The following is a guest post by David Welkowitz, attorney-advisor in the Office of the General Counsel.
As the spread of COVID-19 causes schools—particularly colleges and universities—to switch to distance education, it is a good time to review an important part of the educational landscape: copyright. Don’t let the word copyright alarm you; copyright law actually has tools specifically intended for distance learning, along with other tools such as fair use. As a former teacher of copyright law for many years, I feel obliged to at least mention the basics of how copyright affects distance learning. I’m focusing on colleges and universities, but this discussion is applicable to any level of educational institution.
As most teachers probably know, copyright law covers many of the things teachers use to educate students, from textbooks to music to artwork, plays, and movies. That doesn’t mean you always need permission to use these works—there are limits. Fair use is a big one. But fair use, while flexible, is not always easy to determine in advance. So how can you teach your students without running afoul of copyright?
Within the classroom, there is a pretty broad exception for using copyrighted materials (not quite everything goes, but broad). It applies to “face-to-face teaching activities”—those that happen in the actual classroom. Can we use this same exception for online classes? In a word, no. But, there is another exception, called the TEACH Act (sections 110(2) and 112(f)], designed specifically to deal with online distance learning. Because the digital environment poses unique challenges for copyright, particularly the ease with which digital material can be copied and distributed, the law imposes a number of requirements on distance learning that do not apply to face-to-face teaching. I’ll discuss a few here.
First, and very important, to qualify for this special exception under the TEACH Act, the work you are performing or displaying (for example, a video clip, a song, or a photograph) must be one that was “lawfully made and acquired.” So make sure you have a legitimate copy—don’t just copy works off the internet, because although some things may be in the public domain or available under certain kinds of licenses, others require permission before you use them.
Second, there is a limitation on how much of the material you can use. The online exception is more limited than the one for face-to-face teaching. You can perform as much as you want of a “nondramatic literary or musical work” (poems and songs are OK, but not plays or operas!), “or reasonable and limited portions of any other work” with the amount being what would be “typically displayed in the course of a live classroom session.” So, although you might show a whole movie over several days in a classroom, the law assumes only a fairly short portion of a movie (or play). The same would be true of a sound recording—use only what you need to teach the particular class.
The “limited portion” language does not apply to the display of works, only to the performance. So you can show a slide of a building or a painting as long as it is the kind of thing you would normally show in class. You can even display a short poem if it is something you would display in class. But displaying large portions of the textbook online is not what was intended since you would not normally do that in class.
The use must be at the direction of, or under the supervision of, the instructor “as an integral part of a class session offered as a regular part” of the institution’s “mediated instructional activities.” (It doesn’t prevent student performances as part of the class, as long as they are at the direction and supervision of the instructor.) The general intent of the law here is to make sure that the use is for a particular class, not as, for instance, background or supplementary material. And it must be part of the regular instructional activities of the school, not a side hustle. To emphasize this, the statute goes on to say that the use must be “directly related and of material assistance to the teaching content” of the online class. So it must be related to the particular class, and it must be important to the content of the class. Playing music just to entertain the class would not qualify.
Third, there are several requirements to make sure that the exception is not misused to distribute unauthorized copies of copyrighted material. The school must, to the extent “technologically feasible,” limit the reception of the online information to students enrolled in the course (using things like passwords or other identification procedures). The school must have copyright policies; distribute those policies to faculty, staff, and students; and notify students that material used in the course “may be subject to copyright protection.” The school must use reasonable technological measures to prevent students from keeping the material beyond the class session (no downloading to the students’ hard drives) or from disseminating the material to other people. So not all massive open online courses (MOOCs) fit the exception very well. And the school must not do anything that would likely circumvent any anti-piracy protection surrounding the works in question (so no breaking copy protection in order to show the work to the class).
There are some other requirements that are fairly technical, but you get the idea—the school must try and make sure what you use in an online course isn’t kept by the students or distributed outside of the students in the course.
It is also important to understand that, although the law puts the allowable activities in the context of a digital version of a regular class, it does not require that the instruction take place in real time; “asynchronous” classes (where the instructor uploads material that is accessed at different times by different students) are also permitted.
One more thing—you cannot use this exception for distributing things like textbooks, course packs, or sound recordings that the students would ordinarily purchase on their own (or that the school would normally purchase for students, which is particularly relevant to K–12 schools).
That’s a mouthful, but, fortunately, many universities have websites where these issues are discussed. There are checklists for instructors so that they can ensure that they are following the law. You should check your institution’s website for that information or ask your school’s librarian. Finally, remember that you can still rely on fair use. If you are making fair use of the copyrighted work, then the restrictions I’ve discussed do not apply. For instance, in a drama class, it may be fair use to perform more than “a limited portion” of a play. In that case, the limit of the special exception would not prevent the fair use of a larger amount in the online class. But it must be fair use under the law, not just what you think is fair. The law is, after all, the law.