Mitigating Copyright Issues in Remote LearningJanuary 28, 2021

Remote learning raises important questions related to how copyright protected materials can be used in an online learning environment. One of the more frequent myths that we hear is that copyright law does not apply to a situation because that situation is educational in nature. However, just because a use is educational in nature, does not necessarily mean that copyright law doesn’t apply.

Copyright law affords broad protection to original works of authorship, including protection against the unauthorized reproduction, display, and public performance of copyrighted works. And while the Copyright Act does include limitations on the exclusive rights granted to copyright owners, including limitations related to education, these education related limitations are typically more narrowly tailored than most people have come to believe.

The Copyright Act of 1976 includes an exemption for the “performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction”. As you can see the above exception only applies to face-to-face teaching activities in the classroom.

Thus, in 2002, Congress amended the Copyright Act when they passed the Technology, Education, and Copyright Harmonization (TEACH) Act to expand the exemptions to an online distance learning setting. Generally, the TEACH Act permits the performance of a nondramatic literary or musical work and “reasonable and limited portions of any other work” (e.g., reading an excerpt of a book or play, or playing a short clip of a sound recording), as well as the “display of a work in an amount comparable to that which is typically displayed in the course of a live classroom session,” in connection with online distance learning; see 17 U.S.C. Section 110(2). Additionally, the TEACH Act generally allows for the digital reproduction of a work to the extent necessary to facilitate authorized performances and displays.

So, while the TEACH Act does allow for certain exemptions, the Act is subject to several limitations.

• The work must have been “lawfully made and acquired”. Simply downloading a work from the internet likely would not qualify, if the original material is itself infringing or protected by copyright.
• The performance or display of a work must be made by or under the “actual supervision” of an instructor “as an integral part of a class session” and it must be “directly related to and of material assistance to the teaching content”. Thus, playing a video or audio recording for entertainment purposes would not qualify. The work must be directly related to the classroom content.
• The exemption only applies to accredited nonprofit education institutions. For-profit education institutions would not qualify.
• The transmission of the work must be limited to students “officially enrolled” in the course. And institutions must apply reasonable technological measures that prevent students from downloading or further distributing the work.
• The exemption does not permit educators to copy and use others’ online course materials, as opposed to developing their own materials.

The TEACH Act can be a powerful tool for educators and institutions but it may not be the only tool available. The Copyright Act authorizes the “fair use” of a copyrighted work and specifically refers to teaching as one that may be considered fair. Many educators argue that the Fair Use Doctrine should accommodate the additional flexibility required by a public health crisis. They argue that educational institutions should be allowed to copy and use portions of protected works for emergency distance education under the circumstances that institutions face because of COVID-19. They generally cite to the benefit provided to the public in remote teaching as students can continue to learn while engaging in social distancing and while access to physical materials is impractical.

However, the Fair Use Doctrine has not changed due to COVID-19, and there is no caselaw that directly addresses the application of the Fair Use Doctrine during a pandemic or public health crisis. Therefore, while public policy and many copyright owners will likely guide a more forgiving application of the Fair Use Doctrine, institutions should act cautiously when using copyright protected works in an online distance learning environment. And because the Fair Use Doctrine asks courts to balance the nature of the work infringed, the amount infringed, and the nature of the infringement (commercial benefit, educational, etc.) against the potential harm or market impact to the copyright owner, educational institutions can and should take steps to improve their position in a fair use defense and/or mitigate the potential risk of a copyright infringement dispute. Because a fair use defense to copyright infringement is highly fact intensive, educational institutions should seek the advice of counsel when determining if a use of materials is likely to be fair use.

Brandon W. Clark is the Chair of the Copyright, Entertainment & Media Law Practice Group at McKee, Voorhees & Sease, PLC. For additional information, please visit  www.ipmvs.com or contact Brandon directly via email at brandon.clark@ipmvs.com