KBS Reference Desk: Virtual Instruction and Copyright

Q:        The spread of COVID-19 has required the district to rely on virtual instruction. Is it permissible under the copyright laws for a teacher to read a book or show a film online during virtual instruction? 

A:        Reading a book aloud during virtual instruction may be considered fair use and permissible, but showing a full-length film raises concern.

The language and legislative history of the Copyright Act, as well as judicial interpretations since its enactment, uniformly express a tolerance towards educational use of copyrighted material. The preamble of the “fair use” statute provides that fair use may include “teaching,” and the first “fair use” factor requires a court to consider “the purpose and character of the use including whether such use is of a commercial nature or is for nonprofit educational purposes.” Case law demonstrates that “fair use” is an open-ended and context-sensitive standard that allows a court to consider the totality of the circumstances in rendering a decision. The circumstances in the present case would likely be considered significant: the worldwide spread of COVID-19 has required the district to rely on virtual instruction to teach its student population and mitigate educational disruptions caused by the virus.

The Book: Reading a book aloud and posting a video of it online is likely to be considered the equivalent of copying and disseminating the physical material (the words). The fact that the content is being put into a different medium (video and oral reading), instead of in print, does not stop the action from “infringing” on the copyright holder’s rights, including the right to compose derivative works (such as an audiobook). However, if the fair use exception applies, then no infringement occurs. 

In the above hypothetical, the fact that the teacher is using the material for an educational purpose weighs heavily in the district’s favor in any fair use analysis. Additionally, if the book is a factual work (such as a biography) instead of a fictional work (such as a novel or play), this too could weigh in the district’s favor. However, the fact that the teacher is reading the entire book, as opposed to a portion, may weigh against the district.  Finally, if the practice would likely cause market harm to the publisher, this too could weigh against a finding of fair use. As such, teachers should tread carefully when posting oral narrations online of full-length books. If a teacher does post such content, he or she should ensure the following:

1.      That the content is only accessible to students enrolled in the class, and only for a limited amount of time;

2.      The book should be directly related to the topic(s) being covered in class, and

3.      The teacher should announce during the video that the book may be protected by copyright.  

As an alternative, districts may consider using books published by Scholastic, Inc., which has temporarily revised its copyright policy to permit online read-alouds when a user complies with a short list of instructions.

The Film: Showing a full-length film through online video instruction likely violates the Digital Millennium Copyright Act (DMCA), which protects how videos are copied and disseminated. Posting a video of a video would likely circumvent and disable the protection measures on the original video, which is what the DMCA aims to prevent. While we would hope that a court would be forgiving under the circumstances, we recommend against teachers posting full-length films through video instruction.

For specific questions concerning copyright and virtual instruction, contact your school attorney.

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