A significant percentage of university courses are now taught online and/or have an online component. Logically, it would seem that whatever can be lawfully used in a traditional class setting should also be lawful to use in a university's access controlled online course settings, available only to students enrolled in that class. Unfortunately, logic has little to do with the distinction and restrictions that copyright law makes between what can be used in a face-to-face setting as opposed to its online counterpart.
So, what are the copyright issues involved in using copyrighted materials in an online teaching course management system? When can works be digitized? How much can be used? Can a work be streamed? When is permission necessary? Is linking ok?
First of all, "online teaching" is intended to refer to courses that are presented entirely online as well as courses that have both a face-to-face setting and an online component. For our purposes in examining copyright issues, the course does not have to be designated or identified as a "distance education" course (the Copyright Act never uses the term) or be offered only remotely; the online course simply has to be transmitting performances and/or displays of 3rd party copyrighted material as part of the educational activities of a nonprofit educational institution, such as LSU.
Reminder: Educational uses are favored under the copyright act since they directly support copyright's Constitutional purpose of promoting progress of science and the useful arts. Because of this, Congress crafted a number of exceptions to the copyright holder's exclusive rights that allow such uses without the need for prior permission from the copyright holder.
Unlike traditional classroom teaching, there are not any easy answers for online teaching uses; only complicated ones. It is likely that the differences relate to the relative ease with which digital materials can be reproduced without any degradation in quality and widely disseminated via the internet.
When placing the copyrighted materials of others within an online course, there are basically three options:
1. Comply with the requirements of the TEACH Act amendment to the copyright act [Section 110(2)];
2. Determine whether your proposed use qualifies as a fair use; or
3. Obtain permission from the copyright holder.
How Do I Decide Which Option To Use?
As in the classroom teaching of this site, I recommend trying the following process:
The Five-Step Approach to Analyzing Copyright Use Questions for Online Teaching
Note: It is important that these questions be evaluated in chronicle order.
1. Is the work copyrighted? If not, no further analysis is needed and the work can be freely used. However, most works created or published in the 20th century remain protected by copyright; and works created after 1989 are not even required to display a copyright notice. It is recommended that you review this section here. If it is or you are not sure, continue through the questions.
2. Is the work covered by a license, such as those governing the library's electronic journals and databases or, accompanied by terms and conditions of use or a Creative Commons license?
3. Is there a specific provision in the copyright law that supports your proposed use? [Those commonly helpful in the academic setting are found in Section 108 (the library provisions) and Section 110 (the performance and display exceptions).
4. Does the fair use provision of the copyright law support my proposed use?
5. Do I need permission from the copyright holder for the use I propose?
The above is a brief summary of the 5 Steps to Analyzing a Copyright Use Question and operates as a reminder of the steps, not as a substitute for working through them.