Copyrighted Materials and Teaching

A copyright is an exclusive right of ownership that someone has with respect to his or her own original work and materials that are “fixed” or recorded in some tangible form. The Constitutional purpose of granting a copyright is to “promote the progress of science and the useful arts.”  Copyright does this by giving creators and authors exclusive rights to control, dictate and be compensated for the use of their expressive works so that they are incentivized to create and distribute those works. Certainly, when you pay for a copy of a book, song or photograph, you have purchased a copy for personal use. However, you are not allowed further copy or distribute the work (including in the classroom) unless: 1) you have permission from the copyright owner; or 2) an exemption applies, such as the “Classroom Teaching Exemption” or “Fair Use.”

Copyrighted materials are used in courses every day: books, music, movies, film clips, photographs, etc. Generally speaking, if the course materials are something that the students should buy, then they should buy it. However, professors often want to show a movie clip or make copies of something and hand it out to the students. In that case, a professor should evaluate whether he/she is allowed to use the materials because: 1) they are being shown in the course of the “face to face teaching” experience; or 2) the use is Fair Use. If neither of those two exemptions apply, then the professor may not use the materials without obtaining permission from the copyright owner. If permission is required, the instructor should then consider whether he/she already has been granted that permission, generally called a “license,” directly or through FSCJ, or whether he/she still needs to obtain permission directly.

The copyright law contains several provisions that authorize certain limited uses of copyrighted works without the copyright owner’s permission. The most important for teaching purposes are:

• “Fair use”
• The classroom teaching exemption (within the face-to-face teaching performance)
• The “TEACH Act” exemption for distance learning (applies to live teaching performance only)
• Library copying provisions
• Copying and adaptation for students with print disabilities

The two most commonly relied on exemptions are the classroom teaching exemption and Fair Use. However, Fair Use has its limits and it is not a carte blanche permission for unfettered copying and distribution.

The absence of a copyright notice does not mean that there is no copyright. Copyright protection exists automatically from the moment of creation in a tangible fixed form, which is generally considered to include electronic form. A notice is not required to protect copyright.

Fair use (17 U.S.C. §107) is an exception to the exclusive protection of copyright under American law. It permits certain limited uses without permission from the author or owner. Depending on the circumstances, copying may be considered "fair use" for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.

To determine whether a specific use under one of these categories is "fair," courts are required to consider the following factors:

• Purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
• Nature of the copyrighted work;
• Amount and substantiality of the portion used in relation to the copyrighted work as a whole (is it long or short in length, that is, are you copying the entire work, as you might with an image, or just part as you might with a long novel); and
• Effect of the use upon the potential market for or value of the copyrighted work.

The same laws and exemptions apply to online courses, but the laws may be applied differently. It is important to remember that Fair Use heavily depends on the setting and circumstances of the use. You may be able to show film clips in your live classroom setting because of the classroom teaching exemption. However, it may not be acceptable to embed those same film clips in your online course. In other words, what is considered Fair Use inside the classroom may not be Fair Use for an online course.