fall within the exception. The T.E.A.C.H. Act only applies to accredited non-profit institutions. While for-profit schools are allowed to perform or display work under the F2F provisions, for-profit schools such as the University of Phoenix are not able to take advantage of section 110(2) and must pay to license the work.
Although you may not transmit a full dramatic film or plays, the statute does allow transmission of “reasonable and limited portions” of dramatic works, as well as “display of a work in an amount comparable to that which is typically displayed in the course of a live classroom session.”
The lesson to take away from this portion of the statute is that you should not show an entire dramatic film or play. Show the students only the reasonable and limited portions that pertain to the course material. That way you will fall under the provisions of the distance education exemption. And, of course, the copy you use must be made legally. An illegal copy is an illegal copy, so if you use it in a class, you will still be in violation of the law.
There are several other requirements you must comply with in order to claim the protection of the T.E.A.C.H. Act. In order to rely on section 110(2), the performance or display must be made as part of a regular class that is offered for credit. The material must be related to the teaching content of the course, and it must be made available only to students enrolled in the class. The statute also directs that the material must be available to students for no longer than the class session, and there must be technological protections so that students can’t download or further disseminate the material.
In order to comply with these provisions, you should make sure that any materials you transmit are behind the password wall in your course management software. This will ensure that only those students who are enrolled in the class will be able to access the content.
To prevent students from downloading or passing on the materials, use technologies such as streaming video. This will fulfill the requirement for “technological protections.” Since most distance education courses don’t really have a “class session,” I recommend making that material available only for the week in which your class is covering the related content. Once that week is up, remove the material or make it unavailable to students.
The T.E.A.C.H. Act does not apply to works made specifically for distance education classes. This means that you must obtain a license in order to use digital objects, “canned” online classes, and films which are made specifically for use in distance education classes. Since these works have been created specifically for online courses, there would be no way for the creator to get paid if they were part of the T.E.A.C.H. Act exemptions. Instead, I would recommend using OER objects, streaming video from your library subscriptions, etc.
The statute requires institutions to “provides notice to students that materials used in connection with the course may be subject to copyright protection.” The easiest way to accomplish this is to include a disclaimer in your syllabus and with the actual materials themselves. I recommend something similar to the following language:
Materials used in connection with the course may be subject to copyright protection. Copyright law prohibits any further reproduction, duplication, or distribution of these materials.
My analysis of copyright law provides an argument that, under the circumstances, we could display the text of a textbook. I'm using the term display as defined in 17 U.S. Code section 101, which contains all the definitions for the copyright act. It reads:
"To "display" a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially."
Scanning reserve materials or textbooks (under these circumstances) may constitute a display if done in such a way that the student is not able to download, forward, or print the image. The best way to do this is to use a streaming platform. However, since not every educational institution is set up to do this, a quick-and-dirty way is to scan to a read-only "image" pdf file and enable security settings. In my opinion, this would be a display under the copyright act, and thus fall within the TEACH Act exception in 17 U.S. Code section 110(2).
Please note that regardless of circumstances, all normal rules for items on reserve apply. For example, you must use legal copies that were legally obtained. These materials may only be used for this one semester. Any use in a future semester will require a license from the publisher. This is a standard rule regarding copies made for reserve or handed out in class.
For information on how to create a read-only copy and enable security settings, see:
Dr. Bryan Carson
Attorney (Kentucky Bar Assn # 84075)
Murrell Library Missouri Valley College
500 E. College Street
Marshall, Missouri 65340
* The Law of Libraries & Archives
(Scarecrow Press, 2007)
* Finding the Law: Legal Research for
Librarians and Paralegals
(Scarecrow Press, 2011)
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