This section examines the application of copyright law in both the face-to face and online classroom and includes discussions of fair use, creating instructional materials,and the use of film and video in a classroom. In addition, it includes an acknowledgement about MOOC production.
Fair use offers an extraordinarily important opportunity for faculty to make reasonable and limited uses of copyrighted materials. Clipping, cutting, pasting, uploading, posting, and many other activities that are common at the university may be copyright infringements or may be within fair use. When do you need to think about fair use? Some example situations:
A fair use analysis is necessary to determine if your use is a fair one. A full discussion of the four factors under fair use and the use of the Fair Use Checklist is found under the Fair Use Tab of this site.
A Note on Massive Open Online Courses
Massive Open Online Courses (MOOCs) require careful attention. The reproduction and distribution of material within the global and open nature of a MOOC poses unique copyright challenges. For this reason, faculty are encouraged strongly to seek out the guidance and advice of the Library and Educational Technology on this campus.
The TEACH Act, section 110(2) of the U.S. CopyrightAct is a copyright exemption that covers teaching conducted through digital transmission; it addresses performance and display of copyrighted materials used in teaching. Even if your class has on ground, face to face sessions, anything you transmit through a course delivery system, such as Blackboard or Canvas, would fall under the TEACH Act, unless you choose to use Fair Use as an alternative exemption. The TEACH Act is not a wild card exemption to do anything you want; it comes with limitations.
Teachers have more privileges in face-to-face teaching situations for the use of copyrighted materials than in online instruction. The TEACH Act attempts to bring the two environments closer together, but the playing fields are still not level. The TEACH Act does not cover the use of textual materials such as readings.
Provisions of the Act
The Act allows teachers to show the full performance of a nondramatic literary or musical work or display the following types of materials:
Teachers may only display "reasonable and limited portions" of dramatic works. Use only the portions that are necessary to make a point. (Teachers in face to face classrooms may use the following works in their entirety):
Teachers may not transmit or display instructional materials, without permission or licensing, which students are commonly expected to purchase such as:
Works "produced or marketed primarily for performance or display as part of mediated instructional activities transmitted via digital networks" should not be copied, but purchased and used as intended by the publisher.
Obligations of the Instructor
(2nd example from NCSU)
Obligations of the Institution
Using a course website or a university-supported Course Management System (CMS), such as Blackboard or Canvas, to make instructional materials available to students can raise many copyright issues. These systems can be used to provide a wide range of materials, from articles and book chapters to sound recordings and visual images. However, such materials may be posted and shared only in a manner consistent with copyright law, which gives legal protection to nearly all text, images, audiovisual recordings, and other materials, whether available on the Internet or in any other medium.
Instructional materials may be posted to a CMS or a course website under any of the following circumstances, as detailed more fully on this page.
Showing or “performing” a motion picture at the university can be important for teaching and other university activities, but the performance must be made in compliance with copyright law. One of the rights of the copyright owner in the film is the right to make a “public performance” of it. Therefore, the performance of a copyrighted film must be made only with permission from the copyright owner or consistent with one of the exceptions or limitations in the copyright law.
As outlined below, the law does provide many opportunities for showing films at the university, but one usually must begin with the following assumptions:
Nevertheless, copyright law includes several possibilities for properly showing copyrighted audiovisual works. (Note: This discussion is only about the “performance” of the work. Making a copy of all or part of the work must be addressed separately.)
Allowed: Performing a work privately, and not publicly
A performance may not be “public” if the place is closed to the public, and the audience is not a “substantial” number of persons. Therefore:
Allowed: Performing a work in the course of teaching activities of a nonprofit educational institution
Copyright law includes a code section specifically permitting performances of works by nonprofit educational institutions. A performance may fit within the exception if:
The performance is in a classroom or similar location for instruction (Note: this exception applies only in the face-to-face setting and not to a broadcast, transmission, or online display).
The performance is part of a teaching activity, although it does not have to be part of a regular course. Therefore, an instructor may host a related discussion forum or arrange for a student or instructor to lead an educational program related to the film.
These rules are specified in Section 110(1) of the U.S. Copyright Act, but a separate statute provides for performing a work through any “transmission” to students, such as through distance education or from a university server. That statute, known as the “TEACH Act” and codified at Section 110(2) of the U.S. Copyright Act, may be used only by complying with numerous conditions and requirements. Consult the Library for additional information.
Allowed: Performing a work with permission from the copyright owner
The creator of the work is typically the copyright owner or other rightsholder. In the case of motion pictures, movie studios usually hold rights in the works they create or distribute.
Allowed: Performing a work that is in the public domain
Copyright protection does not last forever, and when the copyright has expired, the work may be used without copyright restriction. For example, any work published in the U.S. before 1923 is in the public domain and may be used freely.
For more information about copyright duration and the public domain, please see the Public Domain Tab.
The Internet Archive and other organizations facilitate finding and using many films and other works that are in the public domain.
Allowed: Performing a work created by the U.S. government
Works created by the federal government are not protected by copyright and are in the public domain. However, works commissioned by the federal government may have copyright protection. Also, works produced by state, local, or foreign governments may have copyright protection. Federal government works in the public domain could include many military films and NASA space exploration footage.
Allowed: Performing a work within the limits of fair use
The law of fair use provides an exception to the exclusive rights of the copyright owner. For more information concerning the law of fair use, please see Fair Use under the Copyright Basics Tab. In most situations, fair use requires careful application and judgment calls; consequently, the other opportunities outlined above are usually preferable to undertaking an analysis of fair use.