The availability of so much information on the Internet is both a blessing and a curse. It’s a blessing because you have a wide variety of resources you could include in your online classes, but it can be a curse if you don’t know how to include those resources properly. Although copyright and plagiarism concerns can often seem confusing and even burdensome, there are actually several ways instructors can legally share the work of others in their online classrooms.

First, let’s cover some basic definitions.

Copyright and Plagiarism (Yes, There’s a Difference)

Did you know that copyright was part of the U.S. Constitution before the Bill of Rights? And that the reasoning behind it was not, in fact, to make instructors’ and students’ lives harder?

In fact, copyright law is meant to encourage the sharing of information (Brigham Young University, n.d.). Let’s think about why that might be true.

Imagine you’ve done some groundbreaking research in your field, but you haven’t decided where to publish it yet. While you’re talking to different journals, someone overhears you and grabs a copy of your notes, and then proceeds to take credit for your discovery and receive all the accolades that should have been yours. The next time you have a breakthrough, are you more likely to share your work or to keep it to yourself rather than risk being taken advantage of again?

Copyright is what protects you and other creators from those types of scenarios. In technical terms, copyright is legal protection for works fixed in a tangible form (United States Copyright Office, n.d.). In other words, copyright doesn’t apply to ideas or thoughts, but the moment you write down or record an original work, copyright law protects it. The work doesn’t need to be published to receive protection; copyright law still applies.

However, copyright protection doesn’t last indefinitely. Unless someone applies for an extension, copyright lasts for the life-span of the creator plus 70 years. After that, the work enters what we call the public domain. Anyone can freely use, copy, manipulate, and distribute works in the public domain without permission from the original copyright holder.

(Personally, my favorite example of using a public domain work is Pride and Prejudice and Zombies, in which the author takes the exact words of Jane Austen’s Pride and Prejudice and weaves in a subplot about a zombie apocalypse.)

In addition to the life-span of the creator rule, works created by the U.S. government automatically belong to the public domain, and some people create works specifically for public use (more on that later). However, you should always assume that a work is under the protection of copyright law unless it specifically states otherwise.

Related to but separate from copyright law is the ethical issue of plagiarism. Plagiarism is the act of taking someone else’s work and presenting it as your own without giving credit to the original creator. Plagiarism isn’t a legal issue and thus can be more subjective, but it is something that all academics must pay attention to when handling the work of others.

In general, many acts of plagiarism are also copyright infringements (and vice versa), but this is not always the case (Plagiarism Today, 2013). For some examples, see the Venn diagram below.

A Venn Diagram illustrating how copyright and plagiarism are separate concepts, but also overlap.

How to Legally and Ethically Use the Work of Others

Luckily for educators, there are several provisions in place to help you use portions of copyrighted materials in your classroom. Let’s look at the advantages and limitations of each provision, discussed roughly in the order you should consider when deciding how to use a copyrighted work.

Publisher Permission

Advantages: The surest protection for using someone else’s work is to ask the copyright holder for permission to use his or her work however you wish to use it in your class. After all, the purpose of copyright law is to give creators control over how their works are used, and if a creator is happy to let you use his or her work, then your use will not be a copyright infringement.

Limitations: Obtaining permission can be quite challenging. Sometimes the copyright holder is not immediately evident, or contact information may not be available. And even if you are able to contact the copyright holder, there is no guarantee that he or she will say yes or even respond in a timely manner before your class begins (if at all).

Linking

Advantages: If you are unable to obtain permission from the copyright holder, you can always provide a link to the original source that you want students to read or view (such as an online article of YouTube video). Links are simple to insert into your online class, and they allow you to give proper attribution without having to worry about the legality of using another’s work in your course.

Limitations: Some institutions prefer to host all course material on their learning management system, so linking out to other websites is not an option. Similarly, instructors must be mindful of the difference between sending students to other websites and embedding other sites’ content within the learning management system. Embedding is more likely to present a plagiarism problem if instructors do not make it clear that they are not the creators of the content they are including in the course.

In addition, some content on other websites may be behind a paywall or require users to create an account to access it, neither of which are ideal for students who may not want to pay additional fees or create additional accounts.

The TEACH Act

Advantages: In traditional classrooms, instructors are permitted under copyright law to display images, video clips, and portions of text during a class session (think of materials you would display on projectors). The Technology, Education, and Copyright Harmonization Act (TEACH Act) sought to specifically address the issue of how this provision applies to online classrooms. The general idea is that online instructors are permitted to disseminate the amount of content that they would display in a traditional classroom session without having to seek permission from the copyright holder (American University Library, 2010).

For example, an instructor may show clips of a feature-length film, but he or she would not be allowed to show the film in its entirely, because that would exceed the length of a traditional class session. Or an instructor may be able to display some images to illustrate a point about art styles in a certain time period, but he or she would likely not be permitted to scan dozens of images from art history textbook.

Limitations: Instructors must meet several stipulations for their use of copyrighted material to qualify for the TEACH Act (American University Library, 2010; Hoon, 2007):

  • The use must be under the direction or supervision of an instructor.
  • The use must be an integral part of a class session.
  • The use must be part of systematic mediated instructional activities.
  • The use must be directly related to and of material assistance to the teaching content (e.g., not a decorative image in a PowerPoint).
  • The use must be limited to students enrolled in the class.
  • The work must only be available for the duration of the class, and the instructor must make reasonable efforts to keep students from saving or disseminating the work after the course is over.
  • The class must contain a general copyright warning to students using the work(s).

Fair Use

Advantages: Fair use is a provision under copyright law that allows others to use portions of a copyrighted work for purposes of commentary and criticism (which is often the case in academic settings). Fair use does not require you to obtain the copyright holder’s permission and allows you to copy limited portions of the other’s work into your own (with proper references and citations, of course).

Limitations: Fair use is not a blanket excuse to use any amount of a copyright work however you want. Fair use is still a legal matter, and in the event that the use of a work is brought to trial, judges will consider the following four factors in determining the legality of the use. Thus, whenever you use another’s work, you should aim to meet these four standards (Stanford University Libraries, n.d.; Columbia University Libraries, n.d.):

  • The purpose and character of your use: In general, nonprofit or educational uses are more favorable than commercial uses. In addition, your use is more likely to fall under fair use if it is transformative of the original work (in other words, if it adds new insight to the original work) rather than just repeating the author’s original words or points.
  • The nature of the copyrighted work: Unpublished works are less likely to fall under fair use than published works because the law favors the creator being the first to publish all portions of his or her work. Likewise, fiction is less likely to fall under fair use, because creative works are more unique to the author than nonfiction works that deal with facts and figures.
  • The amount and substantiality of the portion taken: This factor is both a quantitative and qualitative concern. Fair use does not specify a certain percentage that you are allowed to use, but in general, the less you use of an original work, the more likely you are to be able to claim fair use. For example, using a quote from a chapter is more likely fair use than using a whole chapter of a book (even if the chapter is a relatively small portion of the book). As for the qualitative concern, the courts look at whether you use the “heart” of the original work—that is, whether you use the most iconic part of a work as your own. For example, if you use the refrain “I have a dream” in a speech, this will likely not be considered fair use, because this phrase is the “heart” of Dr. Martin Luther King Jr.’s “I Have a Dream” speech (even though quantitatively the phrase is not very many words).
  • The effect of the use upon the potential market: The main consideration here is whether your use will deprive the creator of income he or she might have earned from the work. For example, if in your class of 20 students you post publisher companion materials from a textbook that the publisher intended for individual students to buy, you are cutting into the publisher’s earnings on that material. Similarly, you can’t take a work in one format and transform it into a different format without the copyright holder’s permission. For example, you can’t take a poem and make it into a song, because that deprives the poet the opportunity of profiting from his or her poem in the music industry.

Open Educational Resources (OERs)

Advantages: Open educational resources (OERs) are materials that people have created expressly for educational use. OERs typically have an open license, meaning that the creators intend others to use and distribute the work widely without expectation of payment. OERs are also becoming more and more creative and innovative along with the rest of the online education industry, so there are many rich resources available. Examples include:

Limitations: Finding an OER that fits your specific purposes can sometimes be challenging, especially if you already have a copyrighted work in mind and want an exact replacement. In addition, you need to check each individual OER’s license to see whether you can change the work, whether you need to link it back to an original source, and so on.

Conclusion

Copyright law seeks to protect creators so that they can share their works with the public without fear of losing ownership of their creations. Instructors can feel similarly secure sharing portions of copyrighted works with their students once they know the provisions under copyright law that allow them to do so.

For specific examples of copyright issues that instructors often encounter in their online courses, see our article “Copyright Infringement and Plagiarism: Yes, Instructors Can Do It Too.”


References

American University Library. (2010). What faculty need to know about copyright for teaching. Retrieved from https://www.american.edu/library/documents/upload/Copyright_for_Teaching.pdf

Brigham Young University. (n.d.). Module 1: Copyright basics and requesting information. Copyright 101. Retrieved from http://copyright101.byu.edu/module1/page3.htm

Columbia University Libraries. (n.d.). Fair use. Retrieved from https://copyright.columbia.edu/basics/fair-use.html

Gasaway, L. (n.d.). When U.S. works pass into the public domain. Retrieved from http://www.unc.edu/~unclng/public-d.htm

Hoon, P. (2007). Using copyrighted works in your teaching FAQ: Questions faculty and teaching assistants need to ask themselves frequently. Retrieved from http://www.knowyourcopyrights.org/storage/documents/kycrfaq.pdf

Plagiarism Today. (2013, October 7). The difference between copyright infringement and plagiarism. Retrieved from https://www.plagiarismtoday.com/2013/10/07/difference-copyright-infringement-plagiarism/

Stanford University Libraries. (n.d.). Measuring fair use: The four factors. Retrieved from http://fairuse.stanford.edu/overview/fair-use/four-factors/

United States Copyright Office. (n.d.). Copyright in general. Retrieved from http://www.copyright.gov/help/faq/faq-general.html