You Streamed What? Copyright Infringement Pitfalls During COVID-19

In the sudden transition from in-person to online presentation of content precipitated by the COVID-19 stay-at-home orders, some educators and other presenters have run headlong into the digital world without a thought to the application of copyright law to their online presentations.  Scrambling to provide content, did some consider the sufficiency of their internet bandwidth and the security of their video-conferencing platform while overlooking copyright infringement issues?  Caution.  Those office webinars, college lectures, music lessons, and club meetings can be fraught with legal pitfalls.

Although we are slowly emerging from our bunkers and cautiously lifting our masks while maintaining social distance, some have predicted that online meetings and classes are here to stay—at least in some form.  Thus, these copyright infringement pitfalls merit consideration.  Granted, any attempt to treat this matter comprehensively in a 1500 word article is a fool’s errand.  And when it comes to these highly fact-specific matters, there’s no substitute for an attorney’s legal advice.  But some basic education on copyright law and some understanding of the distinctions between copyright as applied to education versus other areas might assist those unaccustomed to the online stage from stumbling into a battle over copyright infringement.

What is Protected by Copyright?

A copyright is a collection of rights that protect original works of authorship.  These works can include literary, dramatic, musical and artistic works.  A copyright does not protect facts, ideas, systems or methods of operation, although it may protect the way these things are expressed.  In general, a copyright exists from the moment the work is created and fixed in tangible form.  Registering does not create the copyright; but registering the copyright allows the owner to bring a lawsuit to enforce it and bears on the recovery that a copyright owner can obtain in the lawsuit.  Similarly, under the current law, neither the “©” symbol nor any other marking on an original work of authorship creates the copyright; but the copyright symbol or other marking can put the public on notice that the copyright owner claims his copyright.

What is in the Public Domain?

Works in the “public domain” can be copied.  These fall generally into three categories.

• Works deliberately dedicated to the public without copyright protection.
• Works for which the copyright has expired.
• Works for which the copyright was not renewed.

The changes in the copyright legislation over the course of the past 40 years have made the rules about copyright expiration and renewal somewhat complex.  As of 2020, however, works published before January 1, 1925, entered the public domain.

What About Fair Use?

Most educators and presenters have some familiarity with the “fair use doctrine,” a defense to what is indisputably copying of an original work.  While some librarians have signed the “Public Statement:  Fair Use & Emergency Remote Teaching & Research” in which they boldly state that “making materials available and accessible to students in this time of crisis will almost always be a fair use”, as yet no legislature or court has carved out a “COVID-19” addendum or even a “public health emergency” addendum to the fair use doctrine.  Nevertheless, the fair use doctrine can provide a defense to presenters who exercise a modicum of discretion.

In considering an infringer’s reliance on the fair use doctrine as a defense to copyright infringement, courts consider the use made of the work in light of four factors:

1)   the purpose and character of the use, including whether the use is commercial or is for nonprofit educational purposes;

2)   the nature of the copyrighted work;

3)   the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4)   the effect of the use upon the potential market for or value of the copyrighted work.

Consideration of these factors is highly subjective and fact-sensitive.  The first factor, besides asking whether the use is commercial or educational, looks at the purpose of the use.  Educational as opposed to commercial uses are favored.  But contrary to popular belief, educational use alone will not suffice as a defense to copyright infringement.  Generally, whether the use is commercial or educational, there must be something “transformative” about the use.  In other words, is there something new created?  Does the new work offer a new expression, meaning or message?  Is it serving as raw material for a new expression or insight?  In the education context, is the instructor adding something new such as commentary?  Is he tying the work into his own lesson or is he just using the work to replace his lesson?

While the first factor is often considered the “heart” of the fair use analysis, the other factors matter too.  Consider the second factor.  Is the original work creative or just an arrangement of facts?  Fair use has a broader scope where the original work is factual or informational.  Is it published or unpublished?  Greater latitude is afforded the alleged infringer claiming fair use where the work is published.

But even if the work is published, the third factor considers the portion used—in a quantitative as well as a qualitative sense.  Is the portion used a paragraph or several chapters?  The fair use defense will more likely shield copying a small portion of a work than a large section.  Despite efforts by advocates, courts have refused to specifically quantify how much is too much.  Furthermore, if a copier carves out the most memorable portion of the work, the “heart” of the work, no matter how small, fair use will offer no sanctuary—except in parody.  Where the new work is a parody of the original, the court has recognized that it is the heart of the work at which the parody takes aim.

Finally, how does the copied work impact the potential market for the original? If the copied work undermines the current or potential market for the original work, then this will undermine the use of the fair use doctrine as a defense.

In the education context, Congress has carved out some specific ways in which instructors can circumvent infringement.  House Report No. 94-1476, 94^th Cong., 2d Sess. (1976) includes the Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions (p.6).  Single copying of a chapter from a book or an article from a periodical, a chart or cartoon for use in teaching or preparing to teach, for example is considered fair use under the guidelines.  Multiple copying for the use of pupils in a class is similarly fair use where the copying meets tests of brevity and spontaneity (as defined in the guidelines), meets the cumulative effect test (as defined in the guidelines), and each copy includes a notice of copyright.  But copying cannot be used to replace anthologies or to replace books intended to be “consumable.”  Specific guidelines apply to music.  While there may be instances in which copying does not fall within the protection of the guidelines but nevertheless is permitted under the fair use criteria, compliance with the guidelines offers a safe harbor for educators.

Outside of this safe harbor, presenters employing copied works must navigate the more uncertain waters of fair use and consider other ways to avoid infringement.  But be forewarned that mere acknowledgement of the source material, while perhaps one factor to be considered in a fair use determination, will not absolve a copier for infringement.  Likewise, a disclaimer—effectively a “No Infringement Intended” notice—won’t work.

How Does the TEACH Act Apply in the Online Classroom?

Addressing more specifically the online environment for education, the Technology, Education, and Copyright Harmonization Act of 2002, better known as the TEACH Act, addresses digital teaching materials used in both the classroom and in distance learning settings in 17 USC § 110(2).  This exempts from infringement certain performances and displays of works in an online classroom transmission under certain conditions.

What can be transmitted?

• Performance of a nondramatic literary or musical work.
• Performance of reasonable and limited portions of any other work.
• Display of a work in an amount comparable to what would typically be displayed in the course of a live classroom session.

Under what conditions?

• The transmission is under the actual supervision of an instructor.
• The transmission is part of the instructional activities of the institution.
• The work is related to the teaching content of the transmission.
• The transmission is made solely for and is limited to the students officially enrolled in the course (as much as is technologically feasible).

What is not authorized?

• Use of pirated copies.
• Use of works normally marketed primarily for performance or display as part of online instructional activities.
• Conversion of print versions of works to digital formats unless there is no digital version available, and even then, conversion is limited to the portions authorized by the size restrictions in the Act.

In order for an instructor to rely on the provisions of the Act, the institution must comply with certain requirements regarding policies and education of faculty and students and application of technological measures to reasonably prevent retention of the works by recipients of the transmission or further dissemination.  Posting class lectures that include copyrighted works on YouTube won’t qualify.

What about showing films?  In the face-to-face environment of a brick and mortar classroom, showing an entire film, video or TV program for educational purposes is allowed (17 U.S.C. § 110(1)), but not when the classroom goes virtual.  Showing portions of a film in an online classroom, may be considered fair use depending on how much of the film is shown and for what purpose.  If fair use does not apply and if the film is not in the public domain, however, students should view the film through a licensed streaming film provider.

What About Licenses and Releases?

Obtaining an author’s permission to use his work obviates the need to engage in the fair use or other analyses described above.  Whether the permission takes the form of a license (permission to use the work) or a release (promise not to sue for unauthorized use), however, many licenses and releases are limited to in-person presentation or distribution and do not extend to online presentation or distribution.  Presenters must carefully consider the scope of permission granted by a license or permission.

In the COVID-19 world, some publishers are offering educators temporary expanded permissions.  The key words here are “educators” and “temporary.”  These permissions do not extend to non-educators, and they are provisional.  Once the days of stay-at-home orders end, educators cannot assume that they can use the same works in the same way online.  In addition, the use of these expanded permissions comes with strings attached.  There are certain requirements that the publishers impose on the user.

Some creators offer their work through Creative Commons licenses.  These give creators standardized ways to grant the public permission to use their work.  Again, however, a user of a work offered under a Creative Commons license should carefully consider the scope of the permission granted.  Not all Creative Commons licenses allow the same types of use.

Obtaining permission to use works may seem daunting, but there are various organizations available online that streamline the process.  The Copyright Alliance offers a list of resources to assist those seeking licenses for works such as literary publications, music, photographs, software and motion pictures.

Conclusion

When it comes to copyright and online meetings, many well-meaning and well-educated people don’t know what they don’t know—until they do.  Unfortunately, that epiphany sometimes comes in the form of a takedown notice or a demand letter.  Thus, presenters would be well advised to evaluate their use of another’s work before posting, streaming, sharing or tweeting.

For more on copyright, see the National Law Review Intellectual Property law section.