On our Classroom Uses page, we explained how copyright and fair use operate within the classroom. Do these rules change if you want to post the materials online in a course site, rather than distribute or display materials live in class?
For the most part, the rules operate the same way: You'll do a fair use analysis as you would for in-class sessions. But there are few different considerations when making that analysis if you're putting things online. We've made a straightforward workflow for this below.
The workflow helps you evaluate whether the material you wish to distribute can be uploaded directly to bCourses, or whether you must link to a lawful copy online or request the copyright holder's permission to post.
If you can say "yes"...
If the answer is "yes" to any workflow question, you can post content, itself, rather than a link to it.
If the answer to all the questions is "no," you should post a link to the content, or ask for the copyright holder's permission to post.
When in doubt...
Remember, it is always permissible (and thus advisable) to link to content - rather than uploading the content, itself - obviating the need to answer the copyright workflow questions. If you would like the Library's assistance finding and linking to materials, please consult the lib guide Course Readings in bCourses.
1. Has a license or permission already been provided?
Sometimes, authors or copyright holders have granted permission for particular instructors to post or circulate copyrighted materials. If a copyright holder has provided you with written permission to post his or her work on your course site, you should retain the written conveyances for record-keeping purposes.
In other instances, authors may have expressly provided permission for republication of their copyrighted materials through rights grants such as Creative Commons licenses. A Creative Commons license allows you to make certain specified uses of a copyrighted work without asking for prior permission. The license, itself, will identify the terms of what uses can be made, and what attributions must be provided.
If you do not currently have permission from the rights holder but would like to obtain a license or permission, you can send the copyright holder a written request to post content. The University of Michigan has a Sample Permission Letter for requesting to distribute copies in a course. Commercial services like the Copyright Clearance Center can also assist with obtaining licenses for a fee, which may be helpful in instances in which it is difficult to determine who the rights holder is.
2. Is the material in the public domain?
Just because material is online does not mean it is in the "public domain." Public domain refers to works for which copyright protections have expired, or that were ineligible for copyright protection from the start. Public domain works can be posted to course sites without permission or paying royalties.
To determine whether a work has entered the public domain due to expiration of copyright:
- The UC has provided helpful general rules of thumb in its Copyright guide; see Public Domain.
- For more detailed inquiries, we recommend using Cornell's chart, Copyright Term and the Public Domain in the United States in combination with the Stanford Copyright Renewal Database.
In addition, certain types of work are generally ineligible for U.S. copyright protection, and also considered to be in the public domain:
- Ideas and facts*
- U.S. government works (although state government works may be protected, as may works funded but not produced by the federal government)
- Scientific principles, theorems, formulae, and natural laws
- Scientific and other research methodologies, statistical techniques, and educational processes
- Laws, regulations, judicial opinions, and legislative reports
- Words, names, numbers, symbols, signs, rules of grammar and diction, and punctuation
*Note, however, that while copyright law does not protect facts, an author's original compilation, arrangement, or selection of facts may be protected. In other words, factual compilations may be protected even where the facts, themselves, are not.
3. Would posting the content be fair use?
As we saw on the Copyright Basics page, fair use allows limited copying of copyrighted works without having to seek the author/owner's permission, when use is for purposes such as teaching, research, scholarship, reporting, criticism, or parody.
Remember the four factors for fair use under Section 107 of the Copyright Act. When considering these factors, keep in mind that the fair use exception is purposefully broad and flexible to promote academic freedom, expression, education, and debate.
Fair Use Factor
Tip for Applying the Factor
1. The purpose and character of the use, including whether the intended use is commercial vs. for nonprofit educational purposes.
Uses in nonprofit educational institutions are more likely to be fair use than works used for commercial purposes.
2. The nature of the copyrighted work.
Distributing factual works is more likely to be fair use than doing so with creative, artistic works such as musical compositions.
3. The amount and significance of the portion used in relation to the entire work.
Copying smaller portions of a work is more likely to be fair use than larger portions.
4. The effect of the use upon the potential market for or value of the original.
Uses that have no or little market impact on the copyrighted work are more likely to be fair.
And, recall that following questions can help you weigh the outcome of those four factors:
- Are you planning on using the work in a different way, or for a different purpose, than the original creator? In copyright terms, is your use “transformative”?
- Are you using an amount of that work that is narrowly-tailored to your new purpose?
If you need help determining how your use pans out under these four factors, UC's Copyright in the Classroom guide suggests that for posting to course sites, adhering to the following guidelines when posting lends toward a finding of fair use (though fair use is not guaranteed):
If you want to: Create multiple print or digital copies of articles, book chapters, or other works for classroom use or discussion, then there should be:
1. A clear connection between the work being copied and the instructor’s pedagogical purpose
2. An amount copied tailored to include only what is appropriate for the instructor’s specific educational goals
3. Access to works distributed online provided only for the duration of the course for which they are provided, and limited to students enrolled in a course and other appropriate individuals (e.g. teaching assistants for the course)
4. Each copy includes full attribution in a form satisfactory to scholars in that field
4. Is posting subject to another statutory exception, like the TEACH Act?
The TEACH Act of 2002 expanded certain statutory exemptions of copyright law to accommodate distance education. Much like the fair use exception (set forth in 17 USC § 107), the TEACH Act (codified in 17 USC §§ 110(2), et seq.) thus provides another means under which the copyrighted work, itself, rather than a link, can be uploaded to bCourses without first seeking the copyright holder's permission.
In many cases, 17 USC § 107 (fair use) may provide a broader exception by which to post course content than the TEACH Act.
Nevertheless, it is important to understand what the TEACH Act can cover:
- Performance of an entire nondramatic literary or musical work (such as the recorded reading of a poem or novel)
- Performance of a limited and reasonable portion of any other work (such as a scene from a film)
- Display of any work in an amount comparable to what would be used during a physical class setting (such as the portion of a film you would show in class, or the portion of a book chapter students would be asked to read in class)
To rely on the TEACH Act to post the above materials, certain parameters must be satisfied:
- The instructor supervises students' use
- The material is integral to the class session
- The material is directly related to and of material assistance to teaching course content
- The material is provided as a "mediated instructional activity" (i.e. same type of material you would use as part of a live classroom session)
- The materials are accessible and and retained only for the length of a "class session"
- The materials are not marketed as part of online instructional activities (i.e. they are not commercially-available digital educational materials)
- The materials were not unlawfully copied (i.e. the instructor did not "know or have reason to believe" that they were not lawfully made and acquired)
For a more fulsome explanation of the numerous conditions and requirements fo complying with TEACH Act terms, visit:
Take it With You!
You can download all our tips as a handout. We have also made a handy diagram of the Workflow.
You can find even more information in the UC's Copyright for the Classroom guide.
For help evaluating fair use, try the American Library Association's Fair Use Evaluation Tool.
Columbia University also has an excellent Fair Use Checklist demonstrating the factors that weigh for and against a finding of fair use. It can also be a terrific tool for keeping track of your fair use decision-making.
Note that as a matter of Berkeley policy, it is the instructor's role to make fair use determinations. Sorry, the Library cannot make fair use determinations for you!
However, we are happy to explain the issues and provide resources. Please contact us at email@example.com!