The following is our interpretation of copyright and fair use as it applies to our online courses. We don’t want to limit your use of material or make more work for you; however, we need to make sure we’re following the law. Increasingly, schools are facing lawsuits dealing with copyright and accessibility issues. We will work with you to explore different options for using the materials you would like to use, in ways that keep us within fair use.
Fair Use and Other Limitations on Copyright
Fair use (section 107 of copyright law) is a limitation on the rights of copyright owners that allows the use of copyrighted material (without permission) in certain situations, such as in teaching, scholarship, and research. Section 107 specifies four factors for judges to consider when evaluating a fair use argument: purpose, amount, nature of the work, and economic impact (see the PANE acronym below).
There are other limitations on copyright. Section 110(1) of copyright law allows for the performance and display of copyrighted materials in face-to-face teaching at nonprofit educational institutions. In the online classroom, however, copyright gets much more complicated, since sharing materials often involves copying and distributing those materials. The TEACH Act allows copyrighted works to be used in online instruction, without permission of the copyright holder, but only if numerous conditions are met. As a result, fair use often provides a stronger basis than the TEACH Act for using certain works without permission.
Using the PANE Acronym for Determining Fair Use
If you do need to make a copy of something, use the PANE acronym to determine whether you’re sharing the content in a way that’s fair to the content’s creator (fair use):
- Purpose: You are using content for criticism, comment, news reporting, teaching, scholarship, or research. Content should not be shared for entertainment purposes only. Your use of the material should be transformative in the course. In other words, your use should “transform” the material taken from the copyrighted work by using it for a broadly beneficial purpose different from that of the original.
- Amount: You are using only as much as you need to serve your purpose and not more. You may have heard about the 10 percent rule (you can use up to 10 percent of a copyrighted work) but this rule is not in the law. Use only the minimum portion that you need and be able to make a strong case for why you’re using it in your course.
- Nature of the Work: You aren’t copying too much information from creative works (factual works are more lenient) and it is not used repeatedly. However, there is a strong argument that as long as a video is being used in a closed course for educational purposes, the length of using the video is not an issue.
- Economic Impact: Your use of the content or material will not deprive the copyright holder of revenue or profit.
How Can I Comply in the Online Classroom?
It’s pretty complicated to determine what the requirements are, so we’ve included a section on copyright in our design standards. Some examples of our copyright guidelines include:
- Whenever possible, link to resources (e.g., articles, videos, images) instead of copying them. The best way to avoid copyright infringement is to not copy materials. Embedding a YouTube video or a link to an image does not make a copy of that material; it simply directs the browser to the location of the material. Likewise, including a link to any publicly available link does not copy the material.
- Use materials for pedagogical purposes, not only for entertainment; be sure the material fulfills an instructional purpose by presenting the material within the context of the course (why is it relevant) and explain why it was selected. Use the surrounding commentary or announcement to recontextualize the material.
How Can I Find Copyright-Free Materials?
- Works by the U.S. Government are almost never copyrighted.
- Works that are in the public domain (i.e., created before 1923) may be freely used.
- Open educational resources (OERs) are educational resources available online for everyone to use.
OERs have Creative Commons (CC) licenses, which is a type of public copyright license content creators can use when they want to give people the right to share, use, and build upon a work that they have created. The easiest and most credible way to identify an OER is to search through Creative Commons. Talk to your instructional designer to learn more about these resources.
In addition, you can always seek permission from a copyright holder. The Sources list at the end of this post links to some templates for requesting permission.
If you have questions about your use of copyrighted materials in your teaching, ask your instructional designer and/or consult with the UW System General Counsel.
Do I have to Choose Between Fair Use and Accessibility?
Section 508 of the Rehabilitation Act of 1973 outlines the accessibility standards we need to follow in online courses, including providing captions on all videos. Sometimes fair use and accessibility can then seem at odds. For example, you come across a YouTube video you want to use in your course. However, the video is not adequately captioned. If we download the video to have it captioned, are we violating copyright? Who do you put at a disadvantage – the copyright holder or the student who potentially can’t engage with the material?
It hasn’t been proven in court, but precedent with books and braille suggests that captioning copyrighted videos would fall under Fair Use. The first factor in determining Fair Use is the purpose of the material and whether the use was transformative in the course. Although adding captions is not exactly transformative, the purpose of making the video accessible to people counsels in favor of Fair Use.
As a result, we believe we are within Fair Use to download videos and have them captioned in the situation where captions are missing or not of sufficient quality to meet accessibility standards. However, we cannot break the Digital Rights Management on a DVD in order to add captions (copy a video off of a DVD and provide it in electronic format).
A Final Thought
Why should we do this, aside from complying with the law? Because following fair use is the best way to model for your students how to appropriately integrate borrowed material and practice academic integrity.
University of Rhode Island Fair Use & Copyright for Online Education – with examples and scenarios for different types of copyrighted content.
One Page Copyright Flowchart – quick at-a-glance visual of Copyright and Fair Use.
3PlayMedia Copyright Made Simple for Digital Educators – summary of PANE acronym; includes a webinar recording.
I live in Eau Claire with my husband Chuck and my son Wesley. When I’m not chasing my son around, I enjoy reading, experimenting with kitchen gadgets, and trying new recipes.
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