Copyright & COVID-19: Navigating Streaming Laws for Online Classrooms in the New Normal
8.16.2020
Once COVID-19 began spreading rapidly throughout the U.S. this past spring, schools across the state and nation quickly closed their doors, and our educational system had to adjust to a new kind of learning that began to take place primarily all online. Months later, many parts of New York City and the rest of the state are re-opening,[1] yet it is still likely that learning via webinars, lectures, and lessons will continue into the fall, as many high schools, colleges, and universities still plan on conducting classes partially remotely in the coming months.[2] As the educational world continues to navigate this new type of teaching, people need to be aware of the different aspects of the law that govern such usage of material, to better protect themselves moving forward in this changing world. Now, teachers are streaming materials, lessons, and content that are all easily accessible not only just by students, but by any individual with reasonable access to and skills in basic technology. Therefore, it is more important now than ever that we understand how copyright laws apply to this new form of learning.
First and foremost, copyright is a set of rights that are usually reserved for protecting original works of authorship, including novels, music, or even art. Copyright protection automatically extends once a piece of work is created, but it is usually recommended that the author or artist register the copyright, because that allows the owner to bring a lawsuit to enforce it – this makes it less likely that other people can copy the work and produce it by themselves.[3] The main exception to copyright law is fair use: when a person uses a copyrighted work for “purposes such as criticism, comment, news reporting, teaching, scholarship or research.”[4] To determine if a use of copyright is fair, courts typically look at four factors:
1) purpose and character of the use (if it includes commercial nature or nonprofit educational purposes),
2) nature of the copyrighted work,
3) amount and sustainability 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.[5]
It is up to the person streaming the content to show how the fair use doctrine applies to their materials, and determining whether it applies mostly depends on the facts and information shown[6] and fair use usually “has a broader scope where the original work is factual or informational.”[7]
However, just arguing that you are using a certain type of online content for educational purposes alone will not guarantee a complete defense to claims of copyright infringement – it is important to show that in the educational material, new insight, lessons, or information are being expressed, and the instructor should not just be streaming old materials with no input from his or her own instruction.[8] Under the second factor, instructors may have a better chance of using other material in their lessons if they can demonstrate that the work is factual/informational and if the work has already been published before (i.e., using material from a biography, memoir, or other non-fiction material is likely to be more successful than referencing portions of a fictional work like a play or novel).[9] The third factor looks at how much of the original content instructors are using – interweaving a few minutes of lessons into your own course is likely to pass muster, rather than streaming an entire presentation that has already been created by someone else.[10] Finally, the fourth factor looks at whether the person borrowing the content is depriving the owner of the original copyright of potential income or if it undermines a market for the copyrighted work. If streaming this borrowed content is likely to deprive the owner of the work of possible earning revenue, it is likely they will not be able to use the content.[11]
These factors apply to works in general, but there are also other guidelines that help instruct people on what they are able to stream in terms of educational content specifically. Firstly, The Copyright Act of 1976 allows a “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,”[12] unless (in the case of a movie or other types of audiovisual work), the copy was made unlawfully and the person who showed the material to their students knew such.[13] For further clarification, U.S. Congress issued a report in 1976 (House Report No. 94-1476) that provided more instruction as to what teachers can or cannot borrow when doing their jobs: essentially, they re-affirmed that using works by others is allowed during in-person teaching in a classroom or similar place, generally. The report also states that teachers are allowed to make a single copy of a chapter of a book, a newspaper article, a short story or essay, or charts for instruction.[14] Further, teachers can also provide multiple copies of such materials if certain rules regarding length, spontaneity, and cumulative effects are met and if each copy includes a notice of copyright.[15] However, these rules apply to in-person teaching and not online courses,[16] and the U.S. Copyright Act and accompanying guidelines regarding the act were all drafted in the 1970s, decades before the Internet began playing a vital role in how students learn.
The Technology, Education, and Copyright Harmonization (TEACH) Act of 2002 provides further and more modern clarification regarding online teaching materials, which is sure to be of helpful use during this time, when teachers and students alike have become more reliant on technology to stay on top of their work. The TEACH Act of 2002 states that certain materials that are displayed in an online classroom are exempt from copyright infringement under the following requirements: (1) the presentation of materials is done through a teacher’s instruction, (2) the content is a part of the instructional activities of the school, university, or institution, (3) the work is part of the teaching content of the transmission, and the (4) transmission is made only for students enrolled in the course.[17] Since the TEACH Act was enacted more recently and applies more directly to online learning, it is recommended that school officials and instructors take a close look at the provisions to ensure they are abiding by U.S. law.
It seems that with all of these potential defenses, teachers, instructors and school officials may have the best luck with arguing that their utilization of other people’s materials constitutes fair use. Courts typically examine the four factors of the fair use doctrine holistically when making their assessment, and the very first factor is the “purpose and character of the use, including whether [it] is of a commercial nature or is for nonprofit educational purposes.”[18] In that case, the court ruled that publishers of a college social psychology textbook that reprinted material from a copyright owner’s psychological instrument known as the ‘Love Scale’ met their burden of showing that their use of the scale was fair use. In this case, the court stressed that the factors “are neither exclusive nor should any one factor be determinative. Rather, the factors should be considered “in light of the purpose of the fair use doctrine: to prevent strict enforcement of the copyright law when its enforcement ‘would inhibit the very Progress of Science and useful Arts that copyright is intended to promote.”[19] In terms of the first factor (purpose and character of the use), the court ruled that because the college textbook was “circulated within an educational setting for the purposes of teaching and higher learning” and that it was productive, the first factor was met. The court also found the second factor (nature of the work) was met because the reproduction of the Love Scale was previously published and the reproduction was scientific and scholarly in nature. Then, the third factor (the amount and substantiality borrowed) tipped in favor of the publishers because the Love Scale was only a small portion of the textbook, and with the fourth factor (effect of the use upon the potential market), the court found there was no threat to the market value of the original work. This is because the original work was published numerous times from the 1960s until the 1970s, and the court ruled that the textbook’s one-page mention of the Love Scale in a 650+ page text did not create “any meaningful likelihood of future harm to the Love Scale markets.”[20] As such, the court held that the publishers met their burden of fair use. In Cambridge University Press v. Albert, the publishing house sued for copyright infringement against various members of board of regents of a state university system, for allegedly allowing unlicensed portions of copyrighted books to be electronically available to students.[21] In that case, the Eleventh Circuit ruled that the district court’s interpretation of whether the first and fourth factor of the fair use doctrine were satisfied was correct.[22] In Cambridge, the Eleventh Circuit stated that the fourth factor tipped in favor of the academic publisher, because the University used verbatim copying that served the same intrinsic purpose for which the works had been originally published, which contributed to the “threat of market substitution” (i.e., the original works would be rendered potentially useless because people can find the exact copy in the distributions the board made).[23] As such, the Eleventh Circuit ruled that the district court should hold that factor four disfavors fair use for 31 of the 48 excerpts of the copies, yet when discussing the first factor (the purpose of the work), the court stated: “On the first factor, we agreed that ‘the nonprofit educational nature’ of the University’s use favored the fair-use defense.”[24] This case shows that the purpose of utilizing material for educational reasons gives borrowers strong leeway, but courts will not just end their inquiry there – rather, they will look at the entire set of factors and make their assessment considering all of the facts as a whole. Similarly, in the case of Tresóna Multimedia, LLC v. Burbank High School Vocal Music Association, a copyright owner of four songs brought an infringement action against a high school, stating that the high school did not obtain a license for use of the owner’s sheet music for their school choir performance.[25] The court began with their analysis of the first factor, stating: “Carroll’s use of the musical work was in his capacity as a teacher in the music education program at Burbank High School. Such an educational use weighs in favor of fair use.”[26] Yet the court still continued its analysis of all three other factors, stating that: the second factor went against a finding of fair use because the original arrangement of the song was creative, but that the third factor tipped in favor of the school because its rearrangement of the song “did not simply copy several lines from one chorus of the song and repeat it, but embedded that portion into a larger, transformative choir showpiece that incorporated many other works.”[27] And finally, the fourth factor also weighed in favor of the school as well, because the court stated that using small portions of the original song in the choir production would not threaten the original song’s market value: “It is difficult to see how even widespread and unrestricted use of the chorus, in the context of nonprofit show choir performances, could displace the market for sheet music for the entire song.”[28] As such, the Ninth Circuit ruled that the school’s use of the song constituted fair use. All of these cases seem to be sending the same message in their analysis: courts look at the four factors of the fair use doctrine holistically, and if it can be shown that a majority of the factors are weighed in favor of the teachers borrowing certain materials, then those educators should be able to utilize works in more freely.
But how would these rulings apply to teachers utilizing materials in webcasts, webinars, and their general online classrooms? Firstly, most courts would find that the first factor would be met, since a teacher would be generally using borrowed material for their courses and that would be deemed as an “educational purpose,” similar to the cases above. Yet, as Tresóna points out, just because a use is educational does not mean it is automatically protected from a finding of infringement – it will strengthen a teacher’s argument if the copying of the work adds something new or if the new work supersedes the objects of the original creation. Teachers should be aware that even if they are using material for the purposes of educating their students, they should also ensure they are interweaving the use of the work with their own input or lessons as well. In regard to the second factor, courts typically lean in favor of the borrower of material if the material used comes from factual works such as biographies rather than fictional works, since distribution of facts or information generally benefits the public.[29] So, it would benefit an educator to rely more heavily on work that is based in non-fiction, rather than plays, novels, or other similar creative works. In regard to the third factor, courts typically look at the amount and substantiality of the portion used in relation to the entire copyrighted work: simply put, the less actual text or content you use from the copyrighted work, the better (i.e.: utilizing a small paragraph in your class webinar would be more likely to be seen as fair use rather than re-printing an entire book). Yet, as Tresóna points out, even “entire verbatim reproductions are justifiable where the purpose of the work differs [enough] from the original.”[30] In that case, the school’s re-arrangement from a song showed that it used the copyrighted portion and embedded it into “a larger, transformative choir showpiece that incorporated many other works.”[31] If a teacher uses only portions of a copyrighted piece and includes it as a part of a greater body of work, then it is likely that fair use will be seen. In regard to the last factor, courts look at whether market value of the work would be put at risk if someone borrows it for educational purposes – courts are more likely to find fair use if people interested in getting the copyright owner’s product would not find this need met by purchasing the allegedly infringing product and if the copying work performs a different function from the copyright owner’s. In Tresóna, the purposes of both works did not intersect and a nonprofit show choir performance could not displace the entire song in the marketplace – as such, a teacher should ensure that the purpose of their work is not similar to the copyright owner’s and demonstrate that their borrowed work is not a replacement of the original.
In these times, it is critical for instructors, professors, and teachers to know their rights when it comes to what, when, and how they are able to display content in this new world of online classrooms. Since it looks probable that New York will continue to use online teaching for at least part of the time in public schools, colleges, and universities all across the state, knowing the ins and outs of copyright law as we adjust to this new type of learning will provide a better and safer environment for all.
Elizabeth Vulaj is an attorney admitted to practice in New York and New Jersey, with prior articles published in The New England Law Review, Law360, and the Santa Clara High Technology Law Journal. She practices extensively in commercial litigation and intellectual property law and holds a J.D. from CUNY School of Law, as well as an M.A. in journalism from New York University and a B.A. in journalism from SUNY Purchase.
[1] Michael Gold and Matt Stevens, What Are the Phases of New York’s Reopening Plan?, N.Y. Times, July 28, 2020, https://www.nytimes.com/article/new-york-phase-reopening.html.
[2] Pia Ceres, Colleges Gear Up for an Uncertain Fall Semester Online, Wired, July 6, 2020, https://www.wired.com/story/colleges-move-to-online-learning-fall-2020/.
[3] United States Copyright Office, FAQs: Definitions, https://www.copyright.gov/help/faq/faq-definitions.html.
[4] Kevin T. Richards, Webcasting in the Time of COVID-19: Copyright Implications of Remote Worship & Distance Learning, Congressional Research Service Legal Sidebar, April 3, 2020, https://crsreports.congress.gov/product/pdf/LSB/LSB10440.
[5] Id.
[6] Id.
[7] Ann Potter Gleason, You Streamed What? Copyright Infringement Pitfalls During COVID-19, National Law Review, May 29, 2020, https://www.natlawreview.com/article/you-streamed-what-copyright-infringement-pitfalls-during-covid-19.
[8] Id.
[9] Rich Stim, Measuring Fair Use: The Four Factors, Stanford Univ. Libraries, Copyright & Fair Use, https://fairuse.stanford.edu/overview/fair-use/four-factors/.
[10] Id.
[11] Id.
[12] 17 U.S.C. §110.
[13] Id.
[14] United States Copyright Office, Reproduction of Copyrighted Works by Educators and Librarians, Aug. 2014, https://www.copyright.gov/circs/circ21.pdf.
[15] Id.
[16] Jennifer Debrow and Kathryn Nash, Copyright and Distance Learning in the COVID-19 Environment, JD Supra, April 21, 2020, https://www.jdsupra.com/legalnews/copyright-and-distance-learning-in-the-47592/.
[17] Ann Potter Gleason, You Streamed What? Copyright Infringement Pitfalls During COVID-19, Nat’l Law Review, May 29, 2020, https://www.natlawreview.com/article/you-streamed-what-copyright-infringement-pitfalls-during-covid-19.
[18] Rubin v. Brooks/Cole Pub. Co., 836 F. Supp. 909, 915–16 (1993).
[19] Id. at 916.
[20] Id. at 921.
[21] 906 F.3d 1290 (2018).
[22] Id.
[23] Id. at 1295.
[24] Id. at 1295.
[25] 953 F.3d 638 (2020).
[26] Id. at 648.
[27] Id. at 651.
[28] Id. at 652.
[29] Rich Stim, Measuring Fair Use: The Four Factors, Stanford Univ. Libraries, Copyright & Fair Use, https://fairuse.stanford.edu/overview/fair-use/four-factors/.
[30] 953 F.3d at 650.
[31] Id. at 651.
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