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Library COVID-19 Resources: Copyright and Transitioning to Online

This page has library updates and resources related to the COVID-19 outbreak.

Course Reserves and Transitioning to Online

For information on course reserves during emergency online education, visit Course Reserves under the For Faculty tab above. For alternates to DVDs on reserves, find some options at the Streaming Video Guide.

 

According to Gary Hunter, System Director for Policy, Procedure, and Intellectual Property: a pandemic does not create any exceptions to copyright law but it does allow one to “be a little more assertive in the application of fair use and the TEACH Act.” Normally, online classes could use both fair use and the TEACH Act to determine if materials can be used, but under current circumstances, using fair use is probably all that's necessary since the courses were not designed to be online, but you may also use the TEACH Act Checklist.

Gary Hunter recommends the following steps:

1. Make sure your copying and uploading of copyrighted materials to D2L is justified by fair use or the TEACH Act,

2. Limit student access to the copied materials, such as through D2L,

3. DO NOT upload copies of copyrighted materials to public websites,

4. Advise students not to redistribute the copies of copyrighted materials, and

5. Remove access to the copied materials within a short time after the class ends.

For questions or assistance, email the MSUM Copyright Center at copyright@mnstate.edu

Fair Use Spring/Summer 2020

When making a fair use determination in the current situation:

Factor 1: Purpose and Character of the Use
Exactly how do you want to use the work? Educational uses are usually highly favored and now is no different. Moving classes online to limit exposure is a public benefit, so should also be favored.

Factor 2: Nature of the Work
Is the work factual or highly creative? Factual works are more easily defended as fair use, but highly creative works definitely qualify as well.

Factor 3: Amount and Substantiality Used
How much of the work do you need to serve your purpose? Using the entire work is not out of the question, but using only what is necessary is a better argument for fair use. 

Note: any guidelines that say you can use X%, X chapters, etc. of a work are just that: guidelines. They're not legally enforceable and can provide false security as infringement is still possible when using such guidelines. You need to look at the quantity and value of the materials used in relation to the purpose: is it a reasonable amount in relation to the use?

Factor 4: Market Impact

Will your use of the work replace purchase of the work? Will your use have no impact on or increase the market of the work?

Moving to remote teaching under emergency circumstances reduces the importance of this factor, but do not ignore it. If there is no time to get an Open Access alternative, a licensed alternative, or permission, this factor should not be a barrier to the need.

 

NOTE: what is done during these circumstances should not be expected to continue into fall 2020. If classes continue to be online in fall, those courses could be deemed as designed to be online and may have to follow different rules/instructions.

Fair Use Fall 2020 and Beyond

Even if fall 2020 classes are taught 100% remotely, the situation will be slightly different than fall and summer semesters as there will be more time to transition face to face classes to online. Use the same four factors:

Factor 1: Purpose and Character of the Use
Exactly how do you want to use the work? Educational uses are usually highly favored and now is no different. Moving classes online to limit exposure is a public benefit, so should also be favored.

Factor 2: Nature of the Work
Is the work factual or highly creative? Factual works are more easily defended as fair use, but highly creative works definitely qualify as well.

Factor 3: Amount and Substantiality Used
How much of the work do you need to serve your purpose? Using the entire work is not out of the question, but using only what is necessary is a better argument for fair use. 

Note: any guidelines that say you can use X%, X chapters, etc. of a work are just that: guidelines. They're not legally enforceable and can provide false security as infringement is still possible when using such guidelines. You need to look at the quantity and value of the materials used in relation to the purpose: is it a reasonable amount in relation to the use?

Factor 4: Market Impact

Will your use of the work replace purchase of the work? Will your use have no impact on or increase the market of the work?

Moving to remote teaching under emergency circumstances reduces the importance of this factor, but do not ignore it. Try to find an Open Access alternative, a licensed alternative, or obtain permission for use. This factor should not be a barrier to the need.

Fair Use in the Law

§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. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— 

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 

(2) the nature of the copyrighted work; 

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 

(4) the effect of the use upon the potential market for or value of the copyrighted work. 

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

See the entire text of Copyright Law.