These unprecedented times find many of us confronting new copyright situations as we move to support students and teach classes remotely.
In addition to the information on this guide you may want to consider:
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Jacquelyn Ray, MLIS, MALibrary Director |
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We use copyrighted works every day. The very foundation of education is sharing and building on materials that were created by other people. We strive to create the most effective educational experience while still maintaining our integrity in distributing copyrighted materials.
Please use the following resources to help determine if your use of copyrighted materials falls within ethical and legal guidelines.
Fair use is the flexible and dynamic exception to copyright law that serves to balance the rights of creators with the public interest in using copyrighted works to advance education, to comment and criticize, and to make new creative content. Its flexibility is often somewhat intimidating or frightening because when considering fair use it is very rare to know with certainty that a use is fair, only that it is more or less likely to be fair. It can be frustrating that the law does not give us any clear answers regarding amounts we can use and know that we are "safe". Fortunately, there are ways of understanding the purpose and function of fair use that can help us feel more confident about evaluations and maybe even come to love fair use for its flexibility.
It is important to remember that using a checklist will never let you determine with certainty whether or not a use is fair. It can, however, help you organize and, importantly, document your thinking. It's a great idea to use and print a fair use checklist whenever you are dealing with a tricky fair use situation. Take the time to document your thinking in case of a future challenge!
This checklist allows you to check off the factors at play in your analysis, as well as add text that explains your thinking, and then emails you your results. This is a great thing to keep for your records.
Columbia University provides excellent context for why and how to use a checklist and provides a checklist for your use.
The Center for Media and Social Impact has worked with a wide variety of user communities to document the best practices for applying fair use in those communities.
Fair use is determined by considering four factors of that use. No one factor is determinative; each factor must be considered and weighed. Usually after considering each of the four factors and weighing how much each fact of your particular situation favors or disfavors fair use, you are left with an overall sense that your use is "probably fair" or "probably not fair". Really, only the courts can offer us definitive answers.
How do you propose to use the work? Purposes that favor fair use include education, scholarship, research, news reporting, criticism and commentary. Non-profit purposes also favor fair use. Commercial uses weigh against fair use.
The biggest mistake we see educators making is mistaking their educational context for an educational purpose. If you create a class website or presentation and put a pretty picture on it primarily for decoration or visual interest, this is very different from an image about which you are providing direct instruction.
Remembering copyright is designed to protect works of creative expression, the more highly creative the work you want to use is, the more fair use is weighed against. This is, of course, subjective. We might say, in general, a novel would be more highly creative than a work of non-fiction but, of course, there is a huge range of creativity within the huge category of "non-fiction". Unpublished works would also be less likely to qualify for a fair use than published works.
This is the one where everyone seems to want to see some percentage or number of pages that will always be fair. There is no 
such number. The goal of fair use is to make available a wide and unpredictable set uses. Could a legislator predict in advance that a future satirist would never need more than ten percent of a work in order to make their point? Of course not.
As a general principle: using less of a work is always more likely to be fair than using more. The smaller the portion used is relative to the whole, the more likely the use is to be fair.
It is also true, however, that using an entire work can be and often is a fair use.
Another guiding principle: using only the portion of a work that is absolutely necessary in order to meet the educational (or other fair) purpose you have in mind is more likely to be fair than using more than is necessary. For example, if you are considering copying a 4 page article for your class because the author makes an argument you'd like to discuss but that argument could be well understood by reading just a couple of paragraphs of the article, copying just those paragraphs would much more strongly favor fair use than copying the whole article.
The more the portion you want to use represents the "heart of the work", the less likely your use is to be fair. This can be a very difficult one to assess.
The most useful way to think about this factor is to ask if your use could substitute for the original in the marketplace. Would your use substitute for sales either to your students or to anyone else? A confusing piece here is the permissions market. A strong market exists in selling permissions to use content, especially things like book chapters and journal articles. So it can be easy to say "Oh, of course my student won't be subscribing to Professional Journal X so copying an article certainly doesn't substitute in the market". But it would substitute for that secondary permissions market. We don't at this time have truly conclusive case law to guide us in thinking about the permissions market but it does seem very likely that where there is a viable permissions market for the material you want to use, this would weigh against fair use.
Once you have looked at all of the factors, you can assess if taken as a whole your use seems likely to be fair or likely to be unfair. No single factor is determinative and you could "strike out" in three categories but have the remaining category weigh so strongly in favor of fair use that, overall, your use is fair. We discuss this in more depth below in "Thinking about Fair Use: Transformativeness".
This guide acknowledges the work of Rachel Bridgewater; Faculty Librarian at Portland Community College and is used with permission.
This work by PCC Library is licensed by Portland Community College under a Creative Commons Attribution 4.0 International License.
"Why don't the laws that apply in the physical classroom apply in the online classroom?". It's hard to answer that question without editorializing about the legislative history of the TEACH Act but the short answer is that, as distance education began to become commonplace there was an effort to update the Classroom Use Exception that we as educators have always relied upon to give us broad latitude to display and perform copyrighted materials in our classroom to apply to the distance education classroom. There was great fear on the part of content owners that digital copies of their works in online classrooms would lead to wide scale piracy. Thus the TEACH Act was born. TEACH is nice, when it works, because it does give us the clarity to know that our use is legal. But it definitely imposes much greater restrictions on the online instructor than are felt by the face-to-face instructor.
Keep in mind, the only part of the law that really differs for the distance classroom vs the face-to-face classroom is the Classroom Use Exception. Online instructors still benefit from fair use and, in many cases, we can make fair uses of materials that would not meet the extensive requirements of the TEACH Act.
"Copyright Law and Distance Education: Overview of the TEACH Act "
This paper by Kenneth Crews (Columbia) is a good primer and overview for educators from one of the leading experts on copyright as it applies in libraries and higher ed.
The rules that govern screening movies vary depending on the context of the screening. These guidelines are provided to help you determine whether or not you need to purchase screening rights for a given showing of a film.
Faculty teaching face-to-face classes are permitted to show films in their classrooms (or similar place devoted to instruction) to students in their class. The showing must be limited to people in the class, not opened up to the rest of campus, in order to qualify for this exception.
If you are showing a film in the classroom, please work with arrange for captioning or audio description when appropriate.
All other screenings are considered public and a license must be in place in order to legally show the film. Failure to obtain a license can result in fines from $750 to $30,000 per showing! Any time a student group or college department shows a movie in any context (whether or not it is advertised to the public) and regardless of audience size, a license must be in place.
Most often, you will need to purchase “public performance rights”. Licensing for popular titles will likely cost between a few hundred and a thousand dollars and can be purchased from major movie distributors such as Swank Motion Pictures, Criterion Pictures, or Motion Picture Licensing Corporation. Independent films may cost less and generally need to be negotiated with the copyright holder. In these cases, the cost could be as little as free and as much as a major motion picture.
Occasionally, films are purchased with public performance rights already granted. The library has some of these titles. This is an unusual case, but in that case, you would not need to purchase additional rights. If you are planning to show a film owned by the WWCC Library, please check in with the library to see if any licensing is already in place.
Finally, in the rarest cases a film may be in the public domain (produced before 1925 or by the Federal government) or be licensed with a Creative Commons license that permits its use. In these cases, you would not need to seek additional licensing.
In the case of streaming services, both copyright laws and the terms of service of the streaming companies will apply. Some Netflix Original documentaries are available for one-time educational screenings as long as you comply with some conditions. Please consult the terms of service for the streaming platform in question, most, at this time, prohibit any public screening.
All advertisements and promotions for public screenings should include an accessibility notice. Please contact Disability Services for support in ensuring an accessible event.