Remote Learning & Copyright Law Considerations
In the midst of the coronavirus pandemic, schools across the country are forced to rapidly institute remote or distance learning plans for their teachers and students. While remote learning has the potential to be a worthy substitute for in-class lessons, it can present numerous challenges in terms of copyright law compliance. School administrators and teachers should familiarize themselves with some basic copyright law considerations when posting lessons online.
The Technology Education and Copyright Harmonization Act (TEACH Act) exempts certain performances and displays of copyright-protected works in distance learning environments so long as such performances and displays meet specific requirements. In order to qualify for the exemption, the use must be limited to a specific number of students in an enrolled class; either be for “live” or separate class sessions; be an integral part of the course; include a copyright notice, and the material’s amount must be similar to the type that would normally take place in one live classroom setting. Additionally, schools must establish institutional policies and implement technological controls such as using passwords to ensure that the materials are limited to students enrolled in the class.
So, for example, a teacher posting a reading of a poem to a password-protected remote learning portal — which is limited to students enrolled in his or her class and is for a specific class session — would likely be in compliance with the TEACH Act. However, a teacher posting that same reading on a public video sharing platform such as YouTube would potentially be infringing copyright and the post could be subject to a DMCA takedown (a mechanism where copyright owners can remove their content from a website).
If the requirements of the TEACH Act are not met, the posting of copyright-protected materials online may still be lawful if it qualifies for an exemption under the “fair use” doctrine. Determining whether a post would meet the fair use exemption is often difficult because there are a variety of factors that need to be balanced. In general, the post should provide comments, criticism or a parody of the work. Also, the smaller the amount of the copyrighted material used, the more likely that the post would be considered fair use.
Because these are extraordinary times, J.K. Rowling has recently granted a temporary open license for teachers to post videos of themselves reading aloud from the Harry Potter books onto their school’s secure networks or closed educational platforms. Teachers must follow guidelines that can be found here: www.jkrowling.com/wp-content/uploads/2020/03/TBP-Temporary-Open-License-Schools-2.pdf. Penguin Random House has granted similar permission for “read aloud” of its books. Penguin Random House’s guidelines for such a license can be found here: www.penguinrandomhouse.com/penguin-random-house-temporary-open-license/.
Please do not hesitate to contact our office should you have a copyright compliance-related question. We are here to help!