Paul L. Caron

Sunday, March 15, 2020

Fair Use And Emergency Remote Teaching And Research

Public Statement of Library Copyright Specialists, Fair Use & Emergency Remote Teaching & Research:

CoronavirusThis Statement is meant to provide clarity for U.S. colleges and universities about how copyright law applies to the many facets of remote teaching and research in the wake of the COVID-19 outbreak. We write this as copyright specialists at colleges, universities, and other organizations supporting higher education in the U.S. and Canada who work every day with faculty, staff, and librarians to enable them to make ethical and legal choices about copyright issues in online teaching.

The United States is in a time of crisis. As of this writing, more than 200 universities and colleges have moved to remote teaching. These moves aim to promote public health by slowing the spread of the disease, while maintaining at least some of the important functions higher education plays in teaching, learning, and research. We have heard concerns that copyright may pose impediments to a rapid shift to remote instruction, or conversely, that copyright is not relevant. While legal obligations do not automatically dissolve in the face of a public health crisis, U.S. copyright law is, thankfully, well equipped to provide the flexibility necessary for the vast majority of remote learning needed at this time.

Fair Use ...
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.

We also encourage campuses to begin contemplating the longer-term needs this situation presents. While fair use is absolutely appropriate to support the heightened demands presented by this emergency, if time periods extend further, campuses will need to investigate and adopt solutions tailored for the long-term.

DMCA and Video 
While fair use offers a clear path for most uses in rapidly shifting to remote teaching, some uses raise other concerns. In particular, copying a full-length movie or television episode from a DVD for use in teaching may require circumvention of technical protection measures, which is prohibited under the Digital Millennium Copyright Act (“DMCA”).

For complete TaxProf Blog coverage of the coronavirus, see here.

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The behavior of librarians during the Google Book Settlement taught me that there's quite a bit of hostility toward copyright among many academic librarians. This claim only reinforces that impression. An emergency doesn't make the otherwise illegal use of copyrighted material into fair use. At best it can justify a university short-circuiting the prior permission process, but not it's responsibility to pay the accustomed fees afterward. That should be obvious.

I find it surprising that many university librarians are so hostile to copyright. Their attitude is most unfair. They get paid to distribute books written by others. Why are they so unwilling to see authors rewarded for their labors? Academic writing is particularly laborious and rarely financially rewarding.

Posted by: Michael W. Perry, medical writer | Mar 16, 2020 5:38:56 PM