Teaching Online Traps for the Unwary – How to Use Copyrighted Material Safely
With most K-12 schools moving to exclusively online educational programming necessitated by shelter-in-place and other limitations imposed due to the COVID-19 pandemic, teachers want to know if, when, and how they can use third-party copyrighted materials to continue educating their students. Also, educators want to know whether the rights to use third-party materials in online programs mirror the rights existing in the in-person classroom contexts or if additional precautions must be taken.
Answering the use question “correctly” is important for educators using third-party materials. A plaintiff rights-holder in a civil copyright infringement action can assert claims for damages and lost profits or, in the alternative, statutory damages (if there is a copyrighted registration issued before the violation). Statutory damages can range from $750 to $30,000 per violation or, in cases of willful violations, up to $150,000. Statutory damages are designed to provide monetary relief where there are no readily ascertainable actual damages or lost profits. See, 17 U.S.C. § 501, et seq.
The answer to what a teacher or other educator can do with third-party materials begins with an understanding of the exclusive rights of the copyright holder, including the right to copy, distribute, perform, display and create derivative works. 17 U.S.C. § 106. Copying, displaying, performing, distributing, or creating derivative works of a third party's copyrighted materials is infringing unless such use is subject to an exception. There are four key exceptions: (i) works in the public domain; (ii) works subject to permissions/licenses; (iii) fair use (as embodied in 17 U.S.C. § 107); and, (iv) 17 U.S.C § 110 (including the TEACH Act). These exceptions to the copyright holder’s exclusive rights are addressed below.
The first question is whether there is any copyright associated with the materials sought to be used or whether the materials are in the public domain. Anyone is free to use materials in the public domain. The following are materials in the public domain:
- Materials that are not copyrightable generally or have insufficient creativity to support copyright (but keep in mind, copyright supports very thin levels of creativity);
- Materials that have been affirmatively dedicated to the public domain;
- Materials that were subject to copyright, but where the copyright has expired;
- Materials created by the U.S. Government.
Some materials carry free or open licenses, such as Creative Commons Licenses. Be careful, though: materials governed by those licenses are not in the public domain. While such materials may be used without royalty, they remain subject to the various license terms. For more on Creative Commons Licenses and the public domain generally, see here. Note, that on March 23, 2020, the Supreme Court held that states are immune from copyright suits under the 11th Amendment. Allen v. Cooper, 2020 WL 1325815. Generally, political subdivisions that are local in character and that do not depend on the state to satisfy any judgment from its treasury will be open to suit. Many school districts are likely to fall into that category. See, Bonillas v. Harlandale Independent School District, 832 F.Supp.2d 729 (W.D. Tex. 2011) (holding independent school district not subject to 11th Amendment protection).
If the material sought to be used is subject to copyright, one can attempt to get permission from the copyright holder, often given in the form of a formal license. The license will outline the terms and conditions of the grant, which must be adhered to avoid an infringement claim.
To accommodate educators’ desire to have online readings for their students, several publishers have generously altered their policies to allow for this. The School Library Journal maintains a list of the applicable publishers and their communications outlining the modified policy terms. Depending on the publisher, these terms may require appropriate attribution/credit, use of a closed platform allowing for limited attendees, deletion of the video by a date certain, notification to the publisher of the book being performed, and a link to the platform on which the performance is to occur. While the applicable permissions/licenses control, other good practices include:
- Make any recordings on a specific platform (i.e. YouTube) in a way that mirrors, as much as possible, a live schoolroom setting;
- Keep videos confined to a by-invitation group only;
- Include a warning about downloading before reading material from a third party; and,
- Cycle through what readings are available online every few days (if you leave the recordings available for any amount of time, particularly if not confined to a private group, your use is more likely to be challenged).
Where limited portions of a work are sought to be used, educators could consider the fair use exception.
The purpose of copyright protection is to “promote the progress of Science and useful Arts.” U.S. Const. art 1, § 8 cl. 8. Copyright law gives the creator control over certain uses of the creative work and thereby incentivizes creation. At the same time, allowing people the freedom to comment and criticize through the use of copyrighted works (such as through educational settings) also promotes the purpose of copyright and therefore suggests that in certain cases, people ought to have the right to make use of the very rights that copyright protects (e.g., the right to copy, distribute, display, etc.). This framework gives rise to the fair use affirmative defense. The fair use doctrine is found in 17 U.S.C. § 107. The preamble to that section identifies examples of fields that are appropriate for fair use: criticism, comment, news reporting, teaching, scholarship, and research.
The questions are always, “how much of the work can I use?” “Can I even use the work?” “Am I using too much?” These questions and the analysis are the same, whether teaching in-person or online. Factors relevant to a fair use analysis include these: (1) the purpose and character of the use, including whether such use is commercial or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used with the copyrighted work as a whole; and, (4) the effect of the use upon the potential market for or value of the copyrighted work. While non-exhaustive, these four factors provide the baseline list for most copyright cases in which fair use is analyzed. No factor is presumptively dispositive, and the factors should be weighed on a case-by-case basis. Campbell v. Acuff-Rose Music, 510 U.S. at 569 (1994).
For most first and secondary teachers, using third party materials – whether in the physical classroom or online – will fall within an appropriate fair use field when the purpose is educating students on the class curriculum or as stated in the standards promulgated by the state’s education agency. But, fair use still involves a fact-intensive inquiry. One key question is whether the use involves only that portion of the material that is necessary and sufficient to achieve the educational objective. Guidelines and rules of thumb have been developed by university librarians and others to help educational institutions make fair use determinations. Educators struggling with fair use determinations may find it helpful to use these guidelines in making their determination – keeping in mind that “fair use” is a highly elastic concept and difficult to pin down in the best of circumstances.
17 U.S.C. § 110 – and the TEACH Act of 2002
Congress provided educators an additional exemption from the copyright laws in the context of instructional settings, both in-person and distance learning. The rights that are core to an instructional setting, whether in class or online, are the display and performance rights. Section 110(1) and (2) of the Copyright Act are generally limited to these rights.
“To ‘display’ a work means to show a copy of it, either directly or through a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially.” “To ‘perform’ a work means to recite, render, play, dance, or act it, either directly or through any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.” 17 U.S.C. § 101.
In addition to having the fair use “defense” available in instructional settings (depending on the contemplated uses), educators using third-party materials in such a context can take advantage of Section 110. Section 110(1) deals with in-person settings and allows teachers and students to display or perform any work in that context (excluding audio-visual works that the school has reason to believe were not lawfully made). Other uses of exclusive rights would be measured (if not licensed) by the fair use standard.
Original Section 110(2) was amended in 2002 by the TEACH Act to meet perceived opportunities and risks associated with online education. This provision, as amended, applies to government bodies and accredited nonprofit educational institutions. It makes clear that it applies to e-learning settings analogous to a typical classroom, which the statute refers to “mediated instructional activities.”
The statute permits a teacher to perform (i) a nondramatic literary (i.e., works not consisting of dialogue) or musical work and (ii) reasonable and limited portions of any other work (excluding works that the school has reason to believe were not lawfully made or acquired). It also permits the display of a work “in an amount comparable to that which is typically displayed in the course of a live classroom session. . . .” Note that the display right does not invoke the “limited portions” standard, because it may be reasonable in some cases (such as of a poem) to display the whole work. The exemption for performance and display excludes works created and produced primarily for mediated instructional activities transmitted via digital networks (i.e., works that are created and marketed for the e-learning education market). Lifting the restrictions of the Copyright Act for such works would undermine the commercial incentives to create them and potentially gut the very market that such works are designed to serve.
For similar reasons, the rights granted under the exemption do not extend to textbooks, course packs or other such materials “typically purchased or acquired for elementary and secondary students for their possession and independent use.” 17 U.S.C. § 110. The concept of "mediated instructional activities" is “meant to limit the exemption to the kinds of materials an instructor would incorporate into his/her class instruction." As guidance from one library explains, “the TEACH Act covers works an instructor would show or play during class such as movie or music clips, images of artworks in an art history class, or a poetry reading. It does not cover materials an instructor may want students to study, read, listen to or watch on their own time outside of class. Instructors will have to rely on other rights to post those materials, such as the fair use statute, or get permission.”
While Section 110 is generally limited to performance and display, The TEACH Act provides that a work can be reproduced to the extent necessary to perform or display it (e.g., for purposes of loading it on a platform necessary for these purposes 17 U.S.C. § 112(f)).
The permissions of the TEACH Act (Section 110(2) are subject to compliance with a host of other conditions designed to ensure use in accordance with the purpose of the exemption and protection of the third-party materials from unauthorized use. These provisions include the following:
- The materials are used under the supervision of an instructor;
- The materials are performed or displayed as part of mediated instructional activities;
- Access to the display and performance are technically limited to students in the class;
- Technical measures are in place to ensure delivery to those enrolled in the course and prevent retention beyond the classroom session or further dissemination of the work;
- The institution does not engage in any conduct that would interfere with the efforts of the copyright holder to limit such retention or dissemination; and,
- Policies exist regarding copyright with informational materials promoting compliance.
Educators need to be mindful of copyright issues when considering the use of materials created by third parties. If you wish to use such materials, ask the following questions:
- Are the materials in the public domain?
- If not, do I have a license or can I get one? Are any of the works I wish to use currently subject to special permission?
- If there is no license, do I have a legitimate claim to fair use?
- Am I using the materials in an instructional setting that makes me eligible for certain performance and display exemptions?
Schools should take this opportunity to caution their educators on what they should and should not do in offering online education. Copyright infringement cases are expensive. If in doubt, Clark Hill attorneys are available to provide guidance on the education of students with creative works without breaking the bank.