'Can I post this on Canvas?' and Other FAQs about Copyright and Teaching Online

1. ‘Can I post this on Canvas?’ and Other FAQs about Copyright and Teaching Online Scholarly Communication Services Kristy Padron, MLIS SCS Coordinator and Associate University Librarian kpadron@fau.edu https://library.fau.edu/scholarly-communication September 2020

2. • Introduce the types of copyright questions that may be asked regarding online teaching. • Define copyright and fair use. • Outline a fair use analysis as a way to consider using the work of others. • Identify some better practices for using work online for teaching purposes. Workshop Objectives

3.  The FAU Libraries and its faculty, staff, and administration (including I, Kristy Padron) are not attorneys and cannot interpret the law.  This information is provided for educational purposes only and does not substitute for advice from legal counsel. Disclaimers Padron, K. (2015). Owlsley & me [Image].

4.  The pandemic has rapidly changed the way we teach with the transition to hybrid or online settings.  Many instructors/ educators want to or need to make materials available online to students.  These are copyright and licensing questions!  We are now challenged by increased needs for using copyrighted works in online settings: • The need for materials to teach effectively and so students can learn. • The question of how to balance our instructional needs while respecting copyright. Questions: Teaching Online

5. Questions: Teaching Online Can I upload a PDF to my Canvas page? I can legally scan a chapter of a book and give to my students because it’s for teaching purposes, right? I found this PDF of a book on the internet and it’s perfect for my course. Can I use it as an OER? ?! I heard that if I only use 10% of a book, it’s legal. Is that accurate?

6. Copyright: The Basics Copyright defined (US Copyright Office, 2020):  Exclusive rights that give creators of a work permissions to: • Distribute • Sell • Publicly perform or display • Make copies • Create derivatives • Authorize its rights to others (limited or exclusive)  Available for certain types of work: • Literary works: anything textual; computer programs • Musical works • Dramatic works • Pantomines and choreographic works • Pictorial, graphic, and cultural works • Motion picture and other audio-visual works • Sound recordings • Architectural works

7. Copyright: The Basics Copyright defined:  Automatically granted once an idea is in a fixed form (though registration is typically recommended for legal purposes).  Held by the copyright holder; authors can transfer their copyright.  Copyright Law of the United States provides legal definitions, parameters, and exceptions for copyright.

8. Copyright: Fair Use & Teaching  Fair Use: • An exception in copyright law that allows copyrighted materials to be reused or copied without the permission of a copyright owner. • Fair use applies for limited and transformative purposes such as commentary and critiques, news, or parody. Educators rely heavily on fair use (17 USC § 107) in the U.S. copyright law to reuse copyrighted materials for teaching, research, scholarly or creative activities.

9. Copyright: Fair Use & Teaching  Fair Use: • Fair use can be used in non-profit teaching / instruction settings. • Fair use allows some copying, sharing, clipping, and repurposing some types of work depending on the details and purposes of its use, dependent on a fair use analysis. • Each case of fair use is different (details: setting, amount of work used, type of document or material, etc.), so a fair use analysis is important for every time a work is reused.

10. Copyright: Fair Use & Teaching A fair use analysis will help you consider whether or not your intended use of a copyrighted book, article, video, or other work for instructional purposes (whether online or in-person) adheres to copyright!

11. Copyright: Fair Use & Teaching Here’s some assurances about fair use:  Society needs some limit to copyright; without these, ideas and their expression are limited which curtails free speech, cultural expression, and learning.  Fair use is an educator’s friend and we can use it based on good faith (a.k.a. our best, informed judgment)! Don’t be afraid to lean on it (Smith, Macklin & Gilliland, 2012).

12. Copyright: Fair Use & Teaching  Purpose of use and a work’s character  Amount and substantiality of a work that will be used.  Nature or type of work  Effect of reuse on a work’s demand or marketability Fair use is determined by objectively weighing and balancing 4 factors: PPurpose AAmount NNature EEffect Fair Use

13. A fair use analysis objectively reviews these 4 factors for a given situation. We will be introduced to the 4 factors, and identify them for a given scenario. Our fair use checklist is available @ https://bit.ly/scs- fair-use-checklist Copyright: Fair Use & Teaching

14. Copyright: Fair Use & Teaching  Purpose of Use and A Work's Character • What is the reason for reusing a work? Teaching, scholarship, or commentary/ critique? Will it be used online or face-to-face? • How long will the work be reused? Semester-long? Every semester? One-time? • Does reusing or copying a work add a new meaning, character, message to its function? Will a work made for entertainment purposes continue being used that way, or used differently? • Under what conditions will the work be made available? Only in Canvas? E-mailed? Posted on a web page? PPurpose AAmount NNature EEffect Fair Use

15. Copyright: Fair Use & Teaching  Amount and Substantiality of a Work That Will Be Used • How much of an original work is being used in proportion to its entirety? A chapter? A few pages? The whole book or article? • Is the used portion the most significant part of a work? Is it the part that made people interested in the work? PPurpose AAmount NNature EEffect Fair Use

16. Copyright: Fair Use & Teaching  Nature or Type of Work • Is the copyrighted work based on fact, or is it a creative work? Poetry or literature? Article with original research? Image? • Is the work published or unpublished? • Is the purpose of the copyrighted work to inform or entertain? PPurpose AAmount NNature EEffect Fair Use

17. Copyright: Fair Use & Teaching  Effect of Reuse on a Work’s Demand or Marketability • Does copying or reusing the work make it less valuable or affect the demand for it? Will fewer people buy the work or want it because I reused or distributed it? PPurpose AAmount NNature EEffect Fair Use

18. Copyright: Fair Use & Teaching Considering the 4 Factors  Fair use is not determined numerically.  It is a decision one makes by weighing and balancing the 4 factors. • One can choose to apply fair use liberally or conservatively depending on their risk tolerance and values.  Otherwise, the courts make the ultimate call in what falls under fair use.

19. How do I apply fair use and copyright to teaching online? Can I upload a PDF to my Canvas page? I can legally scan a chapter of a book and give to my students because it’s for teaching purposes, right? I found this PDF of a book on the internet and it’s perfect for my course. Can I use it as an OER? ?! I heard that if I only use 10% of a book, it’s legal. Is that accurate?

20. How do I apply fair use and copyright to teaching online? Do a fair use analysis and check the balance of its PANE factors.  Purpose: + Will be on Canvas and removed at end of class + Used for commentary, critique, or discussion - Done so the students don’t have to buy the book - Will be used every semester  Amount: + Just enough to reach instruction goal - An entire work  Nature: + It’s fact-based work + It’s published - It’s a creative work - It’s unpublished  Effect: + My use won’t negatively affect the demand for the work - Fewer people will buy the work Can I upload a PDF to my Canvas page?

21. How do I apply fair use and copyright to teaching online? Can I upload a PDF to my Canvas page? If you decide your use qualifies, congratulations! Recommendation: track your fair use analysis and keep a record of it (use our form for that!) If you decide fair use doesn’t apply in your case, consider these alternatives:  See if the FAU Libraries has a licensed, electronic copy of a work. • You can provide its URL to the work for your students.  Identify an alternative work that is comparable to what you wanted to use that is an open education resource (OER) or other work with Creative Commons license (e.g., CC-BY).  Ask for permission from the copyright holder.

22. How do I apply fair use and copyright to teaching online? I can legally scan a chapter of a book and give to my students because it’s for teaching purposes, right?  Fair use favors reusing work for educational purposes, but that purpose by itself is not enough.  The legality and origin of a copyrighted work also comes into question. • Legally obtained work (e.g., the book belongs to you) is favored in a fair use analysis. • Those with undetermined origins are not favored (e.g., a possibly pirated scan found on Google).  Making copies for one-time use in face-to-face settings tends to be favored, while it can be complicated in online settings.  An analysis of the 4 PANE factors will help you decide if it is balanced.

23. How do I apply fair use and copyright to teaching online?  Again, the legality and origin of a work also comes into question.  Check its verso (a page with its publishing details towards the beginning of a work) or a copyright statement to determine its copyright status and holder. • If it has a copyright, this PDF may be a pirated work.  Check for the origin of this PDF; some online collections of books have items in the public domain (e.g., Project Gutenburg, some titles in Hathi Trust).  If the work has a Creative Commons license, see what it allows you to do with reusing the work. I found this PDF of a book on the internet and it’s perfect for my course. Can I use it as an OER?

24. How do I apply fair use and copyright to teaching online?  The so-called 10% rule is outdated, though many communities of practice created percentages or portions as guidelines for best practices (but they aren’t law).  When you do look at the amount of a work used for your analysis, consider the following: • Using a small amount isn’t sufficient enough by itself; the significance of the part may favor against fair use (Harper & Row v. Nation Enterprises, 1985). • Use the amount you determine is essential for fulfilling your teaching and learning objectives. I heard that if I only use 10% of a book, it’s legal. Is that accurate?

25.  Use works that are licensed or acceptable for use in online settings. • Creative Commons licensed works, Public Domain works • Online library materials can generally be reused for instruction within an institution (its licenses allow student use*). o Embed links to library materials on Canvas rather than files*.  Check for a work’s copyright or Creative Commons licenses. Better Practices for Reusing Work for Online Teaching

26.  Do your fair use analysis of 4 PANE factors for copyrighted works.  Use legally obtained, legal versions of work. • Know its provenance or origin.  Model the practices you want your students to follow. Better Practices for Reusing Work for Online Teaching

27. Let’s Try a Fair Use Analysis! For an online class, Professor Ocean wants to upload a PDF of a book chapter to Canvas as required reading for her students. She says the chapter gives an excellent introduction to a concept her students need to learn and will later write about for an assignment. If we do a fair use analysis, can she apply fair use? Our fair use checklist is available @ https://bit.ly/scs-fair-use-checklist

31. • What weighs for or against fair use? • Once we weigh the 4 factors, should Professor O. post the PDF? • What are some possible alternatives? Let’s Try a Fair Use Analysis! For an online class, Professor Ocean wants to upload a PDF of a book chapter to Canvas as required reading for her students. She says the chapter gives an excellent introduction to a concept her students need to learn and will later write about for an assignment. If we do a fair use analysis, can she apply fair use? Our fair use checklist is available @ https://bit.ly/scs-fair-use-checklist

32.  Copyright LibGuide https://bit.ly/scs-copyright o Creative Commons o Fair Use: Analysis Chart o Request Permission – How To  Creative Commons LibGuide https://bit.ly/scs-cc  Open Education Resources (OER) LibGuide https://libguides.fau.edu/oer  Scholarly Communication Services Home https://bit.ly/scs-fau More Information

33. More Information Copyright Law: o Copyright Law of the United States (U.S. Copyright Office): https://www.copyright.gov/title17/ o U.S. Copyright Office: https://www.copyright.gov Provides circulars on applications of copyright law such as Fair Use, TEACH Act, international copyright, and more. Copyright for the Public: o Copyright & Fair Use: Overview (Stanford University Libraries): https://fairuse.stanford.edu/overview (Legally) Uses content by Richard Stim, NOLO legal publications, and other experts who write books for the public! Copyright Information Center (Cornell University Library): https:/copyright.cornell.edu See its pages on copyright and public domain (aka the Hirtle Chart), fair use checklist, and copyright law.

34. Works Cited Smith, K., Macklin, L.A., Gilliland, A. (2012). Copyright for educators and librarians [Online course]. Coursera. https://www.coursera.org. U.S. Copyright Office (2020). Copyright law of the United States [Web page]. https://www.copyright.gov/title17/ Unless indicated, the source of images are from Unsplash.com or Pixabay.com and are reused with CC0 (public domain) license (https://creativecommons.org/share-your-work/public-domain/cc0/). Cited images reused via evaluating fair use (https://www.copyright.gov/fairuse/more-info.html).

35. ‘Can I post this on Canvas?’ and Other FAQs about Copyright and Teaching Online Scholarly Communication Services Kristy Padron, MLIS SCS Coordinator and Associate University Librarian kpadron@fau.edu https://library.fau.edu/scholarly-communication September 2020