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Rights Issues for Rapidly Shifting Courses Online

By Micah Zeller

Please see the Message from Chancellor Martin (March 11, 2020) regarding Danforth and Medical Campus classes shifting to online instruction.

(NOTE: This document is evolving and subject to change. It is not legal advice but an advisory resource that provides basic guidelines. Faculty, students, and staff are responsible for making copyright and fair use decisions. The university will support instructors making informed, well-reasoned decisions based on good-faith application of the law. Last updated March 13, 2020.)

There are pedagogical and technical issues that make the shift from in-person to remote teaching challenging. But copyright ought not intimidate you. Many rights issues are similar in both teaching contexts. If it was okay to do in class, it is often okay to do online—as long as you ensure that the online access is limited to the same enrolled students. These guidelines apply to converting residential instruction to remote teaching.

Recording video of yourself, live-casting lectures, etc.: The key instructional tools of remote teaching often resemble what you use in a regular class—e.g., sharing a whiteboard (or substitute), slides, images and documents, course readings, and perhaps audio and video clips. You may also be recording your class for asynchronous access and making the recording available to students for later viewing.

Slide images: If it was legal to show slide images in a face-to-face class, it is likely legal to show them to students via live video conferencing or in recorded videos. This may be a surprise if you assumed that there is a big difference between class lecture slides and online slides. The issue is usually less about being offline versus online, but rather, whether you are teaching to a restricted versus an unrestricted audience. As long as your new course video is being shared through restricted course websites that can only be accessed by the same enrolled students (e.g., Canvas course site), the legal issues are fairly similar.

Many instructors routinely post a copy of their slides as a file for students to access after in-person course meetings. This also likely does not present any new issues after online course meetings, as long as the files are restricted in access.

In-lecture use of audio or video: For using audio or video in class instruction, the differences between online and in-person teaching can be a bit more complex. Playing audio or video off of physical media (e.g. DVD, CD, etc.) during an in-person class session is legal for university teaching under a provision of copyright law (§110(1), the “face-to-face teaching” exception). However, that exemption does not cover playing the same media online.

If you limit audio and video use for your course to very brief clips, you may be able to include those in lecture recordings or live-casts under the copyright provision called fair use. For media use longer than brief clips, you may need to have students independently access the content outside of your lecture videos. The Fair Use Analysis Worksheet (PDF) may provide a framework for thinking through the factors.

Some further options are outlined below.

Where to Post Your Videos

If you decide to post new course videos, the most important consideration is that you control the level of access. There may be some practical differences in outcomes depending on which platform you use to post new course videos, whether Canvas, Kaltura, Wowza, Ares, Box, or other third-party platforms. You can post video to YouTube and the same basic legal provisions apply, but it’s more likely that videos posted on YouTube may encounter some automated copyright enforcement, such as a takedown notice, or disabling of included audio or video content. Here are resources for using video media:

Media Resources

Course readings and other resources: The Libraries’ Course Reserves team on the Danforth campus (reserve@wumail.wustl.edu) and Becker Medical Library (askbecker@wustl.edu) can help students and faculty with accessing materials online—e.g., links to Libraries subscription resources, finding ebooks where available, locating materials in the public domain, and more.

If you want to share additional materials with students as you revise instructional plans, or if you want students to share more resources with each other in an online discussion board, keep in mind some simple guidelines:

It’s Always Easiest to Link!

Linking to articles and online content available through the University Libraries’ subscription databases and e-resource is an ideal option:  Much of the Libraries’ subscription content will have DOIs, PURLs, or other “permalink” options, all of which should work even for off-campus users. For help linking to any particular subscription content, see the following guidelines:

Linking to publicly available online content such as news websites and existing online videos is also an option, and publicly available content usually does not present copyright issues. It’s recommended that you still review the resource, however, to make sure you are not linking to existing content that looks obviously infringing itself:  For example, Joe Schmoe’s YouTube video of the entire “Black Panther” movie is probably not a good thing to link to. But Sara Someone’s 2-minute video of herself and her best friend talking about a few of the pivotal scenes in the film may be fair use.

Sharing Copies and Fair Use

Making copies of new materials for students (by downloading and uploading files, or by scanning from physical documents) can present some copyright issues, but they’re not different from those involved in deciding whether to share something online with your students when you are meeting in-person. You cannot make copies of entire works, but copying limited portions of works to share with students can fall within fair use. The Fair Use Analysis Worksheet (PDF) can provide a framework for your decision. At times, especially in unusual circumstances, or with works that aren’t otherwise commercially available, it may be within fair use to make lengthier copies.

We recommend adding appropriate citation to the material on the first page of the digital copy, along with the following notice of copyright: Materials provided for non-profit, educational use; further reproduction and distribution in any way inconsistent with copyright law (Title 17, U.S. Code) and its “fair use” provisions may result in liability for copyright infringement.

Washington University policy affirms that it is an instructor’s right and responsibility to make their own decisions about fair use and how to share materials with students. Libraries staff members can help you understand the relevant issues. For assistance, please contact WULIB_CopyrightHelp@wumail.wustl.edu on the Danforth campus and publicationsupport@wustl.edu on the Medical Campus.

Where an instructor is unsure about relying on fair use, a subject librarian may be able to suggest alternative content that is already available through library subscriptions, open educational resources (OER), or public domain content available online.

Multimedia Viewing/Listening

Showing an entire movie or musical work online will be an issue compared to playing it in class, but there may be options for your students to access it independently online. The University Libraries subscribe to licensed streaming video content that instructors can link to for their courses and also have subscriptions to a significant set of streaming audio options for WashU users. When there are no other options, fair use may extend to streaming an entire work. But again, that will generally only be true with outlying circumstances.

Ownership of Online Course Materials

Under the Washington University Intellectual Property Policy, faculty members and faculty-like employees own the copyright in their academic works. Some units and departments have different policies around ownership of course video at the unit level. Some units may also have some shared expectations of shared -access- to course video for continuity of educational experiences, without those expectations affecting the ownership of the materials.

University policies also affirm that students own the copyright in their own coursework. Instructors can require them to submit it in particular formats, but the students continue to own their works unless a separate agreement is signed by the student.

More Questions? Need Help?

March 2020. Adapted from “Rapidly shifting your course from in-person to online” by Nancy Sims, University of Minnesota Libraries, and licensed under a Creative Commons Attribution-NonCommercial License.