Copyright and Fair Use in an Online or Face to Face Classroom

Fair Use is not a right, but it is a set of criteria to follow to ensure that, if a professor or institution is taken to court by a copyright holder, it may be demonstrated that the use of the material responds to the following two questions in a way that implies "Fair Use":

1) Was the use of the work/material transformative, i.e., did it add value to and/or repurpose the original work for a new audience?

2) Was the amount of material used appropriate to achieve a transformative purpose, that is, a specific (learning) outcome different from the purpose of the entire original work?

The two questions above are based on four factors that should be considered in evaluating "Fair Use."

  • Purpose and character of the use: Is the use for a non-profit purpose? For an educational purpose? Is the use of the work/material "transformative" - that is, has something new been added to the work so that it's original purpose is not achieved? For example, playing a recording of a small portion of a song in a class - a part of the song that is not the "heart of the work" - is more likely to constitute "fair use" than playing the entire song, or the entire main chorus of a song. Non-profit, educational, and transformative uses are more likely to be considered "fair use."
  • Nature of the copyrighted work: Is the work used creative in nature (like a poem, song, or movie drama), or is it factual? Using material that is factual in nature is more likely to constitute "fair use" than using a creative piece.
  • Amount and substantiality of the portion used in relation to the copyrighted work as a whole: This considers the quantity (amount, length, etc.) of the portion used, and the quality (importance of, "heart of a work") of the portion used. Generally speaking, using less is best. But some courts have found the use of large portions of a work to be "fair use," while other courts have found the use of small portions to be an infringement.  Avoiding the use of "the heart of a work" is also, best. The "heart" of a work implies the portion that is it's "signature," or the part that constitutes the aspect of a work that makes an entire work a unique contribution. Examples might include the chorus/refrain of a song, the climactic scene of a movie (spoilers!), or the detailed conclusion of an argument or speech.
  • Effect of the use upon the potential market: Does the use of the portion of a work have a negative effect on the current market of the original work? Does the use potentially damage the marketability of the original work to its originally intended audience? If so, it is more likely to be an infringement upon "fair use."
 
None of the information or suggestions in this guide constitutes legal counsel. This guide offers only a presentation and interpretation of how portions of 17 U.S. Code might be properly appropriated so that copyrighted works might be reproduced, digitally copied, displayed, performed, or otherwise made accessible to students in both face-to-face and online teaching environments.
All information in this guide is adapted from the University of Texas Libraries’ Fair Use and TEACH Act library guides. Accessed June 22, 2020 @ https://guides.lib.utexas.edu/fairuse/home and http://guides.lib.utexas.edu/copyright/teachact

 

17 U.S. Code 107 Limitations on Exclusive Rights: 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.

 

None of the information or suggestions in this guide constitutes legal counsel. This guide offers only a presentation and interpretation of how portions of 17 U.S. Code might be properly appropriated so that copyrighted works might be reproduced, digitally copied, displayed, performed, or otherwise made accessible to students in both face-to-face and online teaching environments.
All information in this guide is adapted from the University of Texas Libraries’ Fair Use and TEACH Act library guides. Accessed June 22, 2020 @ https://guides.lib.utexas.edu/fairuse/home and http://guides.lib.utexas.edu/copyright/teachact

The Copyright Act (17 U.S. Code 110[1]) allows for educators to display (show) and perform (show or play) an other's work, regardless of medium, in a classroom.

The Teach Act (17 U.S. Code 110[2]) attempts to craft online educators' rights to make copies of performances and displays, in a way that is more in line with the rights of those teaching face-to-face. However, due to the nature of online learning that requires digital copies of works be made and posted for accessibility, such materials must be edited down, or cut into clips (audio or audiovisual) of "reasonable and limited proportions."

Section 17 U.S. Code 110[1-2] Condensed for a Flagler College 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;

(2)…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,

(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…

 

None of the information or suggestions in this guide constitutes legal counsel. This guide offers only a presentation and interpretation of how portions of 17 U.S. Code might be properly appropriated so that copyrighted works might be reproduced, digitally copied, displayed, performed, or otherwise made accessible to students in both face-to-face and online teaching environments.
All information in this guide is adapted from the University of Texas Libraries’ Fair Use and TEACH Act library guides. Accessed June 22, 2020 @ https://guides.lib.utexas.edu/fairuse/home and http://guides.lib.utexas.edu/copyright/teachact

 

What follows below are suggestions of how to accomplish "editing down" and/or "cutting into clips" so that the pedagogical use of copyrighted materials remains within the bounds of "Fair Use" following the the Copyright Act (17 U.S. Code 110[1]) and the Teach Act (17 U.S. Code 110[2]).

Canvas, Course Reserves, & Coursepacks

Rule of thumb: Use as little of the copyrighted material as possible to achieve a learning outcome.

For Canvas, Course Reserves, and Coursepacks, try to limit both the amount of and access to the material.

  1. Limit access to the students enrolled in a class by posting copyrighted material to Canvas.
  2. Terminate access to all limited access copyrighted material as soon as possible.
  3. Make only small amounts of the total material available at a time. Thus, only short sections of chapters, or single chapters, etc. [In Canvas, course readings of scanned/uploaded copyrighted material can be created as “Assignments” and limited by setting as “Available from”-“Until”]
  4. Use copies of copyrighted material already available to you, your colleagues, or that the library already has in its possession legally.

Images and Audiovisual Materials

Images and audiovisual material may be digitized and made accessible if the intended use is transformative and the amount used is appropriate for achieving a learning outcome. When the use of our institution’s own unique holdings is transformative, digitizing them for educational use likely constitutes fair use. Digitized copyrighted material that is not unique to our institution’s holdings, can be made accessible for educational purposes with limitations.

  1. Limit access to the students enrolled in a class by posting all copyrighted images, audio, and audiovisual material to Canvas.
  2. Terminate access to all copyrighted images, audio, and audiovisual material as soon as possible.
  3. Make only small amounts of the total material available at a time. Thus, short audio/audiovisual clips, and low resolution images. [In Canvas, images, audio, and audiovisual material can be made accessible under “Assignments” and limited by setting as “Available from”-“Until”]
  4. Use copyrighted images, audio, and audiovisual material already available to you, your colleagues, or that the library already has in its possession legally.

Fair Use Rules of Thumb

Because it is always best to err on the side of caution, here are suggested “rules of thumb” to use.

  1. When in any doubt, get permission from the copyright holder a/o publisher.
  2. When teaching online, limit material to Canvas. Limit the amount of material, and the time the material is accessible to as little as possible to achieve a learning outcome.
  3. Always offer notice of copyright for all material made accessible.
 
None of the information or suggestions in this guide constitutes legal counsel. This guide offers only a presentation and interpretation of how portions of 17 U.S. Code might be properly appropriated so that copyrighted works might be reproduced, digitally copied, displayed, performed, or otherwise made accessible to students in both face-to-face and online teaching environments.
All information in this guide is adapted from the University of Texas Libraries’ Fair Use and TEACH Act library guides. Accessed June 22, 2020 @ https://guides.lib.utexas.edu/fairuse/home and http://guides.lib.utexas.edu/copyright/teachact
 

If you have any questions about Copyright, Fair Use, the Teach Act, or just want to think through a situation involving the use of copyrighted material in an online or face-to-face class setting with a copyright law non-expert, librarian-biblical scholar, please either send an email or give a phone call to Jack Daniels - Teaching & Learning Librarian.

danielsj@flagler.edu

(o) 904-819-6330

(c) 904-806-7525