To help U.S. colleges and universities make ethical and legal decisions about copyright issues in this time of crisis, copyright specialists at U.S. and Canadian universities and organizations supporting higher education came together in a public statement dated March 13, 2020 to address potential concerns associated with this rapid shift to remote instruction.

In the summary below of said public statement, copyright specialists, the signatories on the public statement, will be referred to as “the specialists.” And the public statement titled “Public Statement of Library Copyright Specialists: Fair Use & Emergency Remote Teaching & Research” will be referred to as the “public statement.”

In the public statement, the specialists address the fair use exemption to copyright law and discuss the analysis used by courts to determine if a particular use is fair. It is the belief of the specialists that, based on earlier cases addressing public benefits, the fair use exception to copyright law is fully capable of providing the necessary flexibility in the wide variety of circumstances and rapidly changing situations that may arise during this public health crisis.

The specialists consider, in this time of crisis, that making materials available and accessible to students will almost always be a fair use.

While there are no fair use cases directly addressing copying to help minimize a public health crisis, a variety of cases relating to public benefits lead the specialists to believe that purposes relating to COVID-19 would weigh extremely heavily in favor of fair use, stating “The benefit to the public and providing remote coursework is obvious when it enables teaching to continue in the face of social distancing measures . . . or when access to physical library materials is impossible. The public benefit of these measures is without a doubt of at least equal importance as in previous cases.”

The specialists suggest additional ways to lessen potential risk, to include: being thoughtful in your analysis and limiting your activities to the specific needs of each case; restricting access to course materials to students, instructors and teaching assistants; providing content only for the period of time needed; using excerpts when possible; and using already-licensed online content, openly licensed and public domain alternatives, as well as working with content vendors on ways to expand access to support remote instruction and research.

Additionally, while fair use is appropriate to support the demands of this emergency, campuses must investigate and work on adapting solutions tailored for the longer-term.

Regarding video, the specialists briefly address the Digital Millennium Copyright Act (DMCA) in the public statement in relation to full length motion pictures and television episodes but don’t discuss video for educational purposes, per se, suggesting a fair use analysis in such cases.

For the full text of this public statement, more resources on copyright & emergency remote teaching and research, and a full list of signatories on this statement, visit https://tinyurl.com/tvnty3a