With the fall semester fast approaching, faculty are intensively preparing for the 2020-2021 academic year, in the face of continually changing information and circumstances. A number of our higher education clients have had questions about copyright issues relating to the transition of traditional in-person classes to online or hybrid formats. We have also been reviewing software agreements for various services that allow institutions to shift more of their offerings online. Here we discuss four common issues we have encountered. Although the answers are seldom black-and-white, we thought it would be useful to share some of the questions and possible approaches to them:

1) When can copyrighted third-party materials (including text, photographs, video, and music) be used without permission or licenses in online teaching activities? Can college libraries scan and provide digital access to print reserve materials?

This generally involves a case-by-case analysis involving “fair use” principles as well as the TEACH Act (the section of the Copyright Act addressing the use of third-party materials in distance learning settings).

At the start of the pandemic, some librarians and copyright experts took the position that exigent circumstances created a fair use justification for treating the “online classroom” as if it were a physical classroom, without regard for the limits of the TEACH Act. This rationale may have had particular force in the spring, as classes had to move from the physical setting to online almost overnight. Such a fair use argument may still be made for the use of some copyrighted materials in fall term classes, but the fair use calculus may be different when institutions and instructors have more time to prepare for online or hybrid classes.

Similarly, during the spring when college libraries became off-limits, some college and university librarians responded by scanning print reserve materials and making them accessible to students and instructors online. Questions are now arising as to whether such scanning would continue to be justified this fall. As with other fair use issues, these questions may need to be approached on a case-by-case basis. One key factor in the fair use calculus may be whether there is an established and convenient market for obtaining reasonably priced licenses for such materials. If there is an established and non-cumbersome way to obtain such licenses, the fair use rationale may be less persuasive.

2) What are the factors allowing use of third-party materials in online teaching activities under the TEACH Act?

The TEACH Act contains various, often quite specific requirements, all of which need to be considered in the context of online or hybrid courses. Note that the copyright exemption for in person “face to face” teaching situations is not identical to the exemption for distance learning; the latter is narrower. Two TEACH factors of particular importance are:

• Are technological measures, such as the use of passwords, being employed to ensure that the materials are accessible only to enrolled class members?
• For certain sorts of works, is the online use restricted to “reasonable and limited” portions of the third-party materials? The interpretation of “reasonable and limited” may need to be considered on a case-by-case basis.

Note that the TEACH Act does not override fair use. There may be instances in which the TEACH Act does not seem to support an exemption, but in which a strong fair use argument can still be made.

3) When faculty members create new materials — or adapt their existing materials — for online or hybrid classes, who owns the rights in these materials: the college/university, the faculty members, or some combination?

A key question is how existing college intellectual property policies apply in this new context. Historically, college faculty members were presumed to own copyright in the course content they developed, as part of the larger academic tradition respecting individual scholars’ ownership rights in their own scholarship. However, many IP policies shift ownership of copyrighted materials from the faculty member to the institution in the event it is providing “extraordinary” support for activities like the development of online programs. In these extraordinary times, however, it can be difficult to determine how such provisions should be applied.

Colleges and faculty members would be wise to discuss these issues in advance when developing new content or moving their existing materials to an online or hybrid format. It is often a good idea — and sometimes required by the institution’s Intellectual Property policy — for the administration to enter into written agreements with a faculty member clarifying the ownership of newly developed materials, especially if they are developed with the help of substantial or extraordinary institutional resources.

Additionally, colleges often partner with companies that help prepare and support online educational offerings. These contracts can include significant obligations and commitments for the faculty members involved in terms of their time, availability, and willingness/ability to develop content for a given platform. Where the faculty members themselves are not usually parties to these contracts, a college’s agreements with its faculty members need to align with the terms of the software agreements.

4) Software companies and vendors provide invaluable services in the move to online learning, but proceed with caution.

Both startup and established online education software companies are scrambling to scale up for the sudden increase in demand. They offer a broad range of services, including:

• Online exam-proctoring services
• Virtual campus and museum tours
• Event-planning and campus communication applications
• Online classes and even full online degree programs
• Course management, course design and assessment
• Enhanced cloud hosting services

The licenses or other agreements proposed by such companies are sometimes new and untested, and should be carefully reviewed with regard to issues of privacy and data protection, ownership of intellectual property, student and faculty rights, protection of the college brand, and general consistency with the college’s values and interests.

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Brenda Ulrich and Zick Rubin are publishing and copyright lawyers at Archstone Law Group, P.C. They can be reached at bulrich@archstonelaw.com and zrubin@archstonelaw.com (https://www.archstonelaw.com)