Public Statement: Fair Use & Emergency Remote Teaching & Research

Copyright | Fair Use | Online instruction | Remote learning | Covid-19

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

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March 13, 2020

This 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

Copyright law in the United States is made to support teaching, research, and learning. This stems from its Constitutional purpose, which is “to promote the Progress of Science and the useful Arts.”^[1] One critical feature of copyright law is fair use,^[2] a flexible users’ right that allows the use of copyrighted works without permission. It accommodates a wide variety of circumstances, including new and rapidly evolving situations. In the words of one of our colleagues, April Hathcock, “fair use is made for just these kinds of contingencies.”

To analyze whether a particular use is fair, courts balance four factors. The “heart of the fair use inquiry” lies in the first factor – the purpose and character of the use.^[3] Courts favor uses where the purpose is to benefit the public, even when that benefit is not “direct or tangible.”^[4]

Even under normal circumstances, courts favor educational uses because of their broad public benefits.^[5] While there are no fair use cases squarely addressing copying to help minimize a public health crisis, the other wide variety of public benefits cited by courts leads us to believe that this purpose would weigh extremely heavily in favor of fair use. For example, in the Authors Guild v. HathiTrust case,^[6] the court made it clear that providing access to persons with disabilities was a strong public interest that weighed heavily in the fair use assessment. Similarly, other courts have found that allowing reproduction of the Zapruder film documenting Kennedy's assassination was in the public interest,^[7] and allowing redistribution of leaked internal memos about problems with electronic voting machines also favored fair use.^[8] 

The benefit to the public in providing remote coursework is obvious when it enables teaching to continue in the face of social distancing measures or quarantine, or when access to physical library materials is impossible. The public benefit of these measures is without a doubt of at least equal importance as in these cases.

The second factor examines the nature of the work used—is it more factual or creative, published or not? In cases like this, the second factor “has rarely played a significant role in the determination of a fair use dispute.”^[9] For remote teaching in the COVID-19 situation, the analysis should be the same. Read more....