Since education in the United States has traditionally been face-to-face in classrooms, policies regarding classroom usage of copyright-protected works have been re-examined in these exigent circumstances of online classes due to Covid-19. Educators and policy-makers’ perspectives on Fair Use were not written for situations where face-to-face education is over videoconferencing technology and in virtual classrooms; educator obligations regarding use and distribution of books, music, videos and even worksheets, as well as policies managing how teachers teach, and how students learn and document mastery of subjects, have been swiftly re-assessed.
While educators revised policies, two decisions were published; each has the potential to broaden how copyright-protected works can be used in virtual classrooms. On March 24, 2020, the Ninth Circuit said that “the defense of Fair Use, if applicable, should cover ‘teaching’ whether in a private or public setting.” The ruling did not distinguish between face-to-face education and distance learning, stating simply that “the Fair Use defense renders a use non-infringing. (Tresona Multimedia, LLC v Burbank High School Vocal Music Association)
The Supreme Court ruled that same week that a state could not be sued for copyright infringement by a company that held copyrights in photographs. Justice Kagan wrote the unanimous decision that “Article 1’s Intellectual Protection Clause could not provide the basis for an abrogation of sovereign immunity.” Congress could create that basis, but at this moment it does not exist. Accordingly, state-licensed schools might not be liable for copyright infringement, as the law currently stands. In a different time, Congress might take action to change this situation relatively briskly, but given the current complexities in the world, there is no expectation that such a law will exist before the end of this school year. (Allen et al. v. Cooper, Governor of North Carolina, et al.)
Fair Use Favors Flexibility
Even before these rulings came down, the concept of Fair Use gave broad latitude for many kinds of classroom uses. A Fair Use analysis looks at four factors (a) the purpose and character of the use; (b) the nature of the copyrighted work; (c) the amount and substantiality of the portion taken, and (d) the effect of the use upon the potential market. Copyright specialists affiliated with libraries around the U.S. looked to Fair Use in stating that “making materials available and accessible to students in this time of crisis will almost always be Fair Use. If we are being thoughtful in analysis and limiting activities to the specific needs … during this time of crisis, copyright law supports our uses.” Their position is that Fair Use “accommodates the flexibility required by our shared public health crisis, enabling society to function and progress while protecting human life and safety.”
The Tresona ruling looked to “the limited and transformative nature of the use and the work’s nonprofit educational purposes in enhancing the educational experience of … students.” A work is transformative Fair Use when “new expressive content or message is apparent,” even if “the allegedly infringing work makes few physical changes to the original or fails to comment on the original,” said the court. Accordingly, a teacher creates a transformative work, which falls into the protective bubble of Fair Use, when they craft a message, enhance their students’ educational experience, or educate their students in creating expressive content; as Fair Use is a lawful use of copyright, such usage is non-infringing and should be permitted under educational policies at all times, but particularly while teaching in the shadow of COVID-19.
Copyright is Not Infringed in “Places Devoted to Instruction”
Even without reliance on Fair Use exceptions, Section 17 U.S.C. § 110(1) of the Copyright Act explicitly says that neither teachers nor students infringe on copyright when using a work “in the course of the face-to-face teaching activities of a non-profit educational institution, in a classroom or similar place devoted to instruction.” It is reasonable to conclude that internet-based teaching activities of public schools and non-profit educational institutions qualify as a “similar place devoted to instruction.” To the extent they might not, a Fair Use analysis of the “purpose and character” of said follow-on use should enable teachers to modify their in-classroom teaching activities for use online without worrying that they are infringing on someone’s copyright.
Well-known authors who are also licensors, have recently expanded their licenses to educators. However, in the United States, between the Copyright Act exceptions and the nature of Fair Use, educators probably don’t need the author’s permission to read portions of the books with their students, and discuss passages in online classes any more than they need permission to do so in a traditional brick-and-mortar classroom.
Is Videoconferencing a Closed Educational Platform?
Given current Fair Use common law, teachers should not be required to ask permission from an author to post a video of themselves reading a copyrighted book to their students, especially if that video is sent via email to the students, or shared by the teacher only on a school’s secure networks or closed educational platforms. One ongoing question is whether third-party videoconferencing systems used as virtual classrooms are the equivalent of a school’s secure network or closed educational platform; if they are seen as analogous, educators using those platforms can rely on Section 110(1) exceptions. Even videos uploaded to YouTube could fall into that analogy, especially if the videos are not publicly listed on the service, and only those with the URL can access them.
As schools evaluate policies, they can review whether specific plans are permitted under the Copyright Act or are non-infringing because of Fair Use carve-outs; presuming follow-on uses are infringing forces teachers to forego educational opportunities for their students, and as they collaborate. Copyright owners should also take this time to examine their policies and license language; failure to do so risks public relations fallout. Copyright monopolism does not exist in the United States, but copyright protection does – the balance between the two is a necessary focus for all copyright-holders during the time of COVID-19-impacted education.
If you need help navigating these uncharted waters of copyright in the day of a pandemic, reach out and let’s talk.