Many faculty augment course textbooks with articles, reference books, study guides, audio examples, videos, and other supplementary resources. Although these materials may be protected by copyright, potentially, they may be used for instruction in an online environment.
The Association of Research Libraries (ARL) provides a chart, “What You Can Do”, that highlights proposed uses of copyrighted materials and whether permission is required.
Online@UT
Canvas software facilitates the creation of sophisticated web-based educational environments. It may be used to create entire online courses or to provide access to materials that supplement existing courses. The Office of Innovative Technologies (OIT) manages Online@UT and can assist faculty in setting up course sites and managing course materials. Access to materials through Online@UT requires a NetID and password.
Course Reserves at the UT Libraries
The UT Libraries’ Course Reserves service provides support for faculty who wish to offer access to course materials in print format or on physical media, i.e., books, your own videos, etc. Staff will consult on questions of fair use relating to course reserves; visit the Course Reserves page for more information.
Digital Media Service
Digital Media Services (DMS), an OIT/UT Libraries collaborative, offers digitization of audio, video, text, and images for faculty. DMS provides links to the digitized materials, and faculty can post these links to their Canvas or other class web pages. Like Course Reserves, access to the materials requires a NetID and password. DMS follows fair use guidelines for multimedia and assists with copyright permissions as necessary.
Distance Education
Distance education classes take place outside the traditional brick and mortar classroom. Learners are typically connected via an online interface that provides the same learning opportunities as on-campus counterparts. However, distance education may also be offered through other means such as teleconferencing, video, or television. These virtual classrooms may require different applications of copyright law. While the Technology, Education, and Copyright Harmonization (TEACH) Act allows some exemptions for copyright, “its rigorous requirements have prompted most instructors to rely primarily on fair use to display or perform works in distance education (e.g., online or over cable TV).” [Association of Research Libraries, www.knowyourcopyrights.org]
Use of Media in Class
Copyright law makes special provision for displaying images, playing motion pictures or sound recordings, or performing works in classes. Section 110 of the Copyright Act allows the performance or display of copyrighted works in the course of face-to-face teaching. Students and faculty may develop and give classroom presentations that use copyrighted audiovisual materials without obtaining permission. As these instructional activities move beyond the classroom, or as we redefine “places of instruction” the situation becomes more complex since the rules for distance education are still evolving.
Media and Distance Education
Uses of multimedia outside the traditional classroom should be analyzed using the four factors of fair use, and it is helpful to use the Fair Use Checklist (Columbia) to make your analysis. Before you pay for use rights, check with your library to explore whether your use rights have been paid for or whether there are alternatives to paying a fee.
Some legal experts believe that classroom presentation of media may also be delivered via the Web to any location if instruction is occurring. Password protection for distribution of multimedia presentations is especially important when using copyrighted materials.
Art slides, music, film clips, photographs and other media may have multiple copyright owners. However, fair use applies in all cases regardless of the medium.
(Based on materials developed by the University of Minnesota University Libraries: https://www.lib.umn.edu/copyright)
General Principles of Fair Use in Education
In seeking to balance the educational needs and research interests of the university community with the interests of copyright owners, the University Libraries stands firmly behind the statutory concept of fair use provided in the U. S. Copyright Act. (17 U.S.C. Section 107).
The library seeks to assure that its user communities understand their responsibilities in complying with copyright law. Appropriate application of fair use in education is dependent on a fundamental knowledge of copyright law. Library users can make good faith fair use judgments only when they understand the statute, and where and when it can be appropriately applied.
To foster knowledgeable and informed fair use assertion the University Libraries adheres to the following general principles for the appropriate application of fair use. These principles illuminate fair use standards and will continue to guide future development of copyright policies within the library.
Principle 1: Fair use is both technology and medium neutral.
The fair use doctrine applies to uses in digital environments and to any copyrighted work without regard to the medium of the original work. It is important to note, however, that fair use will not apply to licensed resources, unless the terms of controlling agreements specifically defer to Section 107 — statutory fair use.
Principle 2: Appropriate fair use assertions depend on a case-by-case examination of the facts surrounding each case, and the four factors identified in Section 107 of the U. S. Copyright Act. To determine whether any particular use is a fair use, consider these factors:
In general, uses for educational purposes at nonprofit institutions weigh in favor of fair use. Considering factor number two, fair use favors the use of works of a factual nature more than the use of creative, artistic works. With respect to amount used, using less than an entire work, and not that portion which might be viewed as the essence of the work, will weigh more in favor of fair use. As for market effect, uses that have no impact on the market value for the original work weigh in favor of fair use.
Principle 3: Responsible and good faith judgments concerning fair use are the result of a knowledgeable and informed teaching community.
University faculty and staff are expected to know and comply with the laws and regulations related to their duties. Faculty and staff who use copyrighted materials are responsible for copyright compliance in their work. The University Libraries offers information and training programs that provide copyright awareness and fair use decision support for faculty and staff.
The University of Tennessee General Counsel Statement on University Employee Protections Against Liability (https://counsel.tennessee.edu/liability/) describes the conditions under which the University will defend and indemnify employees. Subject to that policy, University employees have immunity from liability for acts or omissions within the scope of their employment, unless the acts or omissions are willful, malicious, criminal, or done for personal gain.
Types of state law claims to which this immunity applies include claims for personal injury (including professional malpractice), property loss or damage, and libel and slander (defamation).
Principle 4: There are varied interests in and varied opinions about fair use.
The general concept of fair use, embodied in Section 107, continues to evolve along with copyright law. Familiarity with court decisions concerned with fair use is essential in the rapidly changing technology environment. There is no” bright line” rule for determining fair use, and opinion among reasonable individuals will vary. Exposure to the variety of scholarly opinions about fair use can lead to a broader overall understanding of fair use.
Principle 5: Fair use, as defined in the statute, is determined on a case-by-case basis, with a careful four-factor analysis. While guidelines can inform this analysis, fair use is not limited to the safe harbors they outline.
Attempts to formulate guidelines for fair use in education have not succeeded in generating broad consensus agreement among educators and members of the publishing industry as to what sorts of uses necessarily constitute fair uses. Often guidelines impose restrictions and conditions that are not expressed in Section 107’s language. Though not necessarily determinative, as part of the legislative history surrounding the Copyright Act of 1976, the Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with Respect to Books and Periodicals (H.R. 2223) is informative.
Notes
1 Statement of Policy on Patents, Copyrights, and Other Intellectual Property, Adopted by The University of Tennessee Board of Trustees October 19, 1984; amended June 19, 2003, http://utrf.tennessee.edu/PDF/IP_Policy.PDF.