What are the copyright issues involved in using someone else's copyrighted materials in online teaching? First of all, "online teaching" is intended to refer to courses that are presented entirely online as well as courses that have both a face-to-face setting and an online component. For our purposes in examining copyright issues, the course does not have to be designated or identified as a "distance education" course (the Copyright Act never uses the term) or be offered only remotely; the online course simply has to be transmitting performances and/or displays of 3rd party copyright material. Additionally, the discussion and options offered here assume that the online course is part of the educational activities of a nonprofit educational institution.
Educational uses are favored under the Copyright Act since they directly support copyright's Constitutional purpose of promoting progress of science and the useful arts. Because of this, Congress has crafted a number of exceptions to the copyright holder's exclusive rights that allow such uses without the need for permission from the copyright holder.
Unlike traditional classroom teaching, there really are not any short answers for online teaching; only complicated ones. There have been speculations concerning why this is so, ranging from the power of the entertainment industry's lobbyists in Washington D.C. to overzealous concern about students sharing scientific papers with the same enthusiasm that they share copyrighted music and movies. Whatever the reason, it is what it is.
When placing the copyrighted materials of others within an online course, there are basically three options:
- Comply with the requirements of the TEACH Act [Section 110(2)];
- Determine whether your proposed use qualifies as a fair use
- Obtain permission from the copyright holder.
How Do I Decide Which Option To Use?
Note: It is important that these questions be evaluated in chronicle order.
- Is the work copyrighted? If not, no further analysis is needed. If it is or you are not sure, read on.
- Is the work covered by a license, such as those governing the library's electronic journals and databases?
- Is there a specific provision in the copyright law that supports your proposed use?
- Does the fair use provision of the copyright law support my proposed use?
- Do I need permission from the copyright holder for the use I propose?