In addition to the flexible doctrine of fair use, teachers can rely on two specific exceptions that allow the performance or display of copyrighted works for classroom instruction.
First, Section 110(1) of the Copyright Act gives teachers and others in a non-profit educational institution engaged in “face-to-face teaching activities” in a classroom (or similar space for educational activities) wide latitude to screen movies, perform plays and other literary works, and generally to perform or display copyrighted works in their lectures and classroom teaching activities. There is no limit on amount or kind of work, or purpose of the use, so long as the activity is part of in-class instruction.
Second, Section 110(2) (also known as the TEACH Act) protects distance and hybrid education, i.e., the performance or display of works for an online course or a course with substantial online components. Unfortunately, Section 110(2) is quite complex, and many institution find its provisions difficult to interpret or apply. For example, the law allows “performance of a nondramatic literary or musical work or reasonable and limited portions of any other work,” which suggests that dramatic works (plays, movies, musicals) should not be performed in their entirety. However, authoritative commentators, including the Congressional Research Service, have suggested that entire works may constitute “reasonable and limited portions” in some circumstances. In practice, fair use has become a crucial backstop to the TEACH Act in that it gives teachers comfort that even if they might misapply some of the technicalities of TEACH, so long as they are reasonable, their activities should be protected by fair use. For more information about the TEACH Act, American Library Association has a useful guide prepared by Kenneth Crews.
- Written by Brandon Butler
Libraries have long provided students enrolled in a particular course with access to a selection of reserved materials curated by their professors. In the physical world, these practices are permitted by the same rules that allow libraries to lend books in their collections . As these practices migrate online, access to materials often involves copying and distribution in new ways, and it’s important to be thoughtful about the copyright questions raised by these changes.
Three kinds of content that do not raise serious copyright concerns are public domain materials, links, and Creative Commons licensed materials. Public domain materials are, of course, free of any copyright constraint and can be used and reused freely. As explained elsewhere in this guide, materials made available under a Creative Commons license (such as CC-BY) have a built-in permission from the copyright holder to share and re-use them, so long as you comply with the terms of the license. Do pay close attention to the terms of the license, though, as not all CC licenses grant the same permissions.
Links to content posted on the open web (websites, videos, or articles in open repositories, for example) do not implicate copyright. Courts have said a link does not provide a copy directly; it only tells the user’s computer where a copy may be found. Of course an instructor should always try to link only to lawfully-published content online, but ultimate responsibility for posting the content lies with the publisher, not the linker. For online materials from the Library’s collection, the Library has negotiated access for students as part of our license to the content, so sharing links within course reserves is covered by the license. Library subscriptions are an easy way to provide lawful access to electronic journal articles, for example. A librarian can help you find and use these kinds of resources in your courses.
For posting materials that are under copyright and not available on the open web, nor through a library subscription, the Texas A&M University Libraries has a course reserves policy designed to help teachers and students follow the law and best practices in fair use for this activity. As that policy explains, the core questions to ask in determining whether materials can be shared appropriately in online course reserves are:
For some kinds of content, such as popular entertainment or news reporting that is repurposed as the subject of critique or as an illustration of a historical or aesthetic trend, the repurposing argument will be particularly straightforward. The instructor will need to be careful to use an appropriate amount for her pedagogical purpose. Examples of transformative uses (and non-transformative ones) are provided as part of the library’s course reserves guidelines.
Course instructors who use online platforms to share materials with students should think through and be prepared to describe their pedagogical purpose and how they decided on the appropriate amount for that purpose. If you would like to make material available to your students that was originally written and/or published for educational use (such as textbooks, workbooks, handbooks, and other academic supplements), fair use is unlikely to be helpful to you, and you should consider requiring students to purchase a copy for the course, or asking the library to make copies available in physical reserve rather than online.
In addition to the professor’s conscientious choices about content, the University takes important measures to ensure that its course reserves policies are within the law and best practices. Most importantly, only enrolled students (and relevant staff, such as librarians or teaching assistants) can access course materials, and only for the duration of the course.
- Written by Brandon Butler
Open Educational Resources (OER) are resources for teaching that are made available under open licenses so that teachers, students, and schools can use and modify them freely. Many organizations, including the federal and state governments, are funding and distributing OER materials. The links below will help you find OERs and other open resources you can use in your projects.
- Written by Brandon Butler