By Cecil Key
As we all know, the Covid-19 virus has placed us in unprecedented circumstances. One such circumstance is that many non-educators are finding themselves thrust into the role of teaching students who would normally be gathered in a designated classroom via remote learning, often with no two students – or the instructor – in the same location. Fortunately, the technology available to us in the 21st Century allows this remote learning to be possible at all levels. High-speed internet and videoconferencing platforms provide the means to continue educational activities even as the institutions have been made unavailable. But there is a catch. This 21st Century technology is still subject to the limitations of 20th Century intellectual property laws.
For example, you may have heard that famed author J.K. Rowlings granted permission to allow her renowned Harry Potter books to be read in a remote learning environment without fear of running afoul of her copyrights in the books. To some, this might seem unnecessary – why should copyright law prevent the reading to children when our local and state governments are requiring us to teach remotely? Also, should the copyright laws apply when we’re simply reading as we normally would, just to students in remote locations, or when what we’re reading is a textbook, rather than a novel?
The truth is there are circumstances where the copyright laws may not be an impediment. However, it is complicated, and here’s why.
Copyrights are an exclusive right, meaning that the author of the work has the right to prohibit others from using the work. 17 U.S.C. § 106. The right to exclude extends to copying, displaying and performing the copyrighted work and derivatives of the work “either directly or with the aid of a machine or device.” 17 U.S.C. §§ 102, 106. There are exceptions. For example, by statute, the performance or display of original works cannot be copyright infringement if done so “in the course of face-to-face teaching activities of a nonprofit educational institution.” 17 U.S.C. § 110(1). The same is true for the performance or display of nondramatic literature or music that is transmitted outside the classroom, provided the performance or display is “made by, at the direction of, or under the supervision of an instructor as an integral part of a class session offered as a regular part of the systematic mediated instructional activities of a governmental body or an accredited nonprofit educational institution.” 17 U.S.C. § 110(2).
The reading of materials to a class of students as part of a remote learning session is the “performance and display” in the course of teaching activities and, at first blush, appears to be exempt from copyright infringement under these provisions. Consider, however, what is likely to be a common scenario in the current Covid-19 world where the instructor is not a professional educator, the reading of the work is done from the instructor’s home, and each student is in a different physical space, such as his/her home.
Under these circumstances, the remote session is probably not a “classroom or similar place devoted to instruction.” It is also probably not face-to-face. In fact, the entire reason for the remote learning is so that we do not have to be face-to-face. It is also unlikely to be in a place devoted to instruction. This creates a paradox. The remote session is being conducted because the classroom is not available, but the copyright exception arguably does not apply precisely because the session is not in a classroom.
The exemption for transmission outside the classroom, which would solve the conundrum resulting from the classroom being unavailable, probably would not apply either. The exemption is limited to nondramatic literary or musical works. So, Harry Potter would not count. And the performance or display must be (1) by or at the direction of a professional instructor, (2) part of a class session offered as a regular part of systematic mediated instructional activities and (3) offered by a governmental body or accredited nonprofit educational institution. Again, in the scenario above, the instruction is being offered by those who are not normally instructors and is not part of a regular systematic mediated instructional activity offered by an established educational institution. In fact, the remote session is likely being conducted precisely because the regular instructors and established educational institutions are not available. And it’s probably fair to say that this environment is a distinct departure from the regular and systematic educational activity.
Unfortunately, the fact that the remote teaching sessions are the direct result of state and local government orders does not override these results. This very question has been the subject of litigation over the years, and the courts have to date provided no clear answer. This may all seem arcane and Draconian, but the laws are designed to protect an author from having her works distributed without permission from or compensation to her. That is the fundamental purpose of a right to exclude.
There is, however, no need to panic. The copyright statute also has a provision that exempts from copyright infringement activities such as use of the work for “teaching” and “classroom use.” Thus, a remote learning session that is clearly for the purpose of continuing the children’s education while the regular classroom is unavailable, and not for a commercial purpose, would weigh in favor of statutorily exempted “fair use.” See 17 U.S.C. § 107. The reading or display of a factual work would also favor exempting the use as fair use. See id.
What is the difference? The general fair use exceptions are determined according to all the facts and circumstances, meaning establishing fair use can require significant factual development. The specific education exceptions, however, are more straightforward so long as the specific requirements are met.
The best course of action is to try to let the regular teacher or instructor copy, perform or display the copyrighted work to the extent possible. It could also help if a particular spot (e.g., a designated room) is dedicated to the providing and receiving of instruction until the students are allowed to return to the educational institution, and if as little of the work as is possible is copied, performed or displayed, especially if the work is a highly creative one such as a novel or musical work. Finally, the performance or display can be limited to a “normal circle” of family and acquaintances, which is expressly permitted by the copyright statute. See 17 U.S.C. § 101.
For those involved in remote learning, these steps will help minimize copyright concerns as well all do our part to flatten the Covid-19 curve.