Fair Use and Online Learning
The world of online learning presents some unpleasant surprises when it comes to sharing materials. Recently, a university librarian from a selective private institution told me a story that put a nice point on this issue. One of the university’s schools had recently launched a collaborative online degree with peer institutions. Faculty members teaching in the program contacted the library to ask for help with making course materials available to the online students. When the librarians explained to them that they could not legally put any article or book that they wanted onto the site, the faculty became quite perturbed and stopped working with the library staff and simply posted their own articles for the online students.
Faculty are accustomed to thinking that everything they want their students to use for a course is covered by fair use. Fair use is the legal doctrine that permits limited use of copyrighted materials, including for educational purposes, without seeking the author’s permission or paying a licensing fee. Unfortunately, many faculty don’t realize that uses that would qualify as fair use when materials are shared with students who are on the physical campus, may not qualify as fair use if the materials are shared with individuals from all over the world who enroll in an online course.
In the typical classroom, a faculty member may feel secure in handing out a limited number of copies of an article because it is clearly for educational purposes. That same faculty member who is teaching an online course that is available to a wide audience, not simply the students on his home campus, may be in violation of copyright law by distributing digital copies of the same materials.
Complicating the matter further, many colleges and universities no longer indemnify individual faculty members who are sued for copyright infringement. Without this institutional indemnification, faculty are on their own for legal expenses.
Many libraries have gone to great lengths to produce guidelines for faculty to help them understand what is and is not permissible. The librarians are also eager to help faculty secure the permissions they need to use materials for online courses. This is a new and complicated world for faculty, but librarians have studied this problem carefully and are well informed about what is possible.
And libraries are eager to lend a hand. For example, Dartmouth College Library and the University of Maryland’s University College have each developed extensive guides to copyright issues and make clear that librarians stand ready to help faculty secure the permissions they need. Even if such detailed guides are not available, library staff can often help in determining what can and cannot be used in online courses.
Libraries are not the only places to offer assistance. The Office of General Counsel or offices of teaching and learning can also provide valuable assistance. The Copyright Advisory Office of Columbia University has also issued guidelines to help faculty gain access to the materials they need for their online courses.
The important point to remember is that the fair use guidelines that are used to determine what materials can be used on the local campus do not automatically transfer to online courses offered to the consumer public. To many faculty, these rules seem bureaucratic, but librarians can help navigate the terrain that faculty are not accustomed to dealing with. And, by becoming comfortable with copyright provisions themselves, faculty can ensure that their online students access the same level of resources that on-campus students enjoy.
Great post! Librarians are an important resource for help with these tricky issues.
Just to clarify, while educational use is relevant for determining whether an activity is fair use, not all educational use is fair use. Any use – educational, commercial, etc. – needs to be considered in the context of the four fair use factors: the purpose and character of the use (this is where educational use is particularly significant); the nature of the copyrighted work; the amount and substantiality of the portion taken; and the effect of the use upon the potential market for the work. In addition, the Copyright Office has provided guidelines for classroom use of copyrighted material. Check out those guidelines here: https://www.copyright.com/Services/copyrightoncampus/content/index_class.html
Yes, librarians are great resources but they are not very good advocates. The DMCA has fettered learning opportunities in favor of corporate greed. Our college radio station cannot play three songs by the same artist within a three hour period. That means, it is not illegal for us to play a tribute to the Beatles! Hold on let me check that 'freedom of speech' clause. Copyrights have destroyed the idea of the common good, but they have kept the money flowing. And that's what it's really all about. Come on, librarians - speak out!