When explaining a copyright decision or topic with faculty, the goal is not to tell them definitively what they can and cannot do, but to help them better understand how copyright impacts their work. This will give them background information and context for the decision. It will also better equip them to make their own copyright decisions, as with Fair Use analyses. You can always refer faculty to the excellent "Copyright Guidelines Document" put together by Ann.
When discussing copyright with a faculty member, always preface your comments by letting them know that you cannot and are not providing legal advice. Providing legal advice is illegal (unauthorized practice of law), and it increases your liability. If you are using written communication for the discussion, this could be as simple as stating, "Please note that I am not a lawyer, and I cannot give legal advice."
When making any sort of copyright decisions, like performing a Fair Use analysis and deciding to use the copyrighted work, make sure it is documented. If you are talking to faculty about making copyright decisions, remind them of the importance of documentation; some tools, like the ALA Fair Use Evaluator, provide a time-stamped PDF of the decision. Although documenting a decision does not remove liability, it show that the Fair Use decision was made in "good faith," which could be helpful should the decision be challenged legally.
There are many excellent copyright resources, FAQs, and guides available to share with faculty members. As there are many situations when you cannot make a copyright decision on a faculty member's behalf - including Fair Use analyses - you may wish to direct them to these resources.
When assisting a faculty member find materials to use for in-person instruction, the two exceptions to copyright law you want to consider are Section 110 and Fair Use.
This exemption allows for the performance or display of a copyrighted work under these conditions:
This exemption is a faculty member's copyright superpower when teaching in-person! Do note that it still doesn't allow for making copies of the work for the students. ALA's Educational Exemptions for Instructors in U.S. Copyright Law is a helpful tool for navigating Section 110.
Fair Use is always an awesome exception to keep in mind when helping faculty find instructional materials. You may need to do a Fair Use analysis for materials used in face-to-face instruction if the faculty member needs to do more than perform or display the work (allowed by Section 110). For a more robust understanding for Fair Use and how to apply the four factors, view the Home page of this guide.
Helping faculty locate course materials for in-person instruction will likely be covered by Section 110 and Fair Use (remember that a Fair Use analysis must be made for every material and use), but it can be useful to think about these alternatives. For instance, if a faculty member wants to use a work that has never been copyrighted or has fallen out of copyright, meaning that it is in the public domain, the faculty member may move forward with the use. Or, if the work has been licensed with a Creative Commons license, the faculty member may use the work as specified by the license.
When assisting a faculty member find materials to use in online instruction - typically to be put on Canvas - your go-to copyright exception will be Fair Use. You may also wish to look at the TEACH Act (Section 110(2)), which allows for the performance and display of works in very particular situations, or use other options.
For a robust understanding for Fair Use and how to apply the four factors, view the Home page of this guide. When doing a Fair Use analysis for material that will be housed on Canvas, the fact that it will be "locked down" so only students in the course can see it weighs in favor of the use. Remember that a Fair Use analysis should be done for every work and instance of its use. If a faculty member plans on using the same work for multiple semesters, it may be worthwhile to look into another option.
The TEACH Act places more limitations on performing or displaying a work for education online than in the face-to-face classroom. The TEACH Act does not cover textual materials. To see the limitations and learn more about the TEACH Act, see:
Looking for materials in the public domain or those under Creative Commons licenses is a good way to find acceptable course materials. Fair Use is powerful and should be used, but it still requires the faculty member to defend their use of the copyrighted material. With works in the public domain or Creative Commons, that justification isn't needed. Looking for OER materials, in particular, can be very useful. If these options don't work and the use does not count as Fair Use, the faculty member needs to get permission to use the work or find something else that will be acceptable.
One reason faculty must use the streaming media request form is so that we can abide by copyright. It allows us to track the purpose, the length of clip wanted (remember, this is important for Fair Use), and also allows us to document every step of the process. This process also gives us a chance to find legally available / licensed copies of the films.
Unfortunately, the terms of use for personal streaming services like Amazon Prime and Netflix don't allow for showing films in educational settings. (License agreements trump copyright law.) So, even if a performance of a film would be allowed by Fair Use or Section 110, it cannot be shown via the faculty member's personal streaming service. "Streaming Media in the Classroom," by Rebecca Johnson (licensed under CC BY 4.0), is great infographic detailing this scenario (below).
The Digital Millennium Copyright Act (DMCA) also impacts how we can deal with ripping films to stream. According to the College's "Copyright Guidelines Document" (2018):
"The Digital Millennium Copyright Act (DMCA) of 1998 created new limitations in using digital content. It made circumventing technological protections, like breaking DRMs or other encryptions, a copyright violation. However, there are exceptions to the DMCA that permit circumvention without it being a copyright violation." (p. 38)
Learn more about the DMCA and its exceptions from the Rockhurst University Greenlease Library's Copyright and Fair Use Guidelines.
Approving readings in eReserve Plus relies on Fair Use. Because the materials are intended to live in Canvas, the exception which allows for the use of materials in face-to-face instruction (Section 110) will not apply. eReserve Plus' built-in assessment tool is based on the Fair Use Evaluator from ALA.
For a more robust understanding for Fair Use and how to apply the four factors, view the Home page of this guide.
True or false? A faculty member tells you that their use of copyrighted material is alright because they included a citation.
False! Plagiarism and copyright infringement are not the same thing. Copyright infringement is an entirely legal manner, and a faculty member may violate copyright even if they provide a citation. Instead, use should be allowed by one of the exceptions in copyright law - like Fair Use or face-to-face classroom instruction - otherwise permission would be needed. Learn more about how copyright differs from plagiarism:
