Although Open Education Resources and Creative Commons licenses provide much content free for educators to share with students during instruction, an online teacher may need to use copyrighted material. The Fair Use doctrine expands access to copyrighted material for educational purposes. It originally restricted the material’s use to the physical classroom, but in 2002, when President Bush signed the TEACH Act (Technology Education, and Copyright Harmonization Act), copyright law extended Fair Use to distance learning and online classes. Both Fair Use and the TEACH Act grant additional access beyond Copyright limitations and protect teachers from copyright infringement, but neither allow educators to completely ignore the law.
Fair Use, as I already addressed in a previous post, lists four factors to consider when determining whether the use of copyrighted materials is fair to the licensor and to the goal of the educational institution. They are:
- The purpose and character of the use
- The nature of the copyrighted work
- The amount and substantiality of the portion used in relation to the whole
- The effect of the use on the market or potential market for the original work
This chart provides a good guide that address these considerations.
Fair Use provides guidelines whereby online teachers can use copyrighted resources without fear of lawsuits. This gives the teacher more options for materials and resources when designing a course. For example, an English teacher might pull a paragraph from the latest Stephen King novel to demonstrate how he builds suspense. Although one could find similar paragraphs in an open content resource, that particular passage might be preferred. Plus, by using a familiar passage, the teacher will not spend extra time searching the web for a paragraph that is almost as good. Also by using a small portion of the work, a teacher ensures that all students focus on the same small section. For example, if a math teacher wanted students to analyze Martin Gardner’s description of a hexaflexagon, the teacher could share that section only instead of referencing page numbers or issues of Scientific American. Both applications of Fair Use help students and teachers stay on the same copyright protected page.
Fair Use and the TEACH Act help educators share reliable content, but not without some exceptions and careful consideration. Although both grant students greater access to and the ability to store copyrighted material, there are two major limitations of how and to whom the material is delivered. First, online teachers and distance learners may save and store the content, but only for the duration of the course. This stipulation replicates the experience of the student who reads a copyrighted passage in the school building. The material must not leave the educational environment. So, too, after the online course, the student is not allowed to retain reproductions. Second, online teachers must limit the number of students who have access to the material. That means the material must be encrypted and password protected. This is the equivalent of a classroom teacher making only a few copies to use within in the classroom. Teachers who want to use copyrighted material should always consider how classroom use will affect the market, and by protecting the reproductions, the teacher minimizes negative effects.
Copyright, Fair Use, and the TEACH Act are complicated, and teachers may be uncomfortable taking a risk of violating the law. If this is the case, I recommended using only Open Source, Open Educational Resources, or Creative Commons licensed material. I am not a lawyer, and I have probably left out a lot of legal specifics, so I encourage you to explore this topic on your own. I’ve listed several resources below to help you get started, but I also recommend consulting your school’s media specialist who know the specifics much better than I do.