Copyright and Licensing in the Time of COVID-19
By Roy Kaufman
In March 2020 we were instructed to work from home due to concerns over the pandemic. The same scenario played out for many employees who could perform their jobs remotely across the U.S. and around the world. This was the case for K-12 teachers, administrative staff and students as well.
Back in March, copyright was not top-of-mind for many people. Health and educational continuity took precedence. Many publishers waived copyright fees for use of materials in distance learning, made teaching resources freely available, and aggregated useful content. Plenty of content was used without permission of the copyright owners – some under legitimate “fair use,” some out of lack of knowledge, and some opportunistically.
During a recent webinar on customer curriculum and copyright we conducted with our partner XanEdu, a custom course materials provider, attendees across the K-12 spectrum demonstrated a real need for information about copyright – from the duration of copyright to what is in the public domain, from fair use to the TEACH Act, to questions about whether they own the rights to the materials they create for education use. The fact is copyright is complex and the massive shift to distance learning has only compounded the issue for many educators who just want to do what is right. The need for copyright education was evidenced by the more than 900 people who took the time out of their day to attend the webinar.
It’s against this backdrop that I offer this post to help K-12 educators better understand copyright, how it applies to distance learning, and how they can manage copyright compliance for the use of published materials in this new paradigm.
Trends that Emerged in the First Half of 2020
In terms of licensing and reuse of copyrighted content, the period of March-June 2020 saw five major trends:
- Print photocopying vastly increased as students lost access to materials in the classroom
- Online learning platforms and other EdTech tools gained traction
- Publishers created no-cost licenses to enable teaching under these new circumstances
- More assessments moved online
- Teachers taught using materials they copied or posted online, sometimes under paid or free licenses, sometimes under fair use, and sometimes by committing infringements that rightsholders were willing to ignore
During the summer of 2020, we moved from the triage educational policies of early COVID-19 into the new normal of extended remote and blended learning. For Copyright Clearance Center (CCC), this resulted in an increasing number of queries about copyright, licensing, and practices for universities, schools, and districts as they seek to ensure better compliance.
A Primer on Relevant Copyright Concepts
What is a “license?”
A license is a legal term describing permission given to use property or to exercise rights belonging to another. With intellectual property such as a patent, copyright or trademark, a license is permission given by the owner of exclusive rights to another, who may use such rights under agreed conditions. As such, it is analogous to a lease in real property or to rental of a car.
What is “copyright?”
At the highest level, copyright concerns the exclusive rights of the creator of a work or her designees to (among other rights) make copies of that work. The law in the U.S. and most other countries grants copyright protection to a creator for a limited time in order to encourage the creation and dissemination of new works. In relevant part, copyright law governs the making of photocopies, the posting of materials online or in repositories, the reading of materials to others in a public forum, and other forms of sharing, such as emailing, creating assessments based on works, and adapting written materials into plays and songs.
These activities are among the “bundle of rights” given to the creator of a work upon creation and can only be performed by others with permission (which can be express, statutory or implied) or pursuant to a legal “exception” from those rights – for example, the privilege to make limited copies of articles for interlibrary loan or “fair use.” Copyright in the U.S. does not govern the private reading of physical materials or the transfer and lending of physical materials, although it does in certain other countries. In the US, the copyrights in any works created before 1925 (and in some works created between 1925 and 1964) have expired and, separately, in the public interest the law waives copyright rights in works of the U.S. federal government – as a result, all of these materials are in the “public domain.”
What is “fair use?”
In the U.S., “fair use” is the primary exception applicable to reuse of textual copyright materials without the creator’s consent. It is an affirmative defense. In other words, it is not a right; rather, it is a legal defense for engaging in an activity that would otherwise be infringing. Determining whether a particular use is fair use is fact dependent, and the same activity can be a fair use or not based on the context of the use or the identity of the user. For example, when a student photocopies a newspaper article for a homework assignment, that is almost certainly fair use. A teacher might also photocopy a recent article for her class under fair use, but if she asks for those copies to be made by a for-profit copy shop, the copy shop is likely to need a license. If the article becomes part of a required curriculum for the school district, permission for that wide use by students and faculty is likely to be needed. If it becomes required curriculum year after year, the licensing requirement is even stronger.
How do I determine when a use is a fair use?
Under the fair use doctrine, someone can ordinarily reproduce limited portions of a work for purposes such as commentary, criticism, news reporting, and teaching. However, there are no fixed rules that say that the use of a specific number of words, a certain number of musical notes, or a certain percentage of a work, is automatically a fair use. Everything is determined on a case by case basis.
In determining whether to apply fair use to an infringement, the courts look at four factors set out in the statute (although even the statute itself says that these factors are “non-exclusive” – meaning that a judge can take other, similar factors into account as well):
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- The nature of the copyrighted work;
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- The effect of the use upon the potential market for or value of the copyrighted work.
Please note that no one of these factors is determinative of fair use; the judge has to analyze all four factors individually and then together, possibly giving them different weights depending upon the circumstances, in order to reach a conclusion that a use was or was not a fair use.
As the U.S. House of Representatives indicated in its report on fair use and classroom reproduction, uses are more likely to be fair if they are brief, non-systematic and spontaneous. Regular, repeated uses in classrooms, and required reading for standard curricula, typically require permission. More information about this issue can be found in a helpful document from the US Copyright Office entitled: Reproduction of Copyrighted Works by Educators and Librarians (https://www.copyright.gov/circs/circ21.pdf).
What is the TEACH ACT?
Signed by President George W. Bush on November 2, 2002, the Technology, Education, and Copyright Harmonization (TEACH) Act was the product of discussion and negotiation among academic institutions, publishers, library organizations and Congress. It provides additional copyright exceptions for use of certain materials in distance learning, subject as well to certain compliance obligations necessary to avail oneself of the exceptions. For example, in order to avail itself of the TEACH Act, an institution must have implemented a reasonable copyright compliance policy. More information about the TEACH Act can be found here: https://www.copyright.com/wp-content/uploads/2015/04/CR-Teach-Act.pdf
What is Creative Commons?
Creative Commons is an organization that creates standardized open licenses that any creator is invited to apply to his or her works (https://creativecommons.org/). These licenses – the scope of which vary from narrow to wide – are often used on Open Educational Resources. Materials with a Creative Commons license can be used without further written consent of the creator (who has identified the scope of the license granted by means of the Creative Commons license identified on the materials themselves), but only pursuant to the terms of the specific license. Some Creative Commons licenses allow any reuse, while others limit, for example, the creation of derivative works or commercial reuse; it is important to check which license has been applied to materials before using them.
How do I obtain copyright permission?
For text, copyright permission can typically be obtained through an author, her agent, or her publisher. Many rights can also be obtained through Copyright Clearance Center. Copyright-compliant photocopy providers such as XanEdu will typically handle permission needs on your behalf, for both print and secure digital use.
Whether materials are used by individual permission or under Creative Commons license, it is important to maintain good records of the source and permissions. Failure to do so can create liability and compliance headaches and can also cost districts extra money if they pay for something more than once.
What does this mean?
The urgency with which schools needed to pivot to online learning seems to have led to short term lack of compliance – whether under fair use or simply as “tolerated infringements.” With the emerging “new normal,” the calculus shifts. COVID-19 has exacerbated certain aspects of an already inequitable system of education. This is especially true in private schools and wealthy public schools in 1-to-1 districts, where students have electronic devices and internet access. These districts have fared relatively well, while districts serving poorer communities have needed to revert even more to photocopying, often distributing photocopies along with food.
Fortunately, photocopying is relatively inexpensive, and low-cost materials – whether they are in the public domain, are commercially-published materials protected by traditional copyright or are Open Educational Resources (OERs) protected by Creative Commons licenses or otherwise – can make up the bulk of the copies. Also, many publishers have been lowering copyright license fees to enable reuse while students are home.
To state the obvious, no one knows when COVID-19 will pass, and we can fully return to pre-pandemic modalities of instruction. The longer the pandemic lasts, the more important it becomes for the education community to learn about copyright, and the more important it becomes for the creative community to continue to offer easy licensing solutions that meet the ever changing – and indeed not yet known – needs of the classroom.
About Roy Kaufman
Roy Kaufman is Managing Director of both Business Development and Government Relations for Copyright Clearance Center. Prior to CCC, Kaufman served as Legal Director, John Wiley and Sons, Inc. He is a member of, among other things, the Bar of the State of New York, the Author’s Guild, and the editorial board of UKSG Insights. Kaufman also advises the US Government on international trade matters through membership in International Trade Advisory Committee (ITAC) 13 – Intellectual Property. He was the founding corporate Secretary of CrossRef, and formerly chaired its legal working group. He has written and lectured extensively on the subjects of copyright, licensing, open access, text/data mining, new media, artists’ rights, and art law. Kaufman is Editor-in-Chief of Art Law Handbook: From Antiquities to the Internet and author of two books on publishing contract law. He is a graduate of Brandeis University and Columbia Law School.