Copyright and Fair Use in the Online Classroom

Activity 3: Copyright and Fair Use in the Online Classroom

Welcome to the Copyright and Fair Use in the Online Classroom activity, designed for teachers and course designers. Rebecca Nesson, combining her background in law and course design, will lead you through this efficient primer in what you need to know to effectively, responsibly, and safely use copyrighted materials in your online courses. 

Goals

This module provides a primer for instructors and course designers on using copyrighted materials as part of the teaching materials in a face-to-face or online class. After taking this module an instructor or course designer will be able to: 

This training, of course, is not a replacement for legal advice. Please make sure that you check with your home institution for specifics of the copyright guidelines you should be following.

 

 

Using Copyrighted Works in the Classroom

Getting Started

No Matter What Type of Course You're Building

It's helpful to take some time to review the basics of copyright and how it works in a typical in-person course. Once you've reviewed this section, you can jump to the sections that most apply to your online courses.

Scenario 1: The Engaging Teacher

Instructions

Review the following scenario and spend a few minutes reflecting on the possible Copyright issues. This scenario is designed to provoke thought and prepare you for the upcoming instructional material. You are not expected to be certain of your answers. 

Scenario 1: The Engaging Teacher

Mr. K prides himself on creating a lively, engaged feel in his classroom. He wants his students to be relaxed and engaged. Each day as students come into his classroom and take their seats he plays a pop song that relates in some way to the topic of the day. Students enjoy picking out the relationship to the course materials, which is sometimes pretty far fetched because there are only so many pop songs that relate directly to high school biology. During class Mr. K teaches using a combination of board work and PowerPoint. In his PowerPoint he often uses graphics or images that he finds online to illustrate concepts or spice up the slides. In the section of the course about genetics he takes a class period to show the movie Gattaca and then has a classroom debate about the ethics of genetic engineering. He often sends students home with articles about biology-related current events he's printed and photocopied so that students will make the connection between their coursework and current events. 

 

Do you think any of Mr. K's classroom activities raise copyright concerns?

Understanding Copyright and Public Performance

Please watch the following video for a brief introduction to Copyright law and the exemption for public performances in face-to-face classrooms.

US Code Title 17, Section 110(1)

Here is the text of the exemption for display or performance of copyrighted works in a face-to-face classroom:

Notwithstanding the provisions of section 106, the following are not infringements of copyright:   (1) performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made;

Source: http://www.copyright.gov/title17/92chap1.html#110

There are also some legislative notes that further elaborate on the intentions and application of the exemption:  

Face-to-Face Teaching Activities. Clause (1) of section 110 is generally intended to set out the conditions under which performances or displays, in the course of instructional activities other than educational broadcasting, are to be exempted from copyright control. The clause covers all types of copyrighted works, and exempts their performance or display “by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution,” where the activities take place “in a classroom or similar place devoted to instruction.” There appears to be no need for a statutory definition of “face-to-face” teaching activities to clarify the scope of the provision. “Face-to-face teaching activities” under clause (1) embrace instructional perform­ances and displays that are not “transmitted.” The concept does not require that the teacher and students be able to see each other, although it does require their simultaneous presence in the same general place. Use of the phrase “in the course of face-to-face teaching activities” is intended to exclude broadcasting or other transmissions from an outside location into classrooms, whether radio or television and whether open or closed circuit. However, as long as the instructor and pupils are in the same building or general area, the exemption would extend to the use of devices for amplifying or reproducing sound and for projecting visual images. The “teaching activities” exempted by the clause encompass systematic instruction of a very wide variety of subjects, but they do not include performances or displays, whatever their cultural value or intellectual appeal, that are given for the recreation or entertainment of any part of their audience. Works Affected Since there is no limitation on the types of works covered by the exemption, teachers or students would be free to perform or display anything in class as long as the other conditions of the clause are met. They could read aloud from copyrighted text material, act out a drama, play or sing a musical work, perform a motion picture or filmstrip, or display text or pictorial material to the class by means of a projector. However, nothing in this provision is intended to sanction the unauthorized reproduction of copies or phonorecords for the purpose of classroom performance or display, and the clause contains a special exception dealing with performances from unlawfully made copies of motion pictures and other audiovisual works, to be discussed below. Instructors or Pupils To come within clause (1), the performance or display must be “by instructors or pupils,” thus ruling out performances by actors, singers, or instrumentalists brought in from outside the school to put on a program. However, the term “instructors” would be broad enough to include guest lecturers if their instructional activities remain confined to classroom situations. In general, the term “pupils” refers to the enrolled members of a class. Nonprofit Educational Institution Clause (1) makes clear that it applies only to the teaching activities “of a nonprofit educational institution,” thus excluding from the exemption performances or displays in profit-making institutions such as dance studios and language schools. 

Source: https://www.law.cornell.edu/uscode/text/17/110 (see the notes tab)

Can you use film/media in classrooms?

Movies or cartoons shown by a teacher to their students in a face-to-face classroom must be directly related to the course material to fall under the public performance and display education exception.

  • Yes
  • No

Can you use media in PowerPoints?

The exam is coming up and the teacher wants to make the slides from the PowerPoint presentations she gave in class available to students. This is allowed under the public performance and display education exception as long as they are only shared with the students in the class. 

  • Yes
  • No

Can you make copies of a work?

Teachers can make copies of works for use in their face-to-face classroom under the education exemption to the rules public display and performance as long as they legally obtained the work they are copying and they only use it during class. 

  • Yes
  • No

What's not covered by the education exemption?

What typical classroom or face-to-face class activities can you think of that are not covered by the education exemption to the public performance and display rule? Try to provide at least two.

Understanding Fair Use

Introduction to Fair Use, Part 1

In the above video, Rebecca introduces the Fair Use doctrine.

Here is the text of US Code Title 17, Section 107, dealing with Fair Use: 

Notwithstanding the provisions of sections 106 and 106A, the 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—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Source: http://www.copyright.gov/title17/92chap1.html#107 

Introduction to Fair Use, Part 2

Watch the following video to learn a bit more of the practicalities of assessing and avoiding risk in a classroom setting.

Review the Agreement on Guidelines for Classroom Copying in Nonprofit Educational Institutions. 

GuidelinesClassroomCopying

Is it copyright infringement?

If a teacher photocopies a 200 word poem and hands out a single copy to each student in his class, he cannot be sued for copyright infringement because his use is a fair use and explicitly falls within in the legislative guidelines for classroom use by teachers. 

  • True
  • False

Back to Mr. K's Classroom Activities

Analyze Mr. K's use of current events articles for homework using the guidelines classroom fair use. How can he ensure that his uses are likely to fall within the guidelines? Is it in his favor that he's using current news articles? Does it matter that he's sending the articles home for homework rather than incorporating them in classroom activities? 

https://www.law.cornell.edu/uscode/text/17/107

Your Organization

What are the policies for instructor use of copyrighted materials in teaching at your institution? Who can you go to get guidance on institutional policies for use of copyrighted materials? See if you can find the policy or an individual contact who you can reach out to.  

The TEACH Act and Licensing Content

Professor S. Goes Online

Instructions

Review the following scenario and spend a few minutes reflecting on the possible Copyright issues. This scenario is designed to provoke thought and prepare you for the upcoming instructional material. You are not expected to be certain of your answers. 

Scenario 2: Professor S. Goes Online

Professor S. has been teaching in face-to-face classrooms for years. In her opinion it is a pretty straightforward lecture class with a few instances of small group discussion activities. Her slides don't include a lot of graphics, but she does have some that include graphs from scholarly articles. In one class she shows a documentary film that she has on DVD. She has a couple of classroom activities where she passes out paragraphs from articles to her students to review in pairs.

This year her department head as asked her to offer her class online with video taped lectures and asynchronous activities in the LMS. She is a little nervous about doing it, but is OK with proceeding as long as she doesn't have to alter her course material.

Reflect

Take a few minutes to reflect on how this situation differs from the earlier scenario. What copyright issues might Professor S. face? Is she protected in the same way as Mr. K? While you are not expected to know all the answers, you should be able to identify the issues and reflect thoughtfully on them. 

How Things Differ in the Online Classroom

Review the TEACH Act: 

Notwithstanding the provisions of section 106, (Links to an external site.) the following are not infringements of copyright:...(2) except with respect to a work produced or marketed primarily for performance or display as part of mediated instructional activities transmitted via digital networks, or a performance or display that is given by means of a copy or phonorecord that is not lawfully made and acquired under this title, and the transmitting government body or accredited nonprofit educational institution knew or had reason to believe was not lawfully made and acquired, the performance of a nondramatic literary or musical work or reasonable and limited portions of any other work, or display of a work in an amount comparable to that which is typically displayed in the course of a live classroom session, by or in the course of a transmission, if—  (A) the performance or display is made by, at the direction of, or under the actual supervision of an instructor as an integral part of a class session offered as a regular part of the systematic mediated instructional activities of a governmental body or an accredited nonprofit educational institution;  (B) the performance or display is directly related and of material assistance to the teaching content of the transmission;  (C) the transmission is made solely for, and, to the extent technologically feasible, the reception of such transmission is limited to—    (i) students officially enrolled in the course for which the transmission is made; or    (ii) officers or employees of governmental bodies as a part of their official duties or employment; and  (D) the transmitting body or institution—    (i) institutes policies regarding copyright, provides informational materials to faculty, students, and relevant staff members that accurately describe, and promote compliance with, the laws of the United States relating to copyright, and provides notice to students that materials used in connection with the course may be subject to copyright protection; and    (ii) in the case of digital transmissions—      (I) applies technological measures that reasonably prevent—        (aa) retention of the work in accessible form by recipients of the transmission from the transmitting body or institution for longer than the class session; and        (bb) unauthorized further dissemination of the work in accessible form by such recipients to others; and      (II) does not engage in conduct that could reasonably be expected to interfere with technological measures used by copyright owners to prevent such retention or unauthorized further dissemination;

http://www.copyright.gov/title17/92chap1.html#110 

One challenging piece of the TEACH Act is the term "class session". How do we interpret this in asynchronous online learning contexts?

Can you show film/media in an online course?

Can Professor S. show the documentary film she usually shows in her online class? Why or why not? As her course designer, what would you advise her about whether to use the film and/or how to use it in a way that will not put her at legal risk? 

 

Can you distribute articles in an online course?

What about Professor S. distributing articles or excerpts from articles to her students as part of small group, asynchronous discussion activities on the course website? Is this protected under the TEACH Act exemption or the fair use guidelines for classroom use? As Professor S.'s course designer, how would you advise her? 

When the TEACH Act Doesn't Apply

Open and For-Profit Courses

A Different Situation

If your course is open to the public or if you're not designing for a non-profit educational institution, you need to be much more careful because the TEACH Act does not apply to you.

So what do you do? 

There are a few principles that can help guide your work (though you should consult your organization for any specific guidelines that they have):

1. Use Open Source Materials

Instead of using copyrighted images, music, etc., try using materials that are "open source" or in "creative commons," which means that the content has been designated as acceptable for re-use. Make sure that you pay attention to the license that is associated with the content. If something is designated for "non-commercial" use, for example, you can't use it in a for-profit course. If it's designated "non-deriv" you can't alter it to make "derivative" works. 

You'll find a list of good sources for open source and creative commons materials on the next page. 

2. Create Your Own Materials

Instead of using copyrighted materials, for example a chart or an infographic, create your own version of what you need. Be careful not to duplicate the original work. Instead, think about your goals for the content and build something that specifically suits your needs.

3. Link to or Embed from Official Sources

If an article or video was posted to the web by a random person, you should avoid it. But if it was posted by an official source, it is generally considered OK to link to it. Likewise, if a video is posted by an official source and the embed code is made available for use, you can embed the video.

4. Have Students Purchase Materials

If a film, TV show, or song is crucial to your course, link your students to a place where they can purchase a version to stream. If you choose this method, make sure that your students are aware of the costs up front. 

5. Obtain Permissions

If copyrighted material is crucial for your course and there are no other options, you can seek permission to use the material from the copyright holder. This can be time consuming and expensive, and it will put you on the radar of the copyright holder. 

You can also try to make a "Fair Use" claim, but in an open or for-profit context, this is hard to do and can open you to litigation. 

Read More

Open Source and Creative Commons Resources

Resources

Here are some sources for open source, creative commons or public domain resources. 

Copyright Conclusions

Copyright Conclusions

Thank you for participating in this Copyright basics module. You may download the following outline/notes for reference: