When using copyrighted works for teaching, instructors are advised to take advantage of copyright limitations and exceptions and to be responsible users of copyrighted works. While some education uses fall under copyright limitations and exceptions, not all educational uses are a fair use and may require more consideration. These guidelines are intended to help intructors make decisions for the benefit of students and Rutgers.
Displaying or performing works in the physical classroom
The copyright law has a simple and useful exception for showing works in the physical classroom, such as on Powerpoints or screen projections.
Under the exception in Section 110(1), in a classroom or similar place devoted to instruction in a nonprofit educational institution, it is permissible to display or perform works, even if their entirety, provided that when using a motion picture or other audiovisual work, the copy used has been lawfully made. This means that you may display or perform works (text, images, musical, audio, and audiovisual works) during a class session in face-to-face teaching, as long as any audiovisual works used are lawfully made copies. Pirated versions must not be used. It is understood that any license associated with the work applies.
Keep in mind that this exception only covers physical classroom use for viewing and listening. It does not cover reproduction and distribution of materials as handouts or assignments, use in learning management systems, or use in E-reserve, all of which are assessed under fair use. For streaming audiovisual works other than in the physical classroom, please see section on Streaming audiovisual works below.
I am a Rutgers instructor interested in showing to my students in the classroom a DVD from the library's collection. It’s a lawfully made version, of course. Is this OK?
Yes, as long as there is no license associated with the work that would prohibit this.
Providing electronic access to course materials in online and hybrid teaching
For quick and easy instructions on use of learning management systems at Rutgers, see Using learning management systems: To Do and Not To Do.
Linking to works
Generally, in the electronic environment, the easiest option for instructors is to link to online content accessed in RUL and other databases, rather than copy it into a learning management system (eCollege, Sakai, etc.), because:
- Many databases do not permit users to place the contents in a learning management system.
- Linking keeps students aware of the terms and conditions by which they are permitted to use the material. Students need to know this. For among other reasons, there are commercial websites that encourage students to upload course material, including lessons, assignments, and exams, from learning management systems in return for money or the promise of higher grades. Students need to understand what is lawful and what is not.
The quickest and easiest way to make material available is to link to lawful material rather than download it. If you link, you don’t need to think more about it. Make teaching life easy- just provide a link for students.
Use of learning management systems
Learning management systems are intended to be used for:
- Instructor’s copyrighted material (lessons, assignments, exams, etc.)
- Linking to lawful online content
- Copies of unlicensed materials that fall under the fair use exception after a reasonable assessment (mainly excerpts, portions of works, short works)
- Materials for which permission has been obtained or for which a license permits the use.
Learning management systems are not intended and should not be used to substitute for purchase of textbooks or other course materials when they are available for purchase.
Access options for the learning management system
For reproducing, distributing, displaying, or performing works electronically as reading assignments, illustrations, or source materials, the full array of access options are:
- To link to, rather than copy, works available online. This is the recommended means of making material available to students because it is easy and involves the least amount of concern. Links should only be made to lawful material.
- To place electronic versions of the material in the learning management system. This involves a license review or a fair use assessment, or both, by the instructor. Licensed library resources that are placed in a learning management system (e.g., using Leganto) do not need additional license review or fair use assessment.
- To place the material with Rutgers University Bookstore for compilation as a digital coursepack. The Bookstore will obtain copyright permissions and the costs will be passed on to the students in the cost of the coursepack.
- To place electronic versions of the material on reserve. This involves a license review or a fair use assessment, or both, by the instructor.
Legal options for the learning management system
For reproducing, distributing, displaying, or performing works electronically as reading assignments, illustrations, or source materials, the full array of legal options are:
- To link to lawful online content.
- To use open access materials that have been made available under terms that permit the intended educational use.
- To use public domain materials.
- To use one’s own content, for which copyright was retained by the instructor or for which the instructor has retained rights for educational uses even if copyright was transferred to another entity.
- For unlicensed works, to make an assessment as to whether the fair use limitation in copyright law might justify the use without prior permission or payment of a royalty. If the use exceeds what would be considered fair, the instructor should either use alternate material or obtain permission.
- To obtain permission from the copyright holder if the use is not permitted under a license or if the use exceeds what would be considered fair (payment might be required, with costs covered by department or instructor).
- To obtain permission using the Copyright Clearance Center Get Permission Service which secures copyright permissions for a fee (costs covered by department or instructor).
- To order a digital coursepack from Rutgers University Bookstore that will obtain permissions using the Copyright Clearance Center (costs passed on to students in the cost of the coursepack).
Licensed and unlicensed works
In selecting copyrighted material for use in courses, the following considerations should guide instructors’ decisions. A primary consideration is whether the material being used is subject to a license or is not subject to a license. Special rules for streaming audiovisual works are discussed below.
Is the work being used is subject to a license?
Most material found online is licensed and is governed by the terms and conditions of the license, a form of contract. See Contract and Licensing Basics. Because contracts and licenses are enforceable over the provisions of copyright law, the terms and conditions of the license apply. It is your responsibility as an instructor to read the terms and conditions in databases and on websites before making use of works, and to comply with them.
If the terms and conditions incorporate the fair use limitation by reference, the instructor should assess the fairness of the use as is done with unlicensed works, as explained below.
I would like to download some articles from current newspapers into eCollege for my students to read. I’m getting some of them from Rutgers University Libraries databases and others directly from the newspaper websites. Is this OK?
You have to read the license, viewable as terms and conditions, on each of these databases or websites to understand what it permits. If the database or website license does not allow this type of use, the solution is simple. Give your students the URL for the site and a citation for each article and have them access the website directly to read the articles.
Print material and other analog material generally is not under a license, and thus is subject directly to copyright law. Consider the legal and access options above for unlicensed material. In assessing whether fair use may apply to use of works, the following considerations will be helpful.
I would like to makes some scans of print newspaper articles and put them into eCollege for my students to read. Is this OK?
It depends. You need to make a fair use assessment.
Do you mean that the rules are different if I’m using articles from an online source as opposed to a print source?
Yes. When using an online source, you need to comply with the online license, viewable as the terms and conditions on the site. When using a print source, copyright law applies directly and you need to make a fair use assessment.
The fair use limitation
Fair use is a limitation in U.S. law that may justify uses of copyrighted works without prior permission or payment of a royalty. Making fair use assessments is the responsibility of the instructor.
The following considerations are important when assessing fair use for all teaching. Please see separate guidelines for streaming audiovisual works at Rutgers.
- Limit the amount used. Reasonable, limited, educational, scholarly uses of materials weigh toward fair use. Using an amount appropriate to the purpose and tied to critical analysis will weigh toward fair use. Using excessive amounts of a work beyond what is needed for the educational purpose weighs against fair use. It is sometimes difficult to justify fair use for large portions of works or for entire works. For example, Rutgers University Libraries does not hold that fair use applies to entire books or to entire journal issues in E-reserve. For graphical works (photographs, illustrations, images, cartoons) typically the whole work is needed. Using low resolution copies and thumbnails is a way of limiting the amount used.
It’s helpful to view fair use as a sliding scale: the more of a work one uses, the less fair the use may be. The less of a work one uses, the more fair the use may be. Limiting use of works to the specific needs of the teaching purpose makes always the fair use assessment stronger.
At one extreme, use of short excerpts from published works for teaching is accepted as a fair use. At the other extreme, scanning and distributing to students an entire textbook or other book that is in print and available for purchase, or available to them through libraries, is not regarded as a fair use and instructors should refrain from this type of copying. Most instructional activity falls somewhere between these two extremes.
- Provide access only to students in class, and consider the size of the class. A basic rule in making course materials available to students is to limit access to the enrolled students. There is no need to place course materials on the open Internet. Please do not post course materials on open websites unless you are the copyright holder. The size of the class may be an additional factor; there is a difference between using materials for a class of five and a class of five hundred. For example, use of copyrighted works for massive open online courses (MOOCs) that enroll large numbers of students generally requires permission or a license.
- Provide access only for the term of the class. Please ensure that course materials are disabled at the end of a class term. Repeated, extended use of the same works from semester to semester may alter the fair use assessment and require reconsideration as an activity justified under fair use. It is important to consider frequency and extent of use. This factor is an important consideration for Pearson managed courses that extend beyond a single semester and involve re-use of the same course material over time. Use of the same photocopied or scanned material in multiple courses or for long-term use requires a more careful assessment and may require permission.
- Discourage further distribution. Please discourage students from further distribution of course materials beyond the class. This may be accomplished by informing students about copyright law and inserting this notice on the class syllabus and on copies of the course materials: “This material is subject to the copyright law of the United States (Title 17 U.S. Code) and is for the use of students in [Course 101] only. Further reproduction or distribution is prohibited.”
- Avoid using material in a way that substitutes for textbooks or “consumable” workbooks, or for works marketed for online education. When use of copyrighted works directly conflicts with an educational market, the use is not considered fair. Please avoid using material to substitute for textbooks or consumable workbooks, and avoid using materials that were produced or marketed as educational products primarily for digital instructional activities.
- Assess the availability through purchase or licensing. When copyrighted materials are in still in print and being marketed, and/or when a licensing mechanism is available for use of the copyrighted work, the fair use argument is weakened because the use conflicts with a market for the work. Consider whether the work is available for purchase, and whether the work is available through a license. The date of publication and the publisher may also be considered. Recent works typically raise more questions than older works.
- Always provide attribution. When reproducing materials for use in the learning management system or through E-reserves, please provide a full citation on the copy.
- Use works lawfully. Make a good faith effort to ensure that works used in teaching are lawfully made copies.
Is it a fair use to quote an excerpt from a copyrighted work?
Quoting responsibly, by using short excerpts of works for teaching, as well as for academic research and publication, is generally accepted as a fair use in the U.S. The nature of the work and the length of the quote are among the factors to be considered in assessing fairness. There are sometimes more considerations for unpublished works, such as the right of author's consent to first publication, privacy, and confidentiality issues. Attribution must always be provided.
Textbooks are expensive and students don’t have the money to buy them. May I scan the textbook for my class and make copies available to my students?
No. Scanning and distributing to students an entire textbook or other book that is in print and available for purchase is not regarded as a fair use. Instructors should refrain from this type of copying and distribution by any means. They should also not scan individual chapters that in the aggregate add up to the whole book or most of it. One helpful solution is to place one or more lawfully purchased copies of the book on reserve in the library for students.
What to do when the license does not permit the use or the use exceeds a fair use assessment
If the use is not permitted under a license or if it the use exceeds what would be considered fair, the instructor should consider either using alternate material or obtaining permission for the use.
Rutgers guidelines on streaming audiovisual works are based on a legal interpretation of current law. Rutgers guidelines support streaming films and video in learning management systems for university courses when the use is integral to the course and directly related to instructional goals in the following circumstances:
- if the work is in the public domain;
- if the copyright holder has given permission;
- if the instructor is the copyright holder;
- if there is a public performance or a streaming license associated with the work;
- if the online license terms and conditions allow for the use and the material has been lawfully made and lawfully made publicly available; or
- for use of short excerpts that could reasonably fall within fair use.
Rutgers does not authorize streaming entire audiovisual works in the learning management system, on e-reserves, on websites, or elsewhere without a public performance or streaming license. Costs for such licenses, as with other types of permissions, would need to be covered by departments or instructors. Exceptions may be appropriate in situations where public performance or streaming licenses are found not to be available after a reasonable effort to identify a licensor, and for which there is no other form of access and no acceptable alternative for viewing other than temporary streaming through a Rutgers server.
Instructors must also:
- Limit access to students in the class
- Limit access to the term of the class and then disable access
- Provide a written notice on the file or on the syllabus prohibiting further distribution, for example: “This material is subject to the copyright law of the United States (Title 17 U.S. Code) and is for use of students in English 101 only. Further reproduction or distribution is prohibited.”
- Inform students that copyright law applies to the work.
Other options available to instructors:
- Students use personal online streaming services. Instructors may suggest that students view films on services such as Amazon Prime, Netflix, and Google Play as one-time views or through personal subscriptions. This is an inexpensive option, considered to be the equivalent of purchasing an inexpensive textbook.
- Rutgers University Libraries offers services through Swank Digital Campus for online streaming access of certain feature films, as of September 2014.
- Rutgers University Libraries offers services for creating compilations of short audio and film clips for use in teaching through its Streaming Media Clips for Reserve Service.
- Link to lawful content on YouTube. YouTube is a source both of content that has been lawfully made and made publicly available and of unlawful content. When using YouTube for courses, instructors should make a good faith, common sense judgment to determine that content has been lawfully made and posted. In addition, because the YouTube online license restricts uses to individuals for “information and personal use,” it is recommended that instructors link to YouTube rather than copying videos to the learning management system.
Online use of student works
Copyright law and federal privacy law reinforce student rights in their coursework and theses. Students may not be mandated to place coursework (papers, assignments, projects) or theses on the public Internet or open access platforms.
Copyright law applies to student works. Students hold the copyrights in all the work they create for classes. The decision to publicly display or distribute coursework or theses is the student’s to make. Decisions on public availability of a student’s work are voluntary on the part of the student.
In addition, the Federal Family Educational and Privacy Rights Act of 1974 (FERPA) exists to protect the privacy of student educational records. Educational records include coursework, papers, assignments, projects, and theses. Both a license and a waiver of the FERPA confidentiality provisions should be obtained, and voluntarily signed by the student, before any student educational records- including course assignments- are made available on any open access platform.
Instructors and students need to be aware of these issues.