1. Make sure your copying and uploading of copyrighted materials to D2L is justified by fair use (see below) 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
The information on this page is subject to change.
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.” Classes that are designed to be online can use both fair use and the TEACH Act to determine if materials can be used. Classes designed to be face-to-face cannot use the TEACH Act checklist. In the situation that courses designed to be face-to-face are forced into an online format with very little notice, using fair use is probably all that's necessary 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
Courses not designed to be online (i.e. they are designed for face-to-face) should always consult the fair use four factor test to determine if the use of works is not infringing copyright. If the use does not pass the four factor test, consider asking the copyright holder for permission or consider using works in the public domain, licensed works, or open educational resources.
If classes designed to be face-to-face are later transitioned to online due to unforeseen circumstances, these materials should still be able to be used but may need to be reviewed again given the new circumstances. Educational uses are highly favored in fair use, but one must review all four factors to make a determination.
Courses that are designed to be online can use either fair use or the TEACH Act.
The Fair Use Four Factor Test
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? Are you copying the most central portions? Can you use less of the work and still meet your need?
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?
§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.