Copyright Considerations in Shifting your Courses from In-person to Online

While pedagogical and technical issues make the shift from in-person to online teaching challenging, copyright is not a big additional area of worry! Most of the legal issues are the same in both contexts. If it was okay to do in class, it is often okay to do online, especially when your online access is limited to the same enrolled students.

Recording video of yourself, live-casting lectures, etc.

Slide Images

If it was legal to show slide images in class, it is likely legal to show them to students via live video conferencing or in recorded videos. This may be a surprise if you have heard that there is a big difference between class lecture slides and online conference slides - but the issue is usually less offline versus online, than a restricted versus an unrestricted audience. As long as your course is being shared through course websites limited to the same enrolled students on Canvas, the legal issues are fairly similar.

Many instructors routinely post a copy of their slides on Canvas for students to access after in-person course meetings, which also likely does not present any new issues after online course meetings.

In-lecture use of audio or video

Here, the differences between online and in-person teaching can be a bit more complex. Playing audio or video off of physical media during an in-person class session is presumptively legal under a provision of copyright law called the Classroom Use Exemption (17 U.S.C. §110(1)). However, that exemption does not cover playing the same media online even if access is limited to students enrolled in your course.

If you can limit audio and video use for your course to relatively brief clips, you may be able to include those in lecture recordings or live-casts under the copyright provision called fair use (see the section on fair use below). For media use longer than brief clips, you may need to have students independently access the content outside of your lecture videos.

Fair Use

Fair use may be used as a defense against a claim of copyright infringement in certain limited circumstances. The following four factors should be assessed in determining whether a use is a fair use:

the purpose and character of the use
the nature of the copyrighted work
the amount and substantiality of the portion used, and
the effect of the use upon the potential market.

The fair use doctrine does not provide clear-cut rules to ascertain whether a certain use qualifies as fair use. The courts evaluate fair use on a case-by-case basis. Fair use is highly subjective and context specific. There is no known formula to ascertain whether a certain predetermined percentage or amount of a work may be used without specific permission from the copyright owner. NJIT recommends that fair use should be used only as a last resort given that the outcome in a case is difficult to predict.

Some factors that weigh against fair use would be, for example, (i) where the substantiality of use is extensive (e.g., an entire annual report of a company, an entire product catalog of a retailer, or more than an insignificant portion of a video game), or (ii) where the owner/proprietor has established a market for the material to be used (e.g., making copies of a commercially available work, such as a textbook, is generally not considered fair use).

The best practice is to seek explicit written permission (not just attribution) from the copyright owner when possible.

Where to post your videos

There may be some practical differences in outcomes depending on where you post new course videos - on the Kaltura platform, it is easy to control access at the level of individual videos, and to connect to your course in Canvas.

Course readings and other resources

Hopefully, by mid-semester, your students have already gotten access to all assigned reading materials.
If you want to share additional materials with students yourself as you revise instructional plans, or if you want students to share more resources with each other in an online discussion board, keep in mind some simple guidelines:

It's always easiest to link!

Linking to publicly available online content like news websites, existing online videos, and other publicly available content is not normally a copyright issue. (Better not to link to existing content that looks obviously infringing itself - Joe Schmoe's YouTube video of the entire "Black Panther" movie is probably not a good thing to link to. But Sara Someone's 2-minute video of herself and her best friend talking over a few of the pivotal scenes may be fair use.)

Linking to subscription content through the NJIT Library is also a great option - a lot of our subscription content will have DOIs, PURLs, or other "permalink" options, all of which should work even for off-campus users.

Sharing copies

Making copies of new materials for students (by downloading and uploading files, or by scanning from physical documents) can present some copyright issues, but they're not different from those involved in deciding whether to share something online with your students when you are meeting in-person. It's better not to make copies of entire works. Copying limited portions of works to share with students may be fair use. But the fair use factors described above must be applied before relying on fair use.

Alternatives

Before considering reliance upon the fair use defense, you may wish to consider the following alternatives:

Open Access – Peer-reviewed scholarly research and literature that is openly licensed for sharing. See the searchable database of open access books at https://www.doabooks.org/
Open Educational Resources- http://researchguides.njit.edu/?b=s
Licensed in Creative Commons – a standardized way to grant copyright permissions for creative and academic works (https://ccsearch.creativecommons.org-search engine)
ArtStor- an image resource for educational use. Only export or download its content to a password-protected, access-restricted site.

General Guidelines

One generally needs to obtain explicit written permission (not just attribution) to use a third party’s copyrighted material
Limit access to the material to course participants only and make the work available for a limited time
Post only allowable portions of the material
Use several sources, and not just one source
Use the material in a transformative way
Do not use the same material repeatedly each semester or each year- using a work repeatedly may imply that you have sufficient time to obtain permission
Give attribution for every item used
Use a copyright disclaimer, such as “The materials in this course are only for the use of students enrolled in this course for purposes associated with this course and may not be retained or further disseminated. They may be protected by copyright; any further use of this material may be in violation of federal copyright law.”

Adapted from “Rapidly shifting your course from in-person to online” by Nancy Sims, University of Minnesota Libraries, and licensed under a Creative Commons Attribution-NonCommercial License.

(This document is evolving and subject to change. Last updated July 14, 2020.)