Much like teaching in the classroom, teaching in blended or fully online courses might make use of a variety of materials ranging from readings, photographs, and images to videos, films, and other recorded performances disseminated in a number of formats. Using these types of materials in course management systems such as Blackboard at UofL affects reproduction, distribution, public performance and public display rights unless the instructor links directly to the materials. The conditions for using these materials in Blackboard is sometimes like using the materials in the classroom and sometimes dramatically different from that activity.
Assessing possibilities for lawfully using copyrighted materials in Blackboard requires learning more about some exceptions in copyright law and understanding alternative strategies in order to avoid copyright concerns:
- Fair use (Section 107 in the copyright statute)
- TEACH Act (Section 110(2))
- Securing permission
- Linking directly to the materials
Fair use provides important opportunities to make use of copyrighted works without seeking permission. This exception to the rights of copyright holders calls upon instructors to make reasonable, good faith decisions in analyzing and then weighing the four factors of fair use for each discrete teaching resource.
The four factors of fair use are:
- Purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
- Amount and substantiality of the portion used in relation to the copyrighted work as a whole.
- Nature of the copyrighted work.
- Effect of the use upon the potential market for or value of the copyrighted work.
Blackboard lessens the potential effect on the market for a copyrighted work by limiting access to necessary instructors and students participating in that class. Instructors should offer “guest access” in Blackboard if at all to only those areas of the course site containing no copyrighted works. The access limits in Blackboard can also demonstrate a commitment to providing copyrighted materials solely for educational purposes. That purpose alone will not support fair use but along with carefully analyzing the other four factors together will support fair use in some circumstances. Read more about Blackboard and copyright...
Understanding fair use is fundamental to making most uses of copyrighted works possible at all in the educational setting. In the absence of fair use or another exception, securing permission to use copyrighted works or finding alternative materials to them is common and often necessary in order to move forward with providing materials to students.
The TEACH Act is a complicated federal statute that requires instructors and their institutions to satisfy numerous practical, policy-based, and technological conditions in order to make lawful uses of copyrighted works online. The TEACH Act (Section 110(2)) along with fair use can provide important opportunities to use copyrighted works in Blackboard provided that the instructor and its institution can satisfy the multiple requirements of the TEACH Act.
More importantly, given ambiguities in the law, identifying whether fair use or the TEACH Act might best excuse a specific use of a copyrighted resource is not always clear. The TEACH Act can work alone, as a complement to fair use, or in combination with it. In many cases, simultaneously evaluating both fair use and TEACH Act possibilities can support the most reasonable decision making.
Core requirements of the TEACH Act address the kinds of works used and how the instructors and their institutions “transmit” them in the course of teaching their classes. The TEACH Act distinguishes between types of copyrighted works and treats categories of them differently in defining conditions of use.
An instructor can perform in Blackboard an entire nondramatic literary or musical work, for example, but that instructor can perform only “limited and reasonable portions” of all other copyrighted works. Thus, as a practical matter, an instructor can show an entire “lawfully made” film or audiovisual work in the classroom, but in Blackboard can stream only “limited and reasonable portions” of a “lawfully made” copy of those same teaching resources.
The TEACH Act permits but also limits the display of any copyrighted work. An instructor may display any copyrighted resources in its entirety but must limit these displays to only amounts comparable to displays the instructor would make in a “live classroom session.” Consequently, instructors can display photographs and images in Blackboard provided that those displays would compare to displays that would have otherwise occurred in an instructor’s comparable live class session.