Using copyrighted materials in D2L
Fair Use and the Teach Act
The BASICS:
- Use legally acquired or purchased copies of
materials and always include copyright notices and remind students that
copyrighted works should not be copied and redistributed to others.
- Restrict the D2L access to those students enrolled -
this is done through authentication
- Block access to materials after the course has ended
- this is automatic
- When possible, it is preferable to link to
electronic material that is already licensed by the library rather than
make digital copies.
- Follow the same principles for fair use that apply
to print materials.
The SPECIFICS:
Besides obtaining the copyright owner’s permission to use the work,
you can select between one of two provisions in the law that allow use
of copyrighted materials in D2L:
- You can apply the principle of educational fair use (See
description of fair use below and go through the
Fair Use Checklist from Columbia University's
Copyright ) OR
- You can use the 2002 Technology, Education, and Copyright
Harmonization Act (TEACH Act) provisions which were developed to
address online education. The TEACH Act permits displays and
performances of copyrighted works to be transmitted and used for
instructional purposes, without permission of the copyright owner,
if a number of conditions are met. In order to qualify you must be
an accredited nonprofit educational institution or governmental
body. In order to transmit, a work needs to used:
- By, at the direction of, or under the actual supervision of
an instructor
- As an integral part of a class session, directly related to
the teaching content
- As part of systematic mediated instructional activities
- As part of a regular course offering of the institution
- In either case, the transmission shall be made solely for and
access should be limited to students
enrolled in the course for the period of time when the course is in
session. Since D2L takes care of these requirements
automatically, your job is to focus on the content and nature of the
materials.
- A copyright notice should be included and reasonable attempts
should be made to limit the students' ability to retain or further
disseminate the materials.
Provided that the certain
above conditions are met, the TEACH Act allows you to:
- Transmit a performance of non-dramatic literary or musical works
- Transmit a reasonable and limited portion of any other work,
including portions of dramatic literary works or musical works.
- Display any work, such as images, in an amount comparable to that
typically used in teaching a live classroom
session.
- Transmit materials that are not specifically excluded from the TEACH
Act, including:
- Textbooks, course packs or other material typically
purchased or acquired by students for individual use and personal
retention
- Any work that is marketed primarily for performance or display
in education for a mediated instructional activity.
Possible Scenarios
You want to make a DVD of an entire film on global warming
available on D2L. Does you need to get permission?
Most films fall under the category of dramatic literary or musical
works and the TEACH Act specifies use of limited portions of these
works. Since at UWSP the D2L site is restricted to the class and the
film was directly related to the class content, a segment that would be
comparable to what one would show in an individual class session would
probably fall within the TEACH guidelines. If however, you want to show
the entire film by streaming it through D2L, you must either make a fair
use case or get permission. Looking at the four factors one can see that
the only factor in favor of fair use is the educational use. Factors
weighing against fair use would be the highly creative nature of the
work, the amount used and the effect on the market effect (students will
tend to download the film and thus be able to keep their own copy).
If you want to show the entire film, it may be prudent to obtain
permission from the copyright holder.
You have scanned several hundred images from various texts to
represent 19th century Western architecture. You want to have them
available throughout the semester so that your students can consult them
as they wish in relationship to the texts they are reading.
Although the works are directly related to the content of the course,
aspects of this use would be difficult to justify under the TEACH Act.
The amount of the work used goes beyond that which could be construed as
a single classroom session and each individual image is considered a
complete work. Fair Use may apply in this case, but if the works were
used in multiple semesters, permissions may be required. Linking to
images available in licensed databases could be a safer choice.
The library subscribes to an image database called ARTstor and other
databases that include image repositories.
Fair Use
Section 107 of the Copyright Law allows for the "fair use" of a
copyrighted work for purposes such as criticism, comment, news reporting,
teaching, scholarship, or research. Additional guidelines (H.R. Rep. No.
94-1476, and
The United
States Copyright Law: A Guide for Music Educators) permit multiple
copies for classroom use under certain circumstances.
The following four factors, taken together, determine what constitutes
fair use. The first three factors are usually important in determining
the fourth.
- The purpose and character of the use, including whether it is
intended for commercial or non-profit educational use.
- The nature of the copyrighted work - published or unpublished,
factual or creative.
- The amount and substantiality of the portion to be copied as it
relates to the work as a whole.
- The effect of the use upon the potential market for, or value of the
copyrighted work.
Guides to the Teach Act
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