Copyright and Fair Use

The Education Exception

Specific guidelines related to Reproduction of Copyrighted Works by Educators and Librarians have been hammered out in Congress and are published in Circular 21 by the United States Copyright Office. This publication covers instructor-only copies as well as multiple copies made for students, but NOT course packs. Pages 6-8 spell out what is permissible and outline specific prohibitions. The Stanford University Libraries Educational Uses of Non-coursepack Materials elaborates on this information in very helpful ways.

In general, providing multiple copies for classroom use must meet three criteria:

• Brevity - the amount copied should not exceed reasonable amounts -- reasonable amounts delineated in the Circular p. 6
• Spontaneity - the use is not one that could have been handled through a pre-planned course pack -- particular defining characteristics, Circular p. 6
• Cumulative effect - the total amount of copying allowed in relation to both the works AND the course as a whole -- spelled out in Circular p. 7

In addition, several specific prohibitions to copying are defined -- Circular p. 7. Allowances and prohibitions relating to the use of music are also outlined -- Circular p. 7-8. 

Audiovisual Use

Non-profit education also enjoys a special exception in copyright law (17 U.S.C. Section 110), granting greater allowance for audiovisual use than commercial enterprises have. But there are things that are important to remember:

• The exception relates specifically to audiovisual works -- thus it covers showing students audiovisual materials or projecting an image of a page of text. 
• The exemption applies to face-to-face classes only. Online course uses have to rely on the provisions of the TEACH act (see below) and Fair Use protections
• The use must take place in "a classroom or similar place devoted to instruction" and must not have commercial elements.
• Use must be explicitly connected to coursework. If you are showing a video in your classes, are students required to analyze the material, complete assignments using it, or tested on it? If you show something to entertain or occupy students without an explicit connection to coursework, you personally and the institution are in violation of copyright.These activities require a public performance license.
• The original work must be a lawful copy. Not just lawfully obtained, but lawfully made.

If a use does not meet these requirements, you probably need Public Performance Rights.

 The TEACH Act

The Technology, Education, and Copyright Harmonization (TEACH) Act, passed in 2002, updated the audiovisual exemption (Sec. 110(2)) to address the needs off online courses or face-to-face classes that include an online component. It does NOT cover providing textual materials for these types of courses. There are a significant number of stipulations that material must meet in order for an instructor to use the TEACH Act as a justification for use. 

Any use claiming the TEACH Act must:

• Be connected with a non-profit, educational institution
• The performance (or display) must be restricted to students of the institution and the class AND mediated by the instructor
• The performance (or display) must relate to a specific instructional activity and be "integral" to the session
• Resources transmitted must be lawfully  obtained copies
• Technological measures must be in place to limit the ability of students to retain and distribute copies of the material (such as restricting them to within a Blackboard shell).
• Technological measures to prevent duplication on the original cannot be tampered with (no matter how readily these may be broken). This prohibits extracting segments of DVDs, etc. that have this protection.
• The copyrighted material MAY NOT have been specifically created for use in distance learning. 
• Materials must be limited so as to be accessible for a specific time period only, preferably for a single course session. While materials may be used in the course from semester to semester, their availability within a specific semester should be restricted. This same restriction applies to the display of graphic images or "display" of text.

These are a lot of restrictions! Do I have other options?

Yes, you can link to a resource or clip rather than including it, but link to a legal source! Depending upon the material, one solution is to link to YouTube Premium or Amazon where students can pay a relatively small fee to watch many full-length films. The library also provides streaming access to Alexander Street Videos in many subject areas -- these are already licensed for course use. Similarly, many of our databases provide various video clips that you can incorporate into classes. 

Or you can make a Fair Use assessment. 

If a use does not meet these requirements or qualify as Fair Use, you probably need Public Performance Rights.