Public Statement of Library Copyright Specialists: Fair Use & Emergency Remote Teaching & Research

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March 13, 2020

This Statement is meant to provide clarity for U.S. colleges and universities about how copyright law applies to the many facets of remote teaching and research in the wake of the COVID-19 outbreak. We write this as copyright specialists at colleges, universities, and other organizations supporting higher education in the U.S. and Canada who work every day with faculty, staff, and librarians to enable them to make ethical and legal choices about copyright issues in online teaching.

The United States is in a time of crisis. As of this writing, more than 200 universities and colleges have moved to remote teaching. These moves aim to promote public health by slowing the spread of the disease, while maintaining at least some of the important functions higher education plays in teaching, learning, and research. We have heard concerns that copyright may pose impediments to a rapid shift to remote instruction, or conversely, that copyright is not relevant. While legal obligations do not automatically dissolve in the face of a public health crisis, U.S. copyright law is, thankfully, well equipped to provide the flexibility necessary for the vast majority of remote learning needed at this time.

Fair Use

Copyright law in the United States is made to support teaching, research, and learning. This stems from its Constitutional purpose, which is “to promote the Progress of Science and the useful Arts.” ^[1] One critical feature of copyright law is fair use, ^[2] a flexible users’ right that allows the use of copyrighted works without permission. It accommodates a wide variety of circumstances, including new and rapidly evolving situations. In the words of one of our colleagues, April Hathcock, “fair use is made for just these kinds of contingencies.”

To analyze whether a particular use is fair, courts balance four factors. The “heart of the fair use inquiry” lies in the first factor – the purpose and character of the use. ^[3] Courts favor uses where the purpose is to benefit the public, even when that benefit is not “direct or tangible.” ^[4]

Even under normal circumstances, courts favor educational uses because of their broad public benefits. ^[5] While there are no fair use cases squarely addressing copying to help minimize a public health crisis, the other wide variety of public benefits cited by courts leads us to believe that this purpose would weigh extremely heavily in favor of fair use. For example, in the Authors Guild v. HathiTrust case, ^[6] the court made it clear that providing access to persons with disabilities was a strong public interest that weighed heavily in the fair use assessment. Similarly, other courts have found that allowing reproduction of the Zapruder film documenting Kennedy's assassination was in the public interest, ^[7] and allowing redistribution of leaked internal memos about problems with electronic voting machines also favored fair use. ^[8]

The benefit to the public in providing remote coursework is obvious when it enables teaching to continue in the face of social distancing measures or quarantine, or when access to physical library materials is impossible. The public benefit of these measures is without a doubt of at least equal importance as in these cases.

The second factor examines the nature of the work used—is it more factual or creative, published or not? In cases like this, the second factor “has rarely played a significant role in the determination of a fair use dispute.” ^[9] For remote teaching in the COVID-19 situation, the analysis should be the same.

The third fair use factor examines the “amount and substantiality” of the work used. Per the Supreme Court, this is a flexible standard that is situation-specific. The third factor is not a mechanical application of a rule such as “no more than 10%” or “1 chapter.” ^[10] The question is whether “the quantity and value of the materials used ... are reasonable in relation to the purpose of the copying.” ^[11] For copies made to support rapid adoption of remote teaching, users should be thoughtful about this factor, but not agonize over it: a use can be fair as long as it reproduces what is reasonable to serve the purpose.

The fourth factor is “the effect of the use upon the potential market for or value of the copyrighted work.” This factor “requires a balancing of the benefit the public will derive if the use is permitted” versus “the personal gain the copyright owner will receive if the use is denied.” ^[12] While in normal circumstances there may be licensing markets for some items, the spontaneity of a move to remote teaching under emergency circumstances reduces the importance of this factor. Checking for and relying on licensed alternatives bolsters the case for fair use under the fourth factor, but lack of time to check for licenses should not be a barrier to meeting the needs of our communities.

Campuses can also consider approaches to mitigate potential risk. ^[13] Campuses should restrict access to course materials only to students, instructors, or teaching assistants enrolled in the course. Further, they should provide content only for the period of time needed, and excerpt materials when pedagogically appropriate. This limits the possibility of market harm. Ultimately, the purpose of copyright law, “promot[ing] the Progress of Science and useful Arts,” is served by engaging in these time-limited, purpose-specific uses.

It is evident that making materials available and accessible to students in this time of crisis will almost always be a fair use. As long as we are being thoughtful in our analysis and limiting our activities to the specific needs of our patrons during this time of crisis, copyright law supports our uses. The fair use doctrine accommodates the flexibility required by our shared public health crisis, enabling society to function and progress while protecting human life and safety.

We also encourage campuses to begin contemplating the longer-term needs this situation presents. While fair use is absolutely appropriate to support the heightened demands presented by this emergency, if time periods extend further, campuses will need to investigate and adopt solutions tailored for the long-term.

DMCA and Video

While fair use offers a clear path for most uses in rapidly shifting to remote teaching, some uses raise other concerns. In particular, copying a full-length movie or television episode from a DVD for use in teaching may require circumvention of technical protection measures, which is prohibited under the Digital Millennium Copyright Act (“DMCA”). ^[14] Like fair use, the DMCA is designed with flexibility in mind—it empowers the Librarian of Congress to create exemptions allowing circumvention under certain circumstances. Unfortunately, the current exemptions ^[15] extend only to copying “short portions” of motion pictures for use in certain types of teaching, not to copying entire works, even when doing so is clearly fair use. Courts disagree ^[16] on whether circumvention violates the DMCA when the underlying use is non-infringing (for example, because of fair use) and on what constitutes circumvention. Individual institutions will need to make their own assessments of this issue in consultation with their legal counsel or administration.

When possible, we encourage using video through licensed services. From Netflix, Hulu, and Amazon Prime to PBS and cable channels, many films are readily available, either for free or after payment of a relatively low fee for access.

Rightsholders

Some creators and other copyright owners may find this analysis concerning. We offer this analysis from a place of deep respect for creators—and to provide a practical lens through which our colleagues working as instructors and in instructional support positions can keep copyright in mind despite the seismic changes they’re implementing in support of public health.

We encourage the use of already-licensed online content, openly licensed, and public domain alternatives, and working with content vendors to find mutually agreed-on ways to expand existing access to support social distancing for instruction and research. We commend vendors who have stepped up to provide free access to certain resources through the end of the current academic term. ^[17]

See more Resources on Copyright & Emergency Remote Teaching & Research

Signatories

(Institutional affiliations listed for identification purposes only)

Emilie Algenio, Copyright/Fair Use Librarian, Texas A&M University Libraries

Sara R. Benson, Copyright Librarian, University of Illinois at Urbana Champaign

Josh Bolick, Scholarly Communication Librarian, University of Kansas Libraries

Justin Lee Bonfiglio, Copyright Specialist, University of Michigan Library

Brandon Butler, Director of Information Policy, University of Virginia Library

Will Cross, Director, Copyright & Digital Scholarship Center, North Carolina State University

Kyle K. Courtney, Copyright Advisor, Harvard Library

Kate Dickson, Copyright & Licensing Librarian, University of North Carolina, Charlotte

Amy V. Dygert, Director of Copyright Services, Cornell University

Will Edmiston, Librarian for Copyright & Reserves, The New School

Sandra Aya Enimil, Copyright Services Librarian, The Ohio State University

Ana Enriquez, Scholarly Communications Outreach Librarian, Penn State University

Maryam Fakouri, Copyright Librarian, University of Washington

Sharon E. Farb, Associate University Librarian and Chief Policy Strategist, UCLA

Donna L. Ferullo, Director, University Copyright Office, Purdue University

Katie Fortney, Copyright Policy & Education Officer, California Digital Library

Christine Fruin, Scholarly Communication and Digital Projects Manager, Atla

Agnes Gambill, Head of Scholarly Communications, Appalachian State University

Anne Gilliland, Scholarly Communications Officer, University of North Carolina, Chapel Hill

Liz Hamilton, Copyright Librarian, Northwestern University Libraries and Northwestern University Press

Kiowa Hammons, Rights Clearance Manager, The New York Public Library

Dave Hansen, Associate University Librarian & Lead Copyright and Information Policy Officer, Duke University

April M. Hathcock, Director of Scholarly Communications & Information Policy, New York University

Brandy Karl, Head of the Office of Scholarly Communications and Copyright, Penn State University

Molly Keener, Director of Digital Initiatives & Scholarly Communication, Wake Forest University

Mary Lee Kennedy, Executive Director, Association of Research Libraries

Cindy Kristof, Head, Copyright & Scholarly Communication, Kent State University

Michael Maire Lange, Copyright & Information Policy Specialist, UC Berkeley

Yuan Li, Scholarly Communications Librarian, Princeton University Library

Carla Myers, Coordinator of Scholarly Communications, Miami University

Rina Elster Pantalony, Director, Copyright Advisory Services, Columbia University Libraries

Laura Quilter, Copyright and Information Policy, University of Massachusetts Amherst

Rachael Samberg, Scholarly Communication Officer & Program Director, UC Berkeley

LeEtta Schmidt, Copyright and Intellectual Property Librarian, University of South Florida

Nancy Sims, Copyright Program Librarian, University of Minnesota Libraries

Kevin L Smith, Dean of Libraries, University of Kansas

Stephanie Towery, Copyright Officer, Texas State University

Nate Wise, Intellectual Property Office Manager, Brigham Young University - Idaho

Timothy Vollmer, Scholarly Communication & Copyright Librarian, UC Berkeley

Micah Zeller, Head of Scholarly Communication Services, Washington University in St. Louis

Katie Zimmerman, Director of Copyright Strategy, MIT Libraries

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Endorsers

(Institutional affiliations listed for identification purposes only)