Fair use has been busy the last few months and the abrupt shift to online instruction last spring was really only the beginning. As academic institutions move into the fall 2020 semester there will be, potentially, more college students learning remotely than face to face. The unprecedented events surrounding covid-19 and the move to online instruction has forced a reckoning of sorts in terms of the expansiveness of fair use in education, especially now when most education is happening virtually.
Using copyrighted materials in classrooms and teaching environments is confusing enough for most academics. The added layer of a pandemic forcing most courses online hastened the realization that copyright law has not successfully adapted to online instruction generally. Fair use specifically has only added to the uncertainty since most of our understanding of it is predicated upon its use in face to face teaching.
Fair use and its application involve an examination of four factors that the courts have used to determine if use of copyrighted materials is indeed permissible:
- the purpose and character of the use
- the nature of the copyrighted work
- the amount and substantiality of the portion used
- the effect of the use upon the potential market
Much of the case law and factual scenarios upon which they are predicated involve issues related to duplication and dissemination. The law surrounding fair use, which existed in the common law since the founding of the republic was codified in 1976 via the Copyright Act of 1976, 17 U.S.C. § 107. At that time the main motivation for clarity in fair use was the threat of cheap duplication by photocopying. Fair use, and the cases that interpreted, applied and construed section 107 of the Copyright Act, was mostly concerned with physical duplication. Fast forward to 2020, a pandemic and online classes featuring digital content and those same four factors seem less clear than ever before.
A group of librarians highlighted this lack of clarity with a Public Statement of Library Copyright Specialists: Fair Use & Emergency Remote Teaching & Research. Their statement reimagines the four factors as providing a stronger and more permissive interpretation of fair use in order to accommodate the unique societal and policy needs of living during the pandemic.
“It is evident that making materials available and accessible to students in this time of crisis will almost always be a fair use. As long as we are being thoughtful in our analysis and limiting our activities to the specific needs of our patrons during this time of crisis, copyright law supports our uses. The fair use doctrine accommodates the flexibility required by our shared public health crisis, enabling society to function and progress while protecting human life and safety.”
Which is consistent with the original common law understanding of fair use as a check on author’s rights when a significant societal need justified it. In other words, concerns about an author’s exclusive rights will always take a back seat to societal needs especially when the use is educational and has little to no impact on the commercial value of the copyrighted material.
Reimagining fair use to broadly facilitate the use of copyrighted materials is also consistent with the history of fair use. Fair use is much more than section 107 of the Copyright Acts. It is predominantly written in the cases that are brought to the courts to consider the specific kinds of factual scenarios where fair use is allowed. That’s an important point: Fair use is not static but is heavily dependent upon the facts surrounding that use. And there are two recent cases that indicate that fair use might be opening up much more widely for educators teaching online.
In Tresóna Multimedia, LLC v. Burbank High School Vocal Music Ass’n (9th Cir. Mar. 24, 2020)the court held that fair use was permissible despite the fact that the copyrighted material was creative (songs), publicly performed by the school choir while using substantial portions of the music, or the so called ‘heart’ of the copyrighted material. The court based its reasoning primarily upon the educational use and the lack of any definable economic losses on the part of the copyright holders. The interpretation, when viewed broadly, suggests that courts are open to a more expansive view of fair use in educational environments including public performances.
In Tresóna, the 9th circuit specifically looked to “the limited and transformative nature of the use [of the song by the choir] and the work’s nonprofit educational purposes in enhancing the educational experience of … students.” And while there are no fair use cases to date that define the use of copyrighted content in an online course as transformative per se, the transformative nature of that use is clear, provided of course, that the copyrighted work was not created specifically for an online course.
The same week of the Tresóna decision, the Supreme Court ruled in Allen v. Cooper (US Mar. 23, 2020) that states, and by extension public schools and universities, could not be sued for any copyright infringement due to sovereign immunity. In what was always considered a bit of a weakness in the copyright law, the Copyright Remedy Clarification Act (“CRCA”), 17 U.S.C. § 511 (1990), was passed by congress as a means to provide clarification for those prosecuting a claim of infringement. One of the main ‘loopholes’ eliminated by the CRCA was language that prevented states from raising sovereign immunity as a defense when sued for copyright infringement. Allen ruled that barring states from claiming sovereign immunity in the context of copyright infringement was unconstitutional. And while this decision wasn’t necessarily fair use related, the reaction was definitely a product of our times and the pandemic. In normal circumstances you would be reasonable in the expectation that Congress would fix the situation with a constitutionally acceptable means of disallowing sovereign immunity as a defense to copyright infringement. In reality nothing like that has happened nor is it likely to in the year ahead.
All of this taken together suggests that fair use in educational environments is likely to expand even further as a result of the Tresóna and Allen decisions. The 9th Circuit’s finding in Tresóna of inherent ‘tansformativeness’ when using copyrighted content in educational environments along with the Supreme Court’s decision in Allen barring state schools from any claim of infringement based upon sovereign immunity, will no doubt open the proverbial Pandora’s box or send us down the slippery slope, depending upon your preferred metaphor. And if there’s one thing we know about jurisprudence in America, once a right is given the courts are loathe to take it away. And right now the rights given to educators by these two cases are quite substantial.
If you’d like to learn more about copyright in online teaching environments self-enroll in the Institute for Research and Information Studies’ online self-paced course on Copyright and Information Ethics.
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