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Online Teaching During Pandemic Raises Copyright Concerns

April 3, 2020, 10:00 AM

The sudden shift to online teaching is raising a host of copyright questions for educators.

Grade-school teachers are unsure about whether it’s okay to read books to students online. College professors wonder about posting copyrighted course materials that students left behind when campuses closed because of the new coronavirus. Using music or photographs in online courses triggers second-guessing.

The situation highlights some uncertainties about how copyright law applies to common educational practices when teaching shifts quickly from classrooms to an online environment.

The classroom can be something of a “sacred place,” Harvard University copyright adviser Kyle Courtney said, where instructors can take for granted reading a poem to students or showing a movie. Copyright law has an exemption for face-to-face teaching that doesn’t apply to the distance learning that schools are orchestrating during the Covid-19 pandemic.

Some publishers have given educators permission to use their content, and the fair use doctrine allows use of some copyrighted materials in online teaching without permission. But the sudden changes have compelled educators nationwide to seek assurances.

“The last two weeks of conversations I’ve had have been like the last three years all in one window,” Courtney said. “Everybody needed help.”

‘Flexible’ Licenses

Various publishers, including Macmillan Children’s Publishing Group and HarperCollins Children’s Books, have said teachers may post videos reading books to their students, under certain conditions. Harry Potter author J.K. Rowling also gave permission for her books to be read aloud.

“Across all sectors we see commercial publishing houses, nonprofit societies, and university presses working to address the crisis, with many publishers creating special programs, flexible licenses, and other initiatives to propel reading, learning, and commerce,” Maria Pallante, president and CEO of the Association of American Publishers, said in a statement.

But the permissions don’t cover all the books that teachers want to read, and there can be inconsistent limitations.

Macmillan, for example, says it has no objection to teachers and librarians posting videos reading books to students, as long it’s done on a “non-commercial basis,” according to the AAP.

HarperCollins says recorded videos of readings may be uploaded to YouTube as long as they are marked “Unlisted,” meaning that it doesn’t appear on any public YouTube pages. Scholastic Inc. requested that teachers read a disclaimer that they have permission from Scholastic, and delete the videos by the end of June.

While permission from publishers is great, it’s different from fair use, which allows many read-aloud activities online, copyright specialists said in a recent webinar hosted by the American University and other institutions. They outlined various scenarios where teachers could look to fair use for support, including reading multiple picture books as part of a broader lesson.

“Copyright is a more reasonable law than some people present it, on social media or otherwise, when they say, ‘You can’t do this or you can’t do that,’” American University law professor Michael Carroll said during the webinar.

College Textbooks, Movies

College professors with more sophisticated curriculums are seeking clarity as well. Harvard’s Courtney said he received a wave of questions from professors wondering about posting portions of textbooks or other purchased materials online.

“That was a huge deal because no one had their books,” Courtney said.

Cengage, one of the largest textbook publishers, has in recent weeks said it is offering college students free access to its digital platforms and more than 14,000 e-books. Cambridge University Press is offering free online access to college textbooks.

Professors are trying to navigate other forms of media as well. Those who teach film classes, for example, weren’t sure how to proceed. Others have run into issues trying to incorporate music and television clips into their lectures.

Derek Muller, a visiting law professor at Notre Dame Law School, said he received several copyright challenges after he posted on YouTube a 2-hour lecture for an evidence class he is teaching. The lecture included a 21-second clip of Bush’s “Machine Head,” and a 12-second clip of the Spice Girls’ “2 Become 1” video.

“I didn’t think that there would be so many, and so quick, automatic copyright issues,” Muller said. Most of the claims were quickly waived, but Muller still decided to upload the lecture to an internal school server.

Allaying Teacher Fears

Hoping to provide guidance, a group of copyright specialists at colleges, universities and other organizations last month wrote a statement on fair use that was signed or endorsed by more than 200 experts. It has circulated among grade school educators as well.

Making course materials available to students during the pandemic will “almost always be a fair use,” the group wrote in the statement. Showing full-length movies or television shows can be more tricky, and the group encouraged instructors to use video through licensed services whenever possible.

“One of the reasons that this statement was put together was to address and allay some of the fears that faculty, students, and librarians are facing when rapidly shifting to moving their courses online,” said Sara Benson, a copyright librarian and assistant professor at the University of Illinois.

The group also put together a list of video and other content that publishers have made available for free—called “Vendor Love In The Time Of Covid”—during the outbreak. Copyright specialists have also held informational “Virtual Copyright Office Hours” on Zoom.

“We want to make copyright the least of your concerns,” Courtney said. “Be worried about your students, their health, their welfare, because that’s most important.”

· For additional legal resources, visit Bloomberg Law In Focus: Coronavirus (Bloomberg Law Subscription)

To contact the reporter on this story: Matthew Bultman in New York at mbultman@correspondent.bloomberglaw.com

To contact the editors responsible for this story: Roger Yu at ryu@bloomberglaw.com; Keith Perine at kperine@bloomberglaw.com

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