Fair Use Fears in Online Course Development
It has become very common for online courses to include the use of images, videos, music, and text from copyright materials. Some professors, instructional designers, and students are quick to show no fear and claim that the use of copyright materials is covered under the Fair Use Doctrine as defined in Section 107 of the U.S. Copyright Act (Title 17, United States Code § 16).
However, there has been confusion over the years as to what constitutes Fair Use of copyright materials in online courses. It is not as simple as believing that all use for educational purposes is Fair Use and not copyright infringement.
One approach that is popular with some professors and students is to avoid the question of Fair Use altogether by using sources that are available through Creative Commons (CC), as Open Educational Resources (OER), or that are in the Public Domain. This approach however is not ideal to the learning and sharing of ideas that benefit culture and society as outlined in the Fair Use doctrine. It only results in the protection of copyright material for the copyright holder beyond what is provided for in copyright law.
A Creative Commons license granted by a copyright holder as a concept is a welcome way to increase access to copyright materials that allows for the free distribution of a copyrighted work. However, it is reliant on the copyright holder deciding which works to share.
The goal of professors, instructional designers, and students should be to gain a better understanding of the Fair Use doctrine and all of their options when it comes to the use of copyright materials in online courses.
There are a number of websites that provide guidance on the Fair Use Doctrine. For example, The University of Rhode Island’s University Libraries provides the comprehensive website Fair Use and Copyright for Online Education: Copyright which clearly defines the difference between Copyright and Fair Use and gives case examples for the fair use of images, videos, music, and text from copyright materials.
How do you educate faculty on the use of copyright materials, Creative Commons licenses, and what constitutes Fair Use?
6 thoughts on “Fair Use Fears in Online Course Development”
Tod, thanks for the enlightening post! Having only worked in a corporate setting, I was unaware of the Fair Use provision in copywrite law. The URI page you linked to was super helpful in explaining the different factors to consider when evaluating a work’s Fair Use. The ‘transformative’ aspect of Fair Use is an interesting one. It causes me to wonder about the use of sampling in music and whether remixing audio is type of transformative use. I’ve bookmarked this as a resource to refer back to when developing future ID projects, as I’d really like to understand all the options available to me.
Thank you, Beth, I tried to link to the best websites for learning more about the use of copyright materials, Creative Commons licenses, and what constitutes Fair Use. In the corporate world, there is a different, unrelated fair use provision called trademark fair use, which you may also find interesting because it’s fair use is based either the nominative or descriptive use of a trademark. As far as the fair use of music, that is the one area where I think there is the most confusion in regards to the fair use of copyright materials.
Tod, this is a concise and informative post on something that is often confusing and unclear. You bring up a fascinating point in your close, the question about educating faculty. Your post takes me back to our Paulo Freire reading at the end of last semester. I especially appreciated the link to the University of Rhode Island site. Interesting and informative post!
Thank you, Donna. I definitely think that there is the need to educate faculty on the use of copyright materials, Creative Commons licenses, and what constitutes Fair Use. I am glad you found the University of Rhode Island link useful. I really liked how they included actual case examples for the fair use of images, videos, music, and text from copyright materials.
Tod thank you for raising this important issue. I have always assumed that anything with a copyright stamp cannot be used without permission. In fact, in my organization we are moving from simply putting a (c) copyright on our intellectual property, to filing for copyright registrations from the US Copyright Office. This, I am told provides the owner of the property additional options to pursue legal action should an unauthorized use of the material occur. However, the materials are primarily educational so I wonder to what extent they could be used by others under the fair use exception. I am going to spend more time on the RI website to explore Fair Use from both sides of the educational program development process!
Hi Annemarie, I also have always wondered about copyright and fair use for educational purposes. I think you will find the RI website really helpful. The one area where I still tread even more lightly is the use of music. I plan to write a follow up blog on that topic.