What follows is the text of an email sent to MinnState Librarians from Gary Hunter, System Director for Intellectual Property sent on 3/25/2020:
I received multiple inquiries about faculty transitioning their face-to-face (F2F) courses to online. The primary questions is how much can they copy and upload to D2L? After discussing the matter with General Counsel, I am providing the following guidance on the copying of materials.
While a COVID-19 pandemic doesn’t create copyright exceptions, more than normal copying can be supported by fair use, the TEACH Act, or a combination of the two. In the past, we have tended to use the minimum application of fair use and the TEACH Act (e.g., 10% or 1-2 chapters). In the current times, we are looking at the maximum amount of materials that may be copied using these two provisions of the Copyright Act. While the exact amount is unknown, larger than normal amounts of copying may occur, just try to limit it to the amount necessary to transition the F2F courses to the online format. Don’t worry about faculty being more assertive in the application of fair use and the TEACH Act.
Please ask the instructors to do the following:
Questions and concerns about copying course materials and textbooks should be submitted to Gary Hunter, System Director for Intellectual Property at firstname.lastname@example.org.
There are a lot of pedagogical and technical issues that make the shift from in-person to online teaching challenging, but for once, copyright is not a big additional area of worry! Most of the legal issues are the same in both contexts. If it was okay to do in class, it is often okay to do online, especially when your online access is limited to the same enrolled students.
Original content from this document is from the University of Minnesota Libraries. This document is evolving and subject to change. Last updated March 24, 2020.
If it was legal to show slide images in class, it is likely legal to show them to students via live video conferencing or in recorded videos. This may be a surprise if you have heard that there is a big difference between class lecture slides and online conference slides - but the issue is usually less offline versus online, than a restricted versus an unrestricted audience. As long as your new course video is being shared through course websites limited to the same enrolled students, the legal issues are fairly similar.
Many instructors routinely post a copy of their slides as a file for students to access after in-person course meetings, which also likely doesn't present any new issues after online course meetings.
Here, the differences between online and in-person teaching can be a bit more complex. Playing audio or video off of physical media during an in-person class session is 100% legal under a provision of copyright law called the "Classroom Use Exemption". However, that exemption doesn't cover playing the same media online. If you can limit audio and video use for your course to relatively brief clips, you may be able to include those in lecture recordings or live-casts under the copyright provision called fair use. For media use longer than brief clips, you may need to have students independently access the content outside of your lecture videos.
There may be some practical differences in outcomes depending on where you post new course videos - on the University's MediaSpace platform it is easy to control access at the level of individual videos, and to connect to your course in D2L. If you post videos on YouTube, the same basic legal provisions apply however, it is more likely that videos posted on YouTube may encounter some automated copyright enforcement, such as a takedown notice, or disabling of included audio or video content. These automated enforcement tools are often -incorrect- when they flag audio, video, or images included in instructional videos.
Hopefully, by mid-semester, your students have already gotten access to all assigned reading materials. If you want to share additional materials with students yourself as you revise instructional plans, or if you want students to share more resources with each other in an online discussion board, keep in mind some simple guidelines:
Linking to publicly available online content like news websites, existing online videos, etc is rarely a copyright issue. (Better not to link to existing content that looks obviously infringing itself - Joe Schmoe's YouTube video of the entire "Black Panther" movie is probably not a good thing to link to. But Sara Someone's 2-minute video of herself and her best friend talking over a few of the pivotal scenes may be fair use, and is not something you should worry about linking to.)
Linking to subscription content through the A. C. Clark Library is also a great option - a lot of our subscription content will have DOIs, PURLs, or other "permalink" options, all of which should work even for off-campus users. For assistance linking to any particular library subscription content, contact email@example.com
Making copies of new materials for students (by downloading and uploading files, or by scanning from physical documents) can present some copyright issues, but they're not different from those involved in deciding whether to share something online with your students when you are meeting in-person. It's better not to make copies of entire works - but most instructors don't do that! Copying portions of works to share with students will often be fair use, and at times (especially in unusual circumstances, or with works that aren't otherwise commercially available) it may even be fair use to make lengthier copies.
Where an instructor doesn't feel comfortable relying on fair use, a subject specialist librarian may be able to suggest alternative content that is already online through library subscriptions, or publicly online content.
Showing an entire movie or film or musical work online may be a bit more of an issue than playing it in class - but there may be options for your students to access it independently online. The A. C. Clark Library already has quite a bit of licensed streaming video content, which you are welcome to use in your online course.
Contact firstname.lastname@example.org for further information or assistance.
This web site presents information about copyright law. The A. C. Clark Library makes every effort to assure the accuracy of this information but do not offer it as counsel or legal advice. Consult an attorney for advice concerning your specific situation.