I recently attended a seminar led by Mark Konecny, Scholarly Communications Strategist with the University of Cincinnati Libraries. His topic: How instructors and students can avoid copyright infringement and the hassles and cost that come with it.
The first important thing I learned: It is very easy now for companies to find anyone who is using their material (ads, data, words, tables, photos, videos) without their permission. The reason is that numerous web crawlers are available whose sole purpose is to trawl the web for images and other material that is being illegally used. Mark told of a bar in Machu Picchu that had had a picture of Mickey Mouse on its wall for decades. Recently, though, the bar owner was approached by a copyright attorney, ordered to take down the image, and slapped with a steep fine. If you are using others’ media without their permission, they will find you and take you down!
The next important thing I learned: Material that is being borrowed for education purposes and is “inward facing”—that is, not pointed out toward the public—requires much less permission-seeking that material that is “outward facing.”
Using Others’ Material in Inward-Facing Educational Media
The Educational Fair Use Guidelines (first created in 1976) and the T.E.A.C.H. Act (Technology, Education and Copyright Harmonization Act of 2002) spell out the circumstances in which material borrowed for the classroom—whether face-to-face or virtual–can be used without permission. When considering copyright infringement cases related to teaching, judges will consider these four factors:
- The purpose and character of your use. If the material is being used within/for the classroom, you should cite the origin of the material to avoid plagiarism, though that won’t be a sufficient safeguard against being charged for copyright infringement. To be safe on those grounds, you need to be able to demonstrate that you are making educational use of the material by integrating it into your teaching lesson, which is viewed as “transforming” the work from a piece of property into a means of teaching. (So, for example, you could include a clip from a movie or an ad in your bcomm class if you analyze it, draw a lesson from it, make a point with it, or otherwise incorporate it into a course topic or assignment.)
- The nature of the copyrighted work. The key factors here are whether the work is factual or artistic/creative/fictional and whether it has been published or not. Factual works have looser restrictions because their contents are considered beneficial to the public. Published works also have looser restrictions than unpublished work because the author of unpublished work needs greater protection from theft of the material. But you should not be casual about using any copyrighted work.
- The amount and substantiality of the portion taken. There are no hard and fast rules here, but the general idea is that you’re better off copying less than more. For example, you might include a few pages or visuals from a publication but not a whole chapter. That said, if you post a pdf of an article or chapter on your school’s course management system (e.g., Blackboard) and your school’s library has already paid for your access to this material, you should be on fairly safe ground. Certainly you will also be on safe ground if you include links to whole books in your library’s e-brary. On the other hand, if you print out hard copies for your students and charge them for the copying cost, that would probably be too commercial for a judge’s taste.
- the effect of the use upon the potential market. In no way should your use of others’ material rob them of the just rewards for their work. Do not share with students any material that they would otherwise need to pay for. If you want to show a movie or part of a movie in your class, for example, it’s best to buy the DVD yourself and show it. Next best is inserting a link to the clip in your course assignment or PowerPoint slide. Not as good is streaming the movie, and not good is downloading the movie for free and showing this copy to your class. Same for music. As The T.E.A.C.H. Act says, all copies used must be lawfully made copies. And those copies need to have a specific, short life.
These same guidelines apply to your students if they are incorporating others’ material into their assignments and sharing them with others in the class. If, on the other hand, their work will be made public in any way, in the form of posters, videos, websites, brochures, or other outward-facing media, the guidelines get much more strict.
Using Others’ Material in Outward-Facing Media
When access to other’s materials is not limited to those being used in a course, the borrowing game becomes much more dangerous. Here, one must rigorously honor copyright notices and request permission to use any borrowed material that is not considered to be in the public domain.
For example, if you or your students use Google Images to find the perfect image for a presentation, poster, brochure, or website, you must go to the source of the image and try to get permission. The rights holder will probably specify the way he/she wants the source to be credited.
Same with graphs from eMarketer, blog posts from Forbes, copyrighted music, and other material you might want to use in an educational but outward-facing way.
Sometimes these sources will say no; sometimes they will say yes; sometimes they will say yes but with restrictions and/or payment.
Finding Permission-Free Photos, Videos, and Other Materials
Some publishers of media that you may want to use will allow you to use it with minimal or no permission.
- YouTube says that you can put “the occasional YouTube video in your blog to comment on it or show your readers a video that you like, even if you have general-purpose ads somewhere on your blog.” (If you’re creating a YouTube video that uses copyrighted material, though, you must get the owner’s permission to avoid the risk of getting a take-down notice.) To find music that it’s ok to use without permission in your video, read about the YouTube Audio Library.
- Creative Commons is a nonprofit organization that, in their words, gives “everyone from individual creators to large companies and institutions a simple, standardized way to grant copyright permissions to their creative work. The combination of our tools and our users is . . . a pool of content that can be copied, distributed, edited, remixed, and built upon, all within the boundaries of copyright law.” Content creators on Wikipedia, Flickr, Vimeo, YouTube, and other platforms are given the option of licensing works with CC licenses, and many other creators simply go to CC and upload work that they are fine with sharing. The creators select what kind of licensing they want to have govern the re-use of the work and, as long the re-user meets the terms of the license for the photo or he/she wants to use, the re-use is fair. Some copyright holders, like Shutterstock, will charge you a (usually small) fee to download/use an image; others will allow free use, even commercial use, if the sources is attributed, while others forbid commercial use; and others will say “free for commercial use; no attribution required.”
- Unsplash offers a wide range of photos that are “licensed under Creative Commons Zero which means you can copy, modify, distribute and use the photos for free, including commercial purposes, without asking permission from or providing attribution to the photographer.” (Thanks to Heather Smith for telling me about this resource.)
- Morguefile is “a community-based free photo site, and all photos found in the Morguefile archive are free for you to download and re-use in your work, be it commercial or not.” (Thanks again, Heather.)
- Pixabay offers images and videos that have been “released free of copyrights under Creative Commons CC0. You may download, modify, distribute, and use them royalty free for anything you like, even in commercial applications. Attribution is not required.” (Yet again, thank you, Heather.)
The Bottom Line
With copyright-infringement crawlers now searching the web for infringements, you and your students must take the ownership of materials seriously. Universities are required by law to post copyright guidelines, like these from my school. If there is any chance that your intended use of the material may incur a take-down notice (and possibly a heavy fine), consult with knowledgeable personnel at your school. (See Paula’s post “Classroom Resources: Copyright Law” for additional online guides.)