Media Center

April 27, 2020
Publications

by Olivia Levine and Brian Gregg

In response to COVID-19 closures, educational institutions have rapidly transitioned to online learning in order to continue to serve their students.  Remote learning raises important questions about how materials purchased or licensed for traditional classrooms can be used in an online learning environment. For example, “Do licensing or copyright law restrictions apply to an institution’s use of these materials for distance learning?” Does digitizing print materials for display or download in an online learning environment infringe the author’s copyrights or violate the publisher’s license, or is this fair use? As with many copyright questions, the answers are complicated. But there are some best practices that institutions can use to reduce their exposure to copyright infringement claims.

In general, “fair use” of copyrighted works is permitted.  The fair use analysis considers four factors: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.  All of these factors must be weighed; none of them are determinative.

Many commentators from the academic community argue that the Fair Use Doctrine should accommodate the flexibility required by the current public health crisis. They claim that educational institutions should be allowed to copy portions of the protected works for emergency distance education under the circumstances that institutions face because of COVID-19. They point to the benefit to the public in providing remote teaching because students can continue to learn while engaging in social distancing and while access to physical library materials is impossible.

The Fair Use Doctrine, however, has not changed due to COVID-19, and there is no caselaw that directly addresses the application of the Fair Use Doctrine during a pandemic. Therefore, while public policy will likely guide a fairly forgiving application of the Fair Use Doctrine, institutions should act prudently when using copyright-protected works in remote learning.

Because the Fair Use Doctrine asks courts to balance the nature of the work infringed, amount infringed, nature of the infringement (commercial benefit, educational, etc.) against the potential harm to the copyright owner (market impact), educational Institutions can take steps to improve their position in a fair use defense, but it remains just that – a possible defense that may not succeed.

These recommendations can help improve an institution’s fair use defense to potential copyright infringement claims:

1. Digitize only the works needing to be digitized under the circumstances; avoid digitizing an entire book or an entire chapter when only a few pages are needed for the course; ensure that new purchases of materials include the rights to use them for distance learning;
2. Make content available to students only for the purposes of the particular class, instead of placing it in an open digital repository that anyone can access;
3. Do not circulate copies of the digitized materials; keep them on an intranet, not the open Internet and make them accessible (but not downloadable) in an online platform instead of emailing copies to all students;
4. Limit recording of live streamed lectures and treat any necessary recordings consistent with these recommendations; and,
5. When the exigent circumstances are over and face-to-face instruction resumes, stop using the digitized works or obtain proper licenses for them.

With respect to the last recommendation, be aware that the Fair Use Doctrine suggests that the level of effort an institution undertakes to stay within the boundaries of fair use will tighten over time as the crisis abates or as institutions have more time to improve their distance learning methods.  Therefore, a hastened approach to getting materials online during the initial weeks following the abrupt closure of classrooms may fit within the bounds of fair use, even if an institution captures more content than is needed or makes it more broadly available than needed.  However, such an approach is less likely to qualify as fair use months into the future once institutions have time to refine their materials and/or seek proper licenses.  Publishers are also likely to adapt their materials for online learning, which will increase the relevance of the fourth fair use factor.  Institutions contemplating cancelling in-person classes past the spring of 2020 should keep these considerations in mind.

If materials must be distributed, consider adding a special cover page that instructs students on the limitations of their use of the materials and proper disposal. The cover page should state that the copy is for the student’s personal use only and is intended only for use during the time when the institution’s public health measures prevent access to the student’s personal copy or a copy on physical reserve at the library. The cover page should also instruct students to discard the copy once they have access to their personal copy or to the physical copy at the library. Finally, it should instruct the students not to share the document with anyone else.

Remember, fair use is a defense to copyright infringement and it is highly fact intensive. While the practices described in this article do not guarantee that an institution will not face an infringement claim, these steps should put institutions in a strong position to raise a fair use defense, which should deter a copyright owner from bringing an infringement claim. Educational institutions should seek the advice of counsel when determining if a use of materials is likely to be fair use.

For assistance in addressing any intellectual property issues during the COVID-19 pandemic, McNees attorneys remain available to assist you 24/7 as the need arises. Please reach out to a member of the Intellectual Property Group with any questions.

© 2020 McNees Wallace & Nurick LLC
McNees Intellectual Property Client Alert  is presented with the understanding that the publisher does not render specific legal, accounting or other professional service to the reader. Due to the rapidly changing nature of the law, information contained in this publication may become outdated. Anyone using this material must always research original sources of authority and update this information to ensure accuracy and applicability to specific legal matters. In no event will the authors, the reviewers or the publisher be liable for any damage, whether direct, indirect or consequential, claimed to result from the use of this material.