Chesapeake College’s Policy on Use of Copy Written Materials in Online Courses

Chesapeake College’s policy regarding the use of copy written materials in online classes follows the Technology, Education and Copyright Harmonization Act (TEACH Act)  Passed in 2002,  the TEACH Act allows for the following:

• Entire performances of non-dramatic literary and musical works.
• Reasonable and limited parts of a dramatic literary, musical, or audiovisual works.
• Display of other works, such as images, in amounts similar to typical displays in face-to-face teaching. 

The TEACH Act covers quite a few types of material; however, it does not allow for streaming full-length feature films in our online courses, such as IDC and Introduction to Film. Consequently, according to our current policy, students have to purchase copies of the films or find them online to rent or buy gift cards to a streaming service, such as Netflix or Amazon.  Given the number and array of films that our instructors use in their courses, it is difficult to find all the films from one source, and some films may not be available for streaming at all.  Additionally, this are the complications of how financial aid can be used in these situations.

On the other hand, many colleges have policies that are in alignment with Fair Use legal doctrine. In short, Fair Use is a legal defense against accusations of copyright infringement.  In determining fair use, judges consider four factors:

• the purpose and character of the use
• the nature of the copyrighted work
• the amount and substantiality of the portion taken, and
• the effect of the use upon the potential market.

Many colleges and universities have taken the stance that showing a full-length feature film in an online course constitutes a “transformative” purpose because the work is subjected to commentary and review. , Colleges also cite the fact that in a face to face classroom, there would never be expectation that the student must purchase the film, so why should students have to do so in a virtual classroom? The fact that these films are available for a limited period of time (University of Baltimore only allows the film to be viewable for seven days) and shown to a limited audience (the students enrolled in a particular course) also heavily bolsters the Fair Use defense.  In fact in 2012, a judge ruled in a case  involving accusations of copyright infringement against UCLA.  The judge ruled in favor of UCLA by stating that “no court has considered whether streaming videos only to students enrolled in a class constitutes fair use, which reinforces the ambiguity of the law in this area.”"

Given all this, Chesapeake College is, therefore, in good legal standing to adopt a policy that is in accordance with Fair Use doctrine.  The University of Baltimore has a well-developed protocol in how they determine what they allow to be streamed in online classes as outlined on its library webpage.  The University of Baltimore’s approach is a model for Chesapeake in crafting its protocol. 

The exceptions (or non-infringing uses) for teaching purposes are outlined in Section 110 of the Copyright Act. Section 110(1) addresses face-to-face classroom performances and displays while Section 110(2) addresses transmissions of performances and display, such as in online or hybrid courses.

The exceptions are:

1. performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made
2. except with respect to a work produced or marketed primarily for performance or display as part of mediated instructional activities transmitted via digital networks, or a performance or display that is given by means of a copy or phonorecord that is not lawfully made and acquired under this title, and the transmitting government body or accredited nonprofit educational institution knew or had reason to believe was not lawfully made and acquired, the performance of a nondramatic literary or musical work or reasonable and limited portions of any other work, or display of a work in an amount comparable to that which is typically displayed in the course of a live classroom session, by or in the course of a transmission, etc... (please refer to link below for the full text of this exception)

See p. 24 of Chapter 1 of the Copyright Act for the full text of Section 110.

See Classroom Showing of Media Materials and the TEACH Act box below for more information about applying these two exceptions. See also Best Practices - Multimedia.

Permission to reuse content from Howard Community College Library.