Remote Teaching, Fair Use and COVID-19

Basics of Copyright:

• Basically any work created in written or audiovisual or other tangible form; it does not have to be published or registered with the Copyright office.
• Allows the owner - usually the creator, but could be also be the creator’s employer, company (work for hire) or publisher (journals will often require author to sign over copyright) – to reproduce, publicly distribute, and display
• Copyright is not forever and when it expires the work enters the public domain, i.e. it’s free to use:
  • Personal author: Life of the author + 70 years
  • Joint authors: Life + 70 years after last surviving author's death
  • Anonymous or Corporate authors and Works Made for Hire: 95 years after date of 1st publication, or 120 years after creation whichever expires 1^st
  • WORKS PUBLISHED BEFORE 1924: In public domain
  • WORKS PUBLISHED BETWEEN 1924 AND 1978: 95 YEARS AFTER PUBLICATION
  • Works published between 1924 and 1963 had to be registered and could have been renewed (check at https://exhibits.stanford.edu/copyrightrenewals). If they were not, they are in the public domain.
• No copyright on ideas, procedures, processes, systems, concepts, etc.; federal government documents (unless prepared by third parties under government contract or a copyrighted work within a government publication)

Fair Use:

• Allows for limited use of material under copyright without permission for purposes such as criticism, comment, news reporting, teaching (including multiple classroom copies), scholarship, and research. 
• Fair Use is determined by four factors:
  • purpose and character of the use
  • nature of the copyrighted work
  • amount and substantiality used
  • effect on potential market or value
• Just because you are planning to use it for educational purposes does not make it fair use.  It is impossible to list all possible fair uses and unless tested by a legal case there is some level of interpretation involved.
• It is best to use a checklist to determine whether your use weighs more in favor or against fair use.   A good, popular checklist is the one created by Kenneth D. Crews (formerly of Columbia University) and Dwayne K. Buttler (University of Louisville) and may be used under Creative Commons Attribution License: Fair Use Checklist
• Some people suggest you keep a copy of your checklist in case there are questions later.
• Some points to consider:
  • purpose and character of the use – most educational use favors fair use, don’t forget to give credit to the original author
  • nature of the copyrighted work – a published, nonfiction/factual work counts more in favor than a highly creative and/or fictional work
  • amount and substantiality used – while some say you can use up to 10% of the work, this is not a legal standard.  What is important is that only a small portion of the work is used and that this portion is not the most significant part of the work.  For example: if a book with essays is particularly famous/bestselling for one particular essay, using specifically that essay would be a factor against fair use.
  • effect on potential market or value – will the use affect the marketability/sale of the original work.  Putting a link in Canvas where only a limited number of students can access it speaks more favorably than putting the link on the department website.  Making copies of an article to distribute in class one time (maybe time sensitive material with no time to request permission) speaks more favorably than using the same article every semester.
• Linking is usually better than embedding.  Make sure to use a permalink/stable link when provided.

TEACH ACT:

• Technology, Education and Copyright Harmonization Act which helps educators use copyrighted materials for distance education by allowing for digitization of material that would normally be displayed in a face to face classroom setting.  For example, if you are showing a movie in your face to face class that is not available in streaming video format. 
• Since the TEACH Act passed in 2002 the amount of streaming video available has rapidly multiplied and so the need for faculty to digitize material themselves may have diminished.  A good guideline flowchart was created by Scholarly Communications@Duke, Duke University Libraries.

Creative Commons:

• Since works don’t have to be registered or display a © anymore to indicate they are under copyright, the need arose to indicate when an author/creator wants to make their work available with less restrictions.  OER publications generally have a Creative Commons license. 

There are several levels of CC license:

•  CC0 – No rights reserved/Public domain.  Author/creator waives their copyrights and places the work in the public domain
•  CC BY – Allows for others to distribute, remix, tweak, and build upon the work, even commercially, as long as they credit author/creator for the original creation.
• CC BYSA – Allows for others to remix, tweak, and build upon the work even for commercial purposes, as long as they credit author/creator and license their new creations under the identical terms.
• CC BY-ND – Allows for others to reuse the work for any purpose, including commercially; however, it cannot be shared with others in adapted form, and credit must be provided to author/creator.
• CC BY-NC – Allows for others to remix, tweak, and build upon the work non-commercially, and although their new works must also acknowledge author/creator and be non-commercial, they don’t have to license their derivative works on the same terms.
• CC BY-NC-SA – Allows for others to remix, tweak, and build upon the work non-commercially, as long as they credit author/creator and license their new creations under the identical terms.
• CC BY-NC-ND – Allows for others to download the works and share them with others as long as they credit you, but they can’t change them in any way or use them commercially.

Using library resources at NVC:

• The library offers the option to put items on reserve.  These can be from the library collection or your own (can be textbook for your class), will be kept behind the circulation desk and students can check them out for 2 hours at a time to be used inside the library only (most common), or overnight or a couple of days.  There are copyright implications for some material.  Please contact the NVC Circulation Desk at 1-210-486-4500 or nvc-libcirc@alamo.edu for more information.
• The library subscribes to over a hundred e-resource packages providing access to articles, streaming video, and e-books.  They can be found through One Search on the library homepage and the subject list of databases.  These can easily be linked to into Canvas. 
• The streaming video all allow for streaming in the classroom and faculty can also create playlists and clips to show/assign.
• An increasing number of e-books allow for unlimited users, making it possible to use them in class/for assignments.

Images:  People often overlook copyright in using images; just because the image is all over the web doesn’t mean it is in the public domain.  Here is an infographic on the use of images.

FAQ:

If a work is out of print, can I make copies without worrying about copyright?

Out of print doesn’t mean in the public domain or that there really are no copies available anywhere.  You should still do a Fair Use evaluation before proceeding – non availability speaks in favor of fair use, but the other factors should still be considered.

Can I use my student’s work in a presentation without permission?

As the creator of the work, the student owns the copyright, even if it was done for a class.  Always get a student’s written permission to use their work and make sure it includes how the work is to be used, for how long, and any other terms.  The permission is for that use only, it is not a transfer of copyright, unless the owner explicitly puts it in the agreement.  We have a Permission to Use Student Paper Letter  available and while it constructed for using a student paper as example in the reserve collection, it can be used as a model.

Can a student use an image from the web in a class presentation that will not be posted on the web or published?

Students should adhere to copyright and fair use; the Student Code of Conduct and Alamo Colleges policies prohibit violations of copyright. 

What if I cannot find a copyright owner or his/her contact information to ask for permission?

The Copyright Clearinghouse and the U.S.Copyright Office can help.  There is continuing discussion in the legal world regarding “orphan works” (unknown or unfindable authors), but until anything is decided it is best to use the Fair Use evaluation.

If I just link to documents/information I’m safe right?

In general linking is safer than embedding, but it is still important to do a careful evaluation.  You don’t want to link to something that was posted on the web in violation of copyright.

Can I print and give copies of an article I have to my students?

It is OK to distribute print copies of an article or other part of a work to your students, but there are limitations.  It should be limited in number of copies/students (so your classes is OK, but not the whole English department) and frequency; one time (considering there may not have been time to ask for permission) is OK, every semester is not.  Again, let the Fair Use evaluation be your guide. 

The textbook for my class has not arrived at the bookstore, can I place copies of the first two chapters on reserve at the library

Fair use does not apply to material required for class.  You may however put a copy of the textbook on reserve in the reserve.

I have a collection of articles that I want to use in my class.  Can I sell them as a course pack to my students or have the copy shop sell them?

Only if you have permission from the copyright owner of each and every article. 

Can I show a movie in class?

This is generally considered fair use, as long as you are using a legal copy AND the movie is een integral part of the course and not entertainment.

Can I digitize a movie I own and put it online for my online class?  Can I make a copy of a VHS I or my department owns and show in class?

Only the copyright owner has the right to make copies/reproductions and you only own a copy.  So the short answer is No.  Libraries have limited rights to digitize movies or make archival copies; the library can also help you find a streaming video of the movie that you can use.

A student organization/my department is having an event for our students. Can we show a movie?

Even if the event is on campus, organized by school organization, no fee is charged, and only students are invited, this generally does not fall under fair use.  You would either have to ask for permission or get a copy with public performance rights.  The library can help you find a DVD/streaming video with public performance rights.