The Four Factors
The four factors of ‘fair use’ within Copyright Law should always be considered when using copyrighted materials for teaching purposes. Due to our current crisis situation, these four factors will be interpreted more liberally than usual. According to the Public Statement of Library Copyright Specialists: Fair Use & Emergency Remote Teaching & Learning, "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." This means that extensive scanning of copyrighted materials is possible, especially for materials that will be used during the time of remote teaching only.
Guidance on the Use of Video
While fair use offers a clear path for most uses in rapidly shifting to remote teaching, some uses raise other concerns. In particular, copying a full-length movie or television episode from a DVD for use in teaching may require circumvention of technical protection measures, which is prohibited under the Digital Millennium Copyright Act (“DMCA”). Like fair use, the DMCA is designed with flexibility in mind—it empowers the Librarian of Congress to create exemptions allowing circumvention under certain circumstances. Unfortunately, the current exemptions extend only to copying “short portions” of motion pictures for use in certain types of teaching, not to copying entire works, even when doing so is clearly fair use. Courts disagree on whether circumvention violates the DMCA when the underlying use is non-infringing (for example, because of fair use) and on what constitutes circumvention. Individual institutions will need to make their own assessments of this issue in consultation with their legal counsel or administration. When possible, we encourage using video through licensed services. From Netflix, Hulu, and Amazon Prime to PBS and cable channels, many films are readily available, either for free or after payment of a relatively low fee for access. From Public Statement of Library Copyright Specialists: Fair Use & Emergency Remote Teaching & Learning
