Copyright, Fair Dealing and Online Teaching at a Time of Crisis

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We’ve seen many universities recently announce that they are switching to online learning in order to minimise the spread of COVID-19. This will clearly be a very challenging time for everybody involved in education, both emotionally and intellectually. But from a practical perspective, one of the key challenges to this unprecedented and unexpected shift to online education will be addressing copyright issues.

We have written this post to help copyright specialists, educators, learning technologists and learning support staff who are responding to the rapid switch to online learning. We work in higher education so that’s the main angle we’re coming from, although much will apply in other educational contexts, such as in schools and colleges. Many people will have questions in the coming days and weeks and we can’t attempt to answer them all here. However, we thought a good start would be to engage the community and think through the challenges together with a shared understanding of what is possible.

We would suggest that much of the advice offered in our book Copyright & E-learning: A guide for practitioners published in 2016 by Facet, still stands. We are grateful to Facet who made several chapters of the book available online on 17 March 2020 in response to our request:

Coordinated response in the US

Copyright specialists in US universities have been very quick off the mark in drawing attention to the fair use provisions in US law that allow flexibility to make copies without the permission of the copyright holder. They are advocating for fair use as a way of addressing the needs of teachers and students in emergency situations: This guidance was issued on 13th March. It’s been written and signed by a significant number of copyright specialists from US universities.

They have also put together a virtual office hour schedule for US educators looking for advice and guidance on copyright which started on the 13th March. 

Why the US is different to the UK

The US example shows the power of their copyright library community who have coordinated efforts to support the use of copyright exceptions as well as licences when delivering teaching. However for those outside of the US it is important to note that different countries’ laws operate in different ways. For example, this post from Eoin O’Dell at Trinity College Dublin helpfully sets out the provisions in Irish copyright law that support teachers. We would like to provide similar guidance for UK higher education institutions and this post is our first attempt at starting this process.

The UK education system differs from that in the US because we have a range of UK-specific licences and exceptions which allow us to provide learning resources to staff, students and researchers. The full detail of this is set out in our book Copyright & E-learning: A guide for practitioners published in 2016 by Facet. We appreciate that ploughing your way through the book might not be top of your priorities at the moment, so the short version of what you need to know is as follows:

You can rely on a range of licensing schemes 

Schools, colleges and universities in the UK provide access to electronic resources through licensing arrangements with publishers and other content providers. In addition to these resources, collective management organisations like the CLA (Copyright Licensing Agency), ERA (Educational Recording Agency) and NLA Media Access (Newspaper Licensing Agency) offer licences for educational institutions which cover whole classes of work (e.g. books and journals or free to air broadcasts). These allow copying of extracts and sometimes whole works for authorised users for a fee, and although they have limitations do already provide access to content remotely. 

At the time of writing, the UUK/GuildHE Copyright Negotiating and Advisory Committee (CNAC) are in discussion with CLA about whether the CLA HE Licence can be extended to cover additional copying, or the role they might play in getting permission directly from publishers. We will post an update on this as soon as it is available. For the time being, scanning services offered by the British Library through their EHESS service are still functioning and we recommend logging any requests to get increased access to published book or journal content via the PLS Clear system.

Open licensed content is available for use and reuse

Over the last few years there has been an increasing amount of material available under open licences, the most popular of which are the Creative Commons licences. These have the advantage of being both free to access and free to reuse and in some cases modify. Open licences are an essential part of open educational practice and we would encourage educators to make use of openly licensed resources at this time. Here is a short list of places you can go to get content:

Some institutions have been working towards open content policies so that the material they create can be openly shared. This may be something that the higher education sector may want to consider in light of the increased need to access content remotely without technical or legal barriers.

A number of copyright exceptions can be used to provide access to online material 

Licences are not the only way that copyright material can be used legally in teaching. In 2014 the UK government introduced changes to the Copyright, Designs and Patents Act which provided greater flexibility to use material without the permission of the rights holder, but with attribution to the author/producer. Many of these exceptions relate to the concept of ‘fair dealing’, which is similar to fair use in its intent, but different in practice because it is less flexible and not defined in the legislation. Some of the exceptions that you may be able to rely on include:

This exception allows people who are undertaking non-commercial research or their own private study to make copies of copyright protected material. It isn’t intended to cover the making of multiple copies of works for whole classes (for this most, if not all institutions, have a CLA licence or equivalent) but it is useful for those undertaking research projects in online contexts. Use of this exception is subject to the fair dealing test.

Since 2014 the CDPA has provided a specific exception for quotation of a copyright work, updating it from the previous wording that allowed use of a work only for the purposes of ‘criticism and review’ or news reporting. This exception only relates to works that have already been made available to the public, but unlike section 32 (see below) there is no requirement that the use should be non-commercial.

Due to lack of case law it is unclear as to how the concept of quotation relates to all types of content in all contexts and whether it might cover use of entire works such as images. However, previous cases have identified that there may be examples where use of entire works could be regarded as fair dealing. Recent legal research has also considered whether the broadening of this exception moves us closer to a US-style fair use approach.

In short, the quotation exception is a powerful one that in our view covers a great deal of normal teaching practice from inclusion of passages of text and music to potentially covering use of images and other artistic works.

If you are copying for teaching purposes or to illustrate a point for the ‘sole purpose of illustration for instruction’ then, provided your use is fair, you acknowledge your source and the activity is not commercial in nature, you can go ahead and use the content. Chris recently wrote his dissertation on the subject of how universities had interpreted this provision and whilst reading all 15,000 words may not be everyone’s top priority he has written a blog post summary of the findings. 

Some people have taken a cautious approach to interpreting this exception, seeing it as relating primarily to face to face teaching. However, there is no reason to assume that images, clips from films of short extracts of text from books or journals for example, can’t be used in an online context under this exception as long as that use remains fair. Restricting access to content so that it is only available to registered students will increase the likelihood that a particular use is fair. However, this doesn’t mean that incorporating content in material available on the open web is automatically unfair. This also comes down to whether the use is relevant to the teaching, whether the amount of the work used is reasonable and whether it affects the market for the original work (i.e. it undermines sales).

We recently wrote a guide for SCONUL about interlibrary supply and copyright. You should be aware that copies of journal articles or books requested under these provisions are limited to being used by one individual who signs a declaration form. However, you can use your electronic resources to supply copies and you can supply copies in digital format to staff who are working off-site. 

Take a risk managed approach to decisions that you make 

As anyone who has been involved in responding to copyright questions knows, risk-management is an essential part of using copyright works in an educational context. This recognises that licences are not always available or appropriate for some uses and that the application of exceptions is open to interpretations of what is ‘fair’ or ‘reasonable’. Risk management involves assessing risk according to each situation and involves the following factors (as originally identified by Prof Charles Oppenheim):

  • What is the likelihood that what you are doing infringes copyright?
  • How likely is it that the copyright holder will discover your activity?
  • How likely is it that the copyright holder will object to your activity?
  • What is the impact (both financial and reputational) if the copyright holder was to take action against you or the University?

Luckily most universities have copyright specialists (75% of them on the last count) who are able to help individuals and teams make sense of the risk and determine a way forward. We’re aware of a growing number of requests to make content available to students remotely in ways that are not explicitly allowed under licence terms or copyright exceptions. Although publishers are taking steps to increase availability of their content on a temporary basis it seems inevitable that some teaching materials will need to be made available on a risk-managed basis if we are going to provide our students with access to the content they need.

Risk management will clearly be an essential part of the accelerated shift to online learning, but we’re not suggesting universities should throw caution to the wind. We also accept that those with responsibility for copyright can sometimes be seen as getting in the way of teaching. Copyright specialists are likely to be called upon to give advice and support to colleagues at a time when they are likely to be working under pressure and stressed. Determining what is fair and making risk assessment can be difficult judgements to make at the best of times.

For us, the answers lie in both the power of the community to come up with innovative solutions and think through options as things develop as well as the judgement of individuals in their own institutional context. LIS-Copyseek – the discussion list we moderate – has always been a great place to discuss these issues in the UK context. It is clearly going to be a valuable resource and we will be drawing on it as we think through what the best courses of action to take are.

What else can you do to help?

We’ve also been liaising with Jisc Collections who are drafting a joint statement to publishers to ask them to open up access to their collections during these difficult times. Many publishers have already responded positively to the situation and we’re aware of several e-book and content platforms where access is being extended to larger numbers of users for a limited amount of time. Some software suppliers are also making similar arrangements. There are a few lists emerging of resources including a list Jane started with Yvonne Nobis on 15 March and this list from Anthony Sinnott. Other lists may be available.

However we are sure there is more that can be done and we don’t have all the answers. With this in mind we have set up an online meeting on Friday 20th March for those interested in talking about copyright challenges at the current time and how we can address them. The meeting will be Friday 20th March at 11am-12pm using Blackboard Collaborate. We are very grateful to the Association of Learning Technology (ALT) for offering to host this session for us.

Some final thoughts…..

Our mission at copyrightliteracy.org has been to make learning about copyright fun, engaging and empowering. We know that this is particularly challenging at the moment but we think that addressing the copyright questions people have is important to avoid copyright being seen as an additional hurdle to supporting teaching and learning. Our advice is:

  • Look at what licences you have in place that already allow you to make content available remotely
  • Don’t be afraid to rely on copyright exceptions, make assessments about whether your use is ‘fair’ or use a risk-managed approach – but know that there are others in the same boat as you who can help
  • Follow good practice, and remind people to always provide credit or attribution for any material used.

But most of all, look after yourselves and stay well…

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