Answered By: Kayla Olson
Last Updated: Aug 26, 2024     Views: 35

Intellectual property, copyright, and fair use are complex, particularly when it comes to sharing course materials through online learning management systems like D2L. Even under Fair Use and the TEACH Act, which have opened doors for educators to be able to share portions of copyrighted works in the classroom and in distance learning, there are still restrictions. It is up to the individual instructor to use their best judgement when uploading copies of copyrighted materials to D2L.

That said, universities, libraries, and information technology professionals are also tasked with contributing their own knowledge and to be of assistance. So when thinking about adding materials to your course:

Short Answer:

  1. Utilize library resources by linking rather than downloading and re-uploading:
  • Use “permalinks” to articles, e-books, and videos through the library catalog for materials that the library pays for through our database and journal subscriptions. Even though the library pays for access to resources, that does not mean that all licensing agreements permit users to share or disseminate copies. Rather than worry about it, link to the materials in the catalog.
  • Submit e-reserve requests for scans of book chapters and articles from our print collections. If your request complies with our e-reserves policy and Fair Use, you will receive a link to include in your D2L course.

Not only do these options help ensure that your course resources are sourced through lawful licenses, it also helps us measure the impact of access to these materials in your courses! The more we can measure that impact, the more likely we can continue providing access to books, articles, and more.  

  1. Materials you receive through Interlibrary Loan/Resource Sharing are still subject to copyright. While libraries are allowed to share limited copies with you on account of Section 108 of the US Copyright Code, further reproduction or sharing of said copies by the patron needs to be evaluated through Copyright Law and Fair Use. Note that after a certain number of copies from individual journals, the library needs to pay additional copyright fees, so please do not have students submit ILL requests for the same article as part of an assignment. Contact your liaison librarian about acquiring a copy of something we do not own.
  2. If you choose to upload copies of copyrighted works to D2L yourself, you will need to review guidelines under Copyright Law, Fair Use, and the TEACH Act. Keep reading for some resources that can help you do that. For an extremely quick introduction to Copyright Law for instructors, see this video by the Copyright Clearance Center (CCC). When in doubt, attain permission from the copyright holder.

Long Answer:

When uploading course materials to D2L, instructors should consider:

  1. Whether the work has a copyright owner, is open access, or has a creative commons license that allows reproduction and dissemination
  2. Whether the use of a copyrighted work complies with “Fair Use”
  3. Whether the use of a copyrighted work is protected under additional exceptions provided through the TEACH Act
  4. Whether the transmission or dissemination of the copyrighted work is in line with additional copyright & licensing agreements

 

1. Whether the work has a copyright owner, is open access, or has a creative commons license that allows reproduction and dissemination

Not all works are subject to copyright protections and thus may be copied and used without permission from a copyright holder. Some examples that do not fall under copyright include:

  • Works in the public domain. For example:  
  • Materials that are not eligible for copyright protection
    • This includes non-copyrightable generative AI works. See the Minnesota State System Office System Procedure 3.27.1 Copyright Clearance for a definition of non-copyrightable generative AI works.
    • Links to external websites. The text of a link itself cannot be copyrighted and can thus be shared at will. The content contained in the webpages can be subject to copyright, however, so just because a link exists for online content does not mean that one can obtain and disseminate that content at will. See the next section on Fair Use.

To review this information, you can also see the “Eligibility” section of this page on Copyright through Academic Affairs.

 

Creative Commons Licenses:

A Creative Commons license may save you the trouble of determining Fair Use if it openly gives you permission to share the work. If it does not provide permission to share the work, you will need to perform a Fair Use analysis to determine whether you can share it with your students. CC licenses do not restrict a work from being eligible for Fair Use!

See the library’s Copyright, Creative Commons, and Public Domain guide for more details on CC. 

 

2. Whether the use of a copyrighted work complies with “Fair Use”

Per the Minnesota State System Office’s FAQ about Copyright,

The "fair use" exception to copyright law allows non-owners of copyrighted work to copy and use another's work for educational, research or non-profit purposes in limited instances without the permission of the copyright owner.

If you do choose to evaluate your use of a work under Fair Use in order to upload a copy of a work to D2L yourself, below are resources that define the crucial “four factors” of Fair Use and/or provide check-lists:

It is important to consider that arguments for Fair Use become weaker when portions of copyrighted works are accumulated or when entire copies of works are used. Accumulation of parts of copied copyrighted works (e.g. book chapters) or copies of full individual works (e.g. journal articles) can begin to appear like a substitute for subscription or purchase thus weakening an argument for Fair Use.

Remember back in the day when we all used print coursepacks? Copyright mattered then and still does in the age of learning management systems!

 

3. Whether the use of a copyrighted work is protected under additional exceptions provided through the TEACH Act, which applies specifically to distance education

The TEACH Act passed in 2002 expands the ability of educators to perform and display copyrighted works in distance education. Though this allows for an experience closer to that of in-person instruction, there are still restrictions.

The TEACH Act covers the performance or display of certain copyrighted works in a distance learning setting, not the creation of copies of those works. These performances and displays must be part of "systematic mediated instructional activities.” This means that the TEACH Act covers activities online that would be typically done in a physical classroom, during class time, with an instructor present. It thus does not offer protections for materials assigned to students to be used outside of class.

Pay special attention to the fact that the transmitted material has to be a lawfully made copy and lawfully acquired. When possible, link to the original source of a piece of media rather than making and uploading a copy.

Note that the TEACH Act does not relieve one of the responsibilities to gain copyright permissions if the amount of an article or book used exceeds Fair Use. For example, showing an excerpt of an article (e.g. a graph, figure, or section) over Zoom may be appropriate in some cases, but showing the whole article may not be.  

For more in-depth information about the TEACH Act:

 

4. Whether the transmission or dissemination of the copyrighted work is in line with additional licensing agreements

In short, this means that if something is behind a paywall, it means that it may not be advisable to share and distribute copies of the materials found behind that paywall, even if a library, department, or organization pays for a subscription to a service. When in doubt, link to where students can access materials with their StarID and login!

 

Does this all sound like a pain? Save yourself time by:

  • Using permanent links (“permalinks”) that guide students to library database resources. Please use these “permalinks” to articles, e-books, and videos through the library catalog, rather than downloading materials and reuploading them to D2L. Even though the library pays for access to resources, that does not mean that all licensing agreements permit users to share or disseminate copies. Rather than worry about it, link to the materials in the catalog instead.
  • Use the library’s e-reserves system to request a scan of something from the library’s print collections. You will then receive a link to give your students in D2L.

Libraries must also follow copyright law, so we will review whether the work you wish to have available to students can be shared under Fair Use and our e-reserves policy. In the event that what you wish to share is in excess of Fair Use, additional permissions from the copyright holder will be needed.

Be mindful that if articles are used in classes semester after semester, your use may no longer apply under Fair Use. Thus, further permissions may need to be acquired from the copyright holder.

Free Tips:  

  1. Include copyright notices alongside your materials and acknowledge the source of the material. This is not a substitution for acquiring permissions!
  2. Include an informative statement in your syllabus or D2L course requesting that students do not disseminate copies beyond their own individual use for class
  3. If you have published your own research, review the status of your agreement with your publisher! If you no longer own the copyright to your work, you may need to acquire permission from your publisher. Whether this applies to pre-prints will depend on your individual agreements with your publisher.  
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