FAIR USE IN ONLINE EDUCATION AND WEB BASED TRAINING

IVAN HOFFMAN, B.A., J.D.


        “Fair Use,” as that term is defined in section 107 of the United States copyright act, is one of the bedrock principles of the education system.  It is the exemption from copyright licensing generally enjoyed by schools at every level and which allows those institutions to make copies of otherwise protected works for classroom instruction.  NOTE: this article deals primarily with the “for-profit” sector of online education.  See below for a reference to TEACH dealing with non-profit issues.

        That statute is currently inadequate to cover such uses in the online environment and course materials that contain copyrighted works may not be usable in that environment.  Here is how the situation arises: an instructor has prepared material for use in a traditional classroom setting and that material contains third party copyrighted materials such as text, graphics, videos and so on.  (Read “The Use of Protected Materials in Multimedia Projects.”) Now the instructor or the institution (depending on the ownership of rights questions as but a part of the issues.  See “Online Education Rights: Relationships Between Faculty And Institution”) seeks to put those materials including the third party copyrighted materials online or in CD, DVD or other format for use as part of a distance learning or web based instruction program.  Will the fair use provisions of the copyright law protect these uses from copyright claims by the third party?

The Statutory Set Up

        The federal statute says in part:

§107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

        The operative language is “including multiple copies for classroom use.”  If the statute is to apply , clearly the definition of “classroom” would have to be extended to cover uses on the Internet and via CD, DVD etc. Copyright proprietors have grown accustomed to having their materials used for limited  purposes within the confines of a classroom, given the limited number of copies that can theoretically be made for a given class number.  But extending the concept of the classroom to the potentially huge number of audiences that are possible “students” on the Internet and otherwise will surely be met with objection.

        Additionally, there are other uses of such materials that are not even remotely akin to classroom use or “scholarship.”  Online and web based training may be for courses that are commercial and industrial in nature such as marketing and other courses.  If such material as are the basis for such courses contain protected materials, will they too fall outside the scope of the fair use protection?

        It is not all just a one-sided argument, however, since the more commerciality a given project possesses, the less likely a “fair use” defense will hold up.  Commerciality is not conclusive but certainly a part of the generalized guidelines the fair use statute and the cases decided under it consider in making the determination.

        But there are additional problems.  Using materials on the Internet and in CD-ROM and DVD formats involves other copyright rights including the right of “display” and in the instance of a video etc. also the right of performance.  Section 110 of the United States copyright law provides, in part:

§110. Limitations on exclusive rights: Exemption of certain performances and displays

         Notwithstanding the provisions of section 106, the following are not infringements of copyright:

              (1) 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….;

              (2) performance of a nondramatic literary or musical work or display of a work, by or in the course of a transmission, if--

                   (A) the performance or display is a regular part of the systematic instructional activities of a governmental body or a nonprofit educational institution; and

                   (B) the performance or display is directly related and of material assistance to the teaching content of the transmission; and

                   (C) the transmission is made primarily for--

                        (i) reception in classrooms or similar places normally devoted to
                        instruction, ….

        Thus, you can see the problem.  In order to qualify for the “display” or “performance” exemptions, several factors must be present and they are each requirements.

        First: the display or performance must be by “instructors or students.”  This may eliminate the exemption if the actual party displaying on the Internet or a CD is not in truth either an instructor or a student but some third party licensee of materials.

        Second: under any circumstances, the display or performance must take place in a “face to face” setting inside a classroom or similar place of learning.  Clearly neither of those conditions is satisfied on the Net or in other media.

        Third: the party making the display or performance must be a “non-profit educational institution.”  This is a major obstacle.

        Fourth: the display or performance of the work must be a “regular part of the systematic instructional activities of a governmental body or a nonprofit educational institution…”  and it too must be part of a presentation in a “classroom” or similar setting.

The TEACH Act

        In 1992, Congress passed the “Technology, Education, and Copyright Harmonization Act” (TEACH) in order to create rules for how educational, non-profit organizations can use copyrighted materials in online distance education without having to pay licensing fees therefor.  The rules are complex and beyond the scope of this article, which article deals with for-profit companies conducting online distance education courses.

Conclusion

        Without changes in the law, the use on the Internet and in other digital forms of copyrightable works currently contained in teaching materials may constitute an infringement of the copyright rights of the proprietors.  Without such changes, parties that seek to use such materials are faced with the need to license that content from those proprietors including perhaps paying royalties and other fees.

        Thus, those seeking to license this content for the creation of online educational materials and other such uses must be very careful about obtaining appropriate and enforceable representations and warranties from the instructor or institution about third party materials contained within that content.

Copyright © 2000, 2006 Ivan Hoffman.  All Rights Reserved.

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This article is not legal advice and is not intended as legal advice.  This article is intended to provide only general, non-specific legal information.  This article is not intended to cover all the issues related to the topic discussed.  The specific facts that apply to your matter may make the outcome different than would be anticipated by you.  This article is based on United States law.  You should consult with an attorney familiar with the issues and the laws of your country.  This article does not create any attorney client relationship and is not a solicitation.

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No portion of this article may be copied, retransmitted, reposted, duplicated or otherwise used without the express written approval of the author.
 


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