The sudden move to distance education for K-12 as well as university students mandated by the COVID-19 shutdown of schools has left educators scrambling for new resource materials. Some educators believe that the concept of copyright fair use is flexible enough to adapt to these unique and extreme circumstances. But there has been an outcry from authors who see themselves being deprived of a market for their works without their consent. Some authors are granting blanket permissions for the use of their works, while others say they would like to grant blanket permissions but need to defer to the decisions of their publishers. Some publishers, bombarded with requests for permissions from teachers to do live or recorded story times, are implementing temporary relaxations of their policies. Teachers of younger students and librarians are recording themselves reading stories online without knowing if they are allowed to do so. The only generalization one can make is that there is massive confusion out there!
Fair Use Principles
Traditionally fair use is very fact-specific and requires the analysis in each situation of four key factors:
- whether the use is for commercial or non-commercial purposes
- the nature of the work exploited
- the substantiality of the portion used in relation to the whole work and
- the effect on the market for or value of the original work.
The four factors are not to be taken in isolation and must be weighed together. Moreover, they are not exclusive. One additional highly significant factor is the sophistication of the party making the fair use claim, and underpinning the fair use doctrine is a requirement of good faith and fair dealing.
The Current Landscape
On March 13, 2020, about 150 library copyright specialists involved in higher education in the United States and Canada issued a statement advocating an expanded reading of fair use under the current emergency situation (Public Statement of Library Copyright Specialists: Fair Use & Emergency Remote Teaching & Research).
The Statement concluded:
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.
On March 24, 2020, the Internet Archive (IA) announced a new National Library Emergency, which justified its making millions of in-copyright books freely available online without restriction on its Open Library site.
Are the Library Copyright Specialists justified in their conclusion? Is the IA on solid legal ground?
The Internet Archive
Let’s take the easier one first. The IA’s position is not legally defensible. In fact, it is inviting liability as a contributory copyright infringer. For background, the IA (known for its internet archive called the “Wayback Machine”) has been in a long-running battle with authors who claim that its “Open Library” policy of scanning in-copyright works without buying or licensing the rights to them and then lending the resulting e-books to anyone who visits their site violates their copyright rights. Until now, Open Library limited its lending to one user at a time for each hard copy book scanned for a 14-day period. Now it is adding fuel to the fire with its new National Emergency Library, which eliminates the waiting lists to allow unlimited uses at one time by people around the world. Although the IA says its National Emergency Library will only operate through June 30, 2020 or to the end of the national emergency, whichever is later, one needs to wonder about what permanent consequences its temporary policy will have for authors.
It is notable that, in the FAQs on the National Emergency Library, the IA holds back on the reading aloud of its books by teachers but concludes that fair use allows most uses online that are allowable in the classroom and that “[i]n a temporary emergency involving extensive school closures, teachers and schools should feel even greater confidence in reading aloud through digital platforms, including platforms without access controls, if necessary to reliably reach students.”
The Copyright Specialists’ Public Statement
The Public Statement of Library Copyright Experts bears more careful consideration since it addresses each of the four fair use factors. Here are some conclusory excerpts:
Factor 1: “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.”
Factor 2: “The second factor ‘has rarely played a significant role in the determination of a fair use dispute.’ For remote teaching in the COVID-19 situation, the analysis should be the same.”
Factor 3: “For copies made to support rapid adoption of remote teaching, users should be thoughtful about this factor, but not agonize over it: a use can be fair as long as it reproduces what is reasonable to serve the purpose.”
Factor 4: “While in normal circumstances there may be licensing markets for some items, the spontaneity of a move to remote teaching under emergency circumstances reduces the importance of this factor. Checking for and relying on licensed alternatives bolsters the case for fair use under the fourth factor, but lack of time to check for licenses should not be a barrier to meeting the needs of our communities.”
Although there may be some merit to each of these conclusions, the fundamental problem is that the fair use analysis, which has to look at the facts of a specific situation, cannot be done on a blanket basis to authorize wholesale copying.
In addition, it is usually the fourth factor — the effect of use upon the potential market for or value of the copyrighted work that courts have considered the single most important element of fair use. Its importance simply cannot be dismissed — by sophisticated copyright specialists — on the basis of an “in gross” conclusion there is a lack of time to check licenses.
Publishers’ Temporary Solutions
Many publishers are stepping up with interim solutions that do not violate their agreements with authors. For example, Simon & Schuster has announced a temporary relaxation of fair use permissions, allowing use of their materials until the end of June as long as they are appropriately credited. Other publishers have adopted similar policies, requiring credit, closed networks and imposing a termination date on the permission. Assuming normalcy returns by the end of the school year, permissions will once again be required.
Special Story Time Solutions
Publishers of children’s books are responding to the need of teachers to provide live and recorded story times. Despite the Copyright Specialists’ glib conclusion that this should be fine under fair use principles, publishers are creating temporary permissions. For a specific example, see Scholastic Press’s permissions for teachers and educators.
Where does this leave us?
While some may be tempted to stretch the fair use analysis to sanction free use of educational materials on a blanket basis, such an approach runs counter to the fact-specific balancing that the law requires. The approach taken by publishers leaves fair use principles intact while finding a temporary solution to what all agree is an urgent problem.
Fair use is a defense against claims of copyright infringement and can be relied on where there is no direct permission from a publisher. Importantly, in the context of distance learning in this COVID-19 era, educators, authors and publishers should also evaluate any use for educational purposes that is permitted by the TEACH Act. The TEACH Act is an exemption from copyright infringement authorized by law, and so where it is applicable, you never need to reach the question of fair use. See our recent blogs and our TEACH Act FAQ.
Of course, for any publishers, authors or educators who have ongoing questions about teaching in the current crisis, we are here to help.