Copyright
How this will help:
The basics
The copyright law exceptions for teaching are different for teaching online than they are for teaching face-to-face courses. Assumptions about copyright that you may have about teaching in a face-to-face setting may not apply in the same way to online teaching. When you use third-party content (something created by someone else), you need to consider whether copyright law allows you to use the content.
Imagine these situations:
- You have a brief movie clip that you’d like to use in your face-to-face class as a way to illustrate a concept.
- You found an image online that does a great job of illustrating the cycle of poverty.
- You have an article that you’d like to share with your class. In your face-to-face course, you would print it out and share with students.
These are just a few ways that third-party content is typically used in courses. When using these types of content in online courses, you should think about how copyright law affects your use.
Copyright law restricts how you can use third-party content in online courses more than in face-to-face courses. It is important to consider copyright law in online course creation; if third-party content is used in a way that does not comply with copyright law, it could be taken down (disrupting the course), the unit could be forced to pay for the use, or U-M could possibly be sued.
Third-party content
Faculty members are in a great position to help avoid these risks by asking the following five questions for each piece of third-party content they consider using in their course:
- Are there contractual terms, terms of service, or terms of use that limit my use?
- Is the third-party content uncopyrightable or in the public domain?
- Is the third-party content already licensed for my use?
- Is my use of the third party content a fair use?
- Can I ask for permission to use the third party content?
1. Are there contractual terms, terms of service, or terms of use that limit my use?
Inform yourself of any contractual terms that might affect the use you want to make (e.g., read the terms of use of the website you’re relying on for access to the work). Ultimately, it is for you to decide whether to follow the terms you’ve agreed to or try to negotiate a different set of contractual terms. If you ignore contractual terms, remember that there may be legal consequences; reach out to the Office of General Counsel if you have any questions.
If the answer to this question is yes, move to question five.
2. Is the third-party content uncopyrightable or in the public domain?
Copyright does not protect everything. Some things are fundamentally not copyrightable. For instance, copyright does not protect any idea, procedure, process, system, method of operation, concept, principle, or discovery. To be protected by copyright, the work needs to embody some spark of creativity and not be purely factual. Works that are not protected by copyright can be used without any restrictions.
This is especially important when you want to use third-party content like charts and graphs in your course. If the chart is not copyrightable, it can be used freely because there are no copyright restrictions. Examples of non-copyrightable charts and graphs are available in the OpenMichigan Casebook.
Some third-party content is no longer protected by copyright, either because the copyright term has expired or because the copyright holder has dedicated the work to the public domain. In the US, as of 2020, all works published in the US before 1925 and all works created by federal government employees are in the public domain. Works published between 1925 and 1989 could also be in the public domain for not following formalities that were required at the time. Consult Cornell’s Copyright Term and the Public Domain in the US chart to see if the third party content you want to use might fall into this category of works.
If the third-party content is uncopyrightable or in the public domain, stop here. If not, move to question three.
3. Is the third party content already licensed for my use?
Your use of a copyrighted work might be covered by a pre-existing license. The most common type of public licenses is a Creative Commons (CC) license [Link to Creative Commons]. CC licenses are blanket licenses that give everyone the ability to use the content as long as they follow the rules outlined by the copyright holder. All CC licenses require attribution. More details can be found in AI’s How To: Attributions guide.
There are also online resources that the U-M library has already purchased. If your online course is for registered U-M students, you can take advantage of these resources in your online course by providing students with the link to the resource (commonly, ebooks and journal articles, but also some image banks) in the library’s catalogue. This will authenticate the student and allow them to view the resource.
For more information about what library resources may be available for your course, contact your subject specialist librarian.
If the third-party content is already licensed for your use, stop here. If not, move to question four.
4. Is my use of third-party content a fair use?
There might be some third-party content you want to use that is protected by copyright and isn’t openly licensed. If there is no adequate replacement and the third-party content is crucial to the course, you should consider whether the use is a fair use. If the use is a fair use, the third-party content can be included in the course without permission.
Fair use is a user’s right that encourages certain favored uses (like criticism, commentary, and education) without the permission of the copyright holder. Fair use is context specific; there are no brightline rules here. For example, it’s a widely believed myth that 10% of a work can be used under fair use. This is not always true. Sometimes, using 10% of a work is not a fair use. Sometimes, using 100% of a work is a fair use. It is very dependent on the specific use you are making.
For each fair use analysis, consider the following four factors:
- the purpose of the use
- the nature of the copyrighted work;
- the amount used; and
- the effect on the market
For more information about fair use and some helpful guidance on how to apply the fair use analysis, consult the Library Copyright Office’s Fair Use page.
If your use of the third-party content is a fair use, stop here. If not, move to question five.
5. Can I ask for permission to use the third party content?
If the third-party content is copyrightable, not openly licensed, and your use would not be a fair use, you should ask the copyright holder for permission to include the content in your course. Third-party content can be used in any way if the copyright holder gives you permission to make those uses. When asking for permission, make sure to be clear about how the material will be used, how many people will view it, and how long the content will be used. This will help the copyright holder make an informed decision on whether or not they want to allow the use and how much they want to charge for it (if at all). Although not legally required, it is a good idea to get the permission and terms in writing and save the writing for future reference.
The Library Copyright Office has a Sample Permission Letter that can easily be adapted to fit the needs of the specific course. More information about requesting copyright permission can be found in the Obtaining Copyright Permissions research guide.
If you cannot ask for permission to use the work, you should not include the work in your course. Instead, try looking for a replacement that’s under an open license. AI’s guide on Finding Usable Materials is a helpful place to start.
Practical tips
The U-M Library Copyright Office is available if you have questions or would like to learn more about how copyright affects what you use in your course. They can be contacted at [email protected]. You can also schedule an appointment with one of their specialists.
Resources
University of Michigan
CAI- How to flip your content: Designed for those building MOOCs, this document can help you find additional open education resources
CAI- Open Educational Resources
Contributors: U-M Library & Academic Innovation