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Copyright and Fair Use Resources: Classroom FAQs

FAQs Faculty: Teaching Face to Face

1.  What can I show (display or perform) in class?  What is the difference between "displaying" and "performing"?

-As long as the performance or display is part of your teaching activities for that class (i.e., not just for entertainment value), there are basically no limits to what (and how much) you can display or perform. 

-The only limit is that you cannot perform an audio-visual work (movie) that you knew was not lawfully made...generally speaking, "perform" refers to audio-visual works, like movies, and display refers to static works like photos, images, graphs, etc.

2.  What if I need to make a copy of the image, etc., first before I can display it?  For example, it is an image in a book, my class is huge, and I need to scan it into my computer so I can project it.  That is, standing in a large auditorium holding up a book is pretty useless.

Section 110(1) only refers to performances and displays, not reproductions.  There are several options:

•  If the work is already on the internet and your classroom has internet capabilities, you can show the work by accessing it on the web.

•  If not, your best option is to consider whether this single reproduction is a viable fair use. If, for some reason, you do not think your reproduction is a fair use, you need to ask for permission.

3.  The movie that I usually show in my classroom is wearing out.  I cannot find another copy of it anywhere and I have even tried to find whoever put out the movie without success.  Can I digitize the movie for preservation purposes?

There are primarily two options (other than throwing the movie away)

•  Do a fair use analysis (you have a reasonable shot here since there is not market to affect)

•  Donate your copy to the library.  There are special provisions that would allow the library to do what you would like to do.

4. I own several films and would like to show clips from each of them in my class.  May I?  If so, I would like to copy the clips onto a single dvd for ease of presentation.  May I?

Since you can show an entire movie in class, you can clearly show clips from the movie.  However, putting the clips on a single dvd involves copying which would again trigger a fair use analysis. (you'll notice that there is a lot of reference to the doctrine of fair use in the faqs in general.  Fair use is a foundational balance in the copyright system without which it would be impossible to realize the Constitutional purpose of promoting science and the useful arts.) There is also a second issue involved if you must circumvent a technological protection measure because this is disallowed under the DMCA (Digital Millennium Copyright Act).  This is likely one of those situations where the technology available doesn't comport with the law.  Most computers contain the lawful, licensed software to play the movie (so there's no hacking involved) and they can also make copies.  Given such a conundrum, I think it's reasonable to fall back on the Constitutional purpose of copyright - promoting the progress of science and the useful arts. 

5. Can I show a movie in class that I rented from Blockbuster?[or other movie rental locations]

Yes, unless you signed an agreement that says you won't show it anywhere but your home.  The Copyright Act only requires that the work be "lawfully made."

6. What kinds of works can I incorporate into a powerpoint presentation?  Charts, photos, graphics, cartoons, sounds?

If these works do not originate with you, you will have to rely on your fair use analysis in order to use them.  Keep in mind that your use of these works may differ significantly from their original purpose, enhancing the likelihood that your use is a transformative use.

7. Can I show student works?

Yes, but you should remove their names unless you have their permission.

8. Can I put student work on print reserves?

Yes, with same caveat.

9. Can I pass out slide handouts from my powerpoint to the class for them to take notes on?

Again, this is a situation that is likely to fall under fair use.  Recommend that you do the fair use analysis but chances are good that it is a fair use.

Excerpted from 2012 Copyright Administration, NC State University http://www.provost.ncsu.edu/copyright/faqs/FacultyTeachingFAQsClassroom.php 

FAQs Faculty: Teaching Online

Excerpted from http://www.knowyourcopyrights.org/resourcesfac/faq/online.shtml 2007 ARL: Know Your Copyrights: Part II: Uses in the Online Classroom / Course Management System by Peggy Hoon

1. How do I know if the work I want to use is copyrighted?

Copyright protection arises automatically the moment an original work is fixed in a tangible medium of expression. It does not need to be registered, published, or have a copyright notice on it. Copyright has expired for works published in the US before 1923 and, therefore, they are in the public domain. For other works that may have entered the public domain, see Copyright Term and the Public Domain in the United States https://copyright.cornell.edu/resources/publicdomain.cfm.

Another exception is works produced by US government employees as part of their job; these are not copyrighted, neither is government information.

The safe bet or default assumption is that everything you are likely to use is copyrighted, unless it’s really old or produced by the US government.

Of course, this does not automatically mean that you need permission to use it in some way for teaching. See the rest of this document for an explanation of teaching uses allowed by the law.

Also, providing a URL or linking to a work is always an option. The copyright law never precludes you from linking to a copyrighted work on a legitimate Web site.

a. What if I got the work from a Web site that

  • didn’t say anything about copyright?

  • didn’t have a copyright notice?

  • said everything on it was public domain?

  • said I could use it for teaching?

Web sites vary wildly in terms of quality, authenticity, validity, and accountability. Works residing on a site that is silent on copyright should be presumed to be copyrighted (with the exception of US Government Web sites). For works on sites claiming to be in the public domain, you will have to judge whether or not these claims are trustworthy, keeping in mind that such claims will not protect you should a copyright holder object to your use. Similar assessments will need to be made about sites purporting to give permission to use. Only the real copyright holder, or those authorized by him or her, can give permission. Do you believe the entity giving you permission fits one of these categories?

Fair use is the only copyright provision that allows you to make a copy to display or distribute a copyrighted work that you find on Web sites. In order to lawfully make use of such works, without obtaining the permission of the copyright holder, you must decide whether your use is a fair use or direct students to a link to the work.

b. What if I created the work?

Unless you wrote the work under contract as a work for hire, you are the author and the initial copyright holder. If, however, you have transferred your copyright to another entity (in writing), without retaining any use rights for yourself, you are no longer the copyright holder and have no special privileges to use the work.

To keep your copyrights, the next time a publisher’s agreement proposes transferring exclusive rights from you to them as a condition of accepting the item for publication, consider retaining the rights you need to place your own work in an open archive and sharing it with your students. The SPARC Author Addendum http://www.arl.org/sparc/author/ is one means of securing these rights.

c. What if a student created the work?

Students hold the copyright to the works they create, such as their papers, projects, theses, and dissertations. If you wish to use their work, absent any relevant university policy, you will have to treat it like any other copyrighted work.

2. What is the setting for the class where I want to display or hand out a copy of the work—in person or online?

The law allows different uses in different settings.

  • If the setting is to be an online course or course management system, continue reading this Part II of the document.

  • If the use is in a face-to-face classroom, refer back to Part I.

  • If your class uses a combination of both settings, review both Parts I and II of this document and consider which setting offers the best opportunities for the use you have in mind.

3. Many copyrighted works are accessed through a campus license that can override copyright. How do I know if the work I want to use is covered by such a license?

Asking and answering this question is just as important in the online world as it was in the traditional classroom setting, particularly since licenses may prohibit reposting of materials.

You are most likely to encounter licensed works via your campus library’s electronic journals and databases. Libraries vigorously negotiate licenses for such materials and are usually successful in getting the rights you need to use the works in your teaching. However, if you have a specific concern, contact your library.

You may also encounter works governed by licenses that specifically grant or affirm rights to use them such as those employing the Creative Commons model. Using a Creative Commons notice, creators specify the rights conveyed to users such as to copy, distribute, display, and perform the work, provided attribution is given. Watch for this logo:

Creative Commons Some Rights Reserved
 

You can learn more about Creative Commons at http://creativecommons.org/.

You can link to the material from your online class unless specifically prohibited by the license. Commonly a publisher’s or aggregator’s license with a research library will allow faculty and students to share it with other authorized users covered by the license. In an online class, your students will be “authorized users” however your class Web site should not become a portal for the rest of the world to access your library’s licensed resources. You can avoid this by restricting access to your class Web site to the students enrolled.

4. The work I want to use in my online class is both copyrighted and free of any license. Are there any specific provisions of the copyright law that apply to online classroom use?

Yes, Section 110(2) of the copyright law (otherwise known as the “TEACH Act”) specifically applies to displaying images, playing motion pictures or sound recordings, or performing works in your online class. Since this section applies to any “transmissions” of performances or displays, cable television classes would also be included here.

There are a number of institutional and faculty member obligations that must be fulfilled in order to use the TEACH Act. Consult your library or university counsel on whether and how the TEACH Act is implemented locally. If your university cannot or does not wish to comply with TEACH Act obligations, consider whether what you have in mind for your online course is a fair use.

If you wish to explore the TEACH Act option, read on for a description of a faculty member’s obligations.

Generally, to perform or display a work in your online class the work must be

  • used under your supervision
  • as part of the class session
  • as part of systematic mediated instructional activities (see 4. j. )
  • directly and materially related to the teaching content

The work must be lawfully made and not excerpted from a product that was specifically designed and marketed for use in an online course.

Furthermore, there are three additional requirements:

  • You must password protect or otherwise restrict access to your online class Web site to enrolled students, and
  • You must reasonably prevent your students from being able to save or print the work, i.e., control the “downstream” uses, and
  • You must include a general copyright warning on your class Web site.

If the above circumstances and requirements are met:

a. Can I show part or all of a copyrighted movie?

  • Using my own copy?

  • Using the library’s copy?

  • Using a copy I rented from a store?

  • Using a copy I taped from TV?

Can I digitize a VHS movie?

Can I make a DVD of all the clips I use and distribute it to the class?

In order to fit within the 110(2) provision, you can use a “reasonable” portion of a movie or a piece of music. (Note: this differs from the face-to-face classroom where you may play the entire work.) The currently acceptable “downstream” control is to use streaming technology. The copy you excerpt from must be lawfully made and not specifically designed and marketed for online courses. Under 110(2), you may digitize the reasonable portions you intend to use from a VHS or other non-digital format, as long as there is no digital version available to the institution or the available digital version is encrypted.

Section 110(2) would not permit you to make a DVD of your online clips to provide your students with their personal copy because you cannot control the uses made after the class session. You should consider whether this would be permitted as a fair use.

b. Can I display a copyrighted picture, image, graph, or chart in my online class?

Yes, as long as it is a work you would have shown in a face-to-face classroom setting and you comply with the other general 110(2) requirements listed above. This provision is very helpful to classes that use large numbers of images, such as art history. The challenge lies in controlling the downstream uses of the material, e.g., preventing your students from saving or printing the works.

c. Can I post journal articles or book chapters?

Because you can only post online the amount you would display in a traditional class, Section 110(2) does not authorize posting journal articles, book chapters, and other large chunks of text that you wouldn’t have shown in class. For this type and amount of material, you should consider linking, fair use, or permissions.

If the text is something you would have displayed in a face-to-face traditional class setting, such as a poem or newspaper clipping, you may digitize and post it on your class Web site. Again, you can digitize a printed or other non-digital work as long as a digital version is unavailable or encrypted. Keep in mind that you are not required to use Section 110(2)—linking, fair use, and permissions are always an option.

d. Can I use the works more than one semester?

Yes.

e. Can I display newspaper articles?

Yes, if you would have displayed the article in a traditional class, perhaps for class discussion. If you only want the students to read the article outside of class and be prepared to discuss it in class, Section 110(2) would not apply. You might consider linking, fair use, or permissions.

f. Can the materials stay up throughout the entire course?

Yes.

g. Is there a limit to how many times materials can be viewed or played during the course?

No.

h. Can students or teaching assistants post materials on the class site or only the professor?

Yes, students and teaching assistants may also post.

i. What if I want my students to be able to print everything on the course Web site?

Many professors are unhappy with the downstream control requirements because they want their student to be able to print materials from the course Web site. If this is the case, Section 110(2) becomes inapplicable and you must fall back on linking, fair use, or permissions.

j. What are mediated instructional activities (as defined in section 110(2), the TEACH Act)?

Mediated instructional activities are activities that use such [permitted] works

  • as an integral part of the class experience
  • under the control or actual supervision of the instructor
  • in a manner analogous to performances and displays in live classroom settings.

According to the Senate Report accompanying the TEACH Act, such activities must use the works as part of the course rather than ancillary to it. Thus the TEACH provision would not cover “student use of supplemental or research materials in digital form, such as electronic coursepacks, e-reserves, and digital library resources.”

For additional help with applying Section 110(2), the TEACH Act, see the Resources and Best Practices tabs of this guide.

5. What is fair use and when would I need to rely on it for my online classroom uses?

The fair use provision of the copyright act (section 107) is always potentially available as an option, even if another specific provision applies. What is it?

Fair use allows limited use of copyrighted material without requiring prior permission from the copyright holder. The statute lists four factors to be weighed when analyzing the proposed use in order to determine whether it is a fair one. Consideration of all factors is required although all factors do not have to be in favor of a use to make it a fair one.

A fair use analysis is necessarily a fact-driven one. Each unique set of facts regarding a proposed use leads to its own reasoned conclusion. Reasonable individuals may come to different decisions concerning the same set of facts, but the operative word is “reasonable.”

The four fair use factors are as follows:

  1. The purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes;
  2. The nature of the copyrighted work;
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. The effect of the use upon the potential market for or value of the copyrighted work.

For assistance in analyzing these factors relative to your proposed use, see the Fair Use resources under the Resources tab on this guide.

In online classroom setting, you will usually need to consider fair use when you do not qualify for Section 110(2) and when linking is not an option.

6. Suppose I decided to ask for permission anyway?

If you wish to pursue permission for your use, you will need to identify and locate the copyright holder, a task often easier said than done.  Allow yourself plenty of time and patience. Contact the NSU OIT Copyright Clearance Office- go to the Resources tab on this guide for more information. See below if you can’t reach a copyright holder.

a. What if they say no but now I believe fair use or a specific provision of the copyright law applies? Am I disadvantaged because I asked?

Previous payment of a fee or even outright denial of permission does not preclude you from exercising your rights under the Copyright Act. You can still employ an appropriate specific provision or the fair use provision and there is no presumption against you for having asked permission.

b. What if they don’t respond?

Lack of response does not translate into a passive grant of permission to use. If your proposed use exceeds all provisions of the law, including fair use, you probably need to direct your students to a link to the work, find another work to use, or modify your proposed use to fit within fair use.

c. What if the work is out of print? Is that the same as out of copyright?

“Out of print” is not the same as “out of copyright.” An out of print work may still be protected by copyright and should be approached the same as a work still in print.

d. What if I can’t find current contact information for the copyright holder? For example the publisher is out of business or the author is deceased.

These situations present the problem of a work whose copyright holder cannot be located, despite reasonable efforts. The US Copyright Office has recognized this problem, calling such works “orphan works.” Much work is currently being done to create an exemption in the law that would encourage uses of such works by mitigating the liability risk.

At the present time, however, educators and libraries must make individual decisions concerning their use of such works, including evaluating the risk of liability. Those who proceed with their use should document and preserve their efforts to locate the copyright holder.


© 2007 Peggy Hoon
This is an open-access article distributed under the terms of the Creative Commons Attribution-NonCommercial 2.5 license http://creativecommons.org/licenses/by-nc/2.5/.

"Using Copyrighted Works in Your Teaching—FAQ: Questions Faculty and Teaching Assistants Need to Ask Themselves Frequently," by Peggy Hoon, JD (Washington DC: Association of Research Libraries, 2007)