Copyright Considerations for the Harvard Community in Shifting Courses from In-Person to Online During the COVID-19 Crisis

Harvard Library staff are working hard to support instructors’ needs for resources and information as they rapidly shift to an online teaching environment. Information presented here is meant to proactively address questions concerning copyright and teaching online. 

Many pedagogical and technical issues make the shift from in-person to online teaching challenging, yet copyright is not an additional area of great concern. Many of the legal issues are the same in both contexts. 

• If it was okay to do in class, it is often okay to do in a fully online classroom environment, especially when your online access is limited to the same enrolled students.
• In particular, please always take accessibility needs into account. Copyright law does not preclude creating transcripts or captions for course videos and audio. In fact, it normally allows for it.

• The fair use provision in the Copyright Act (17 USC §107) allows for the copying and distribution of limited portions of copyrighted materials to support teaching, education, research, and other uses. The exigent circumstances in the COVID-19 crisis also add a strong rationale to support a fair use argument for course instruction or for online instruction.
• With the campus closed, we are focused on supporting our students and researchers by being thoughtful, providing good copyright information when asked, and limiting our activities to the specific, time-bound needs of instructors and students for the rest of the semester.
• For more information, and review of the four fair use factors, see the Office of the General Counsel’s page dedicated to fair use that you can utilize for greater understanding of the fair use statute.
• Also see the Public Statement of Library Copyright Specialists: Fair Use & Emergency Remote Teaching & Research for an analysis of fair use considerations in this COVID-19 crisis.

If it was legal to show slide images in class, it is likely legal to show them to students via live video conferencing or in recorded videos.

• As long as your course is being shared through authorized course websites, limited only to the same enrolled students on Canvas or other teaching platforms, the legal issues are fairly similar.
• Many instructors also post a copy of their slides as a file for students to access after in-person course meetings, which employs the same rationale for fair use.

Playing audio or video off of physical media during an in-person class session is 100% legal at Harvard University under a provision of copyright law called the the Classroom Use Exemption (17 U.S.C. §110(1)) which is about face-to-face teaching. However, that exemption doesn't cover playing the same media online. For this online teaching with media there are specialized options:

• We can still share audio and video online if we meet this detailed set of requirements under the TEACH Act (17 U.S.C. §110(2)). The TEACH ACT in the Copyright Act provides the special exemption for distance learning activities.
• Even if you cannot meet all of the TEACH Act requirements, you may still rely on fair use. Fair use could apply but you must weigh all the four factors of fair use and assess the risk.
• For technical help sharing video clips with students: 
  • Sharing video clips  in Zoom
  • Sharing video clips in Canvas

If you want to share readings with students, or if you want students to share more resources with each other in an online discussion board, keep in mind some simple guidelines.

 

Remember: it is best to always include a copyright notice from the original source and appropriate citations and attributions. 

 

1. It's always easiest to link!

 

Linking to content from Harvard Library, open access repositories, or publicly available content can be one of the easiest and legal methods for access to class materials.

• Course Reserves staff can do most of this for you through the Library Reserves Tool in Canvas.
• Much of our subscription content will have DOIs, PURLs, or other permalink options, all of which should work even for off-campus users. 
• For assistance with any of our subscription content, contact your subject librarian. 
• Vendor e-Books and Other Available Resources Harvard Library has outlined the vendors and publishers that are making some or all of their content freely available.
• As always, if there's something you think the library should own, please fill out a purchase request form.

 

2. Open Access

 

Open access (OA) refers to peer-reviewed scholarly research and literature that is free, online, and openly licensed for sharing. OA repositories preserve and provide access to this material, often in the form of articles, preprints, reprints, data, theses, dissertations, and other media. You might consider adding your work to our institutional repository DASH. 

Here are some other resources you can use to link:

• HOLLIS is the Harvard Library’s catalog which lets you search HOLLIS for books, articles, media and more. Hollis will denote when a work is available by displaying “OPEN ACCESS” in the material’s record.
• Google Scholar allows you to search scholarly articles that are available online. And, fortunately, many OA repositories (like Harvard’s DASH) are indexed by Google Scholar to reveal OA versions of articles available to the world.
• Directory of Open Access Books (DOAB) is a searchable database of peer reviewed monographs that have been made accessible by academic publishers in open access. 
• Open Access Directory (OAD) provides a list of open access disciplinary repositories including: ArXiv.org: e-Print archive for the fields of physics, mathematics, computer science, quantitative biology, quantitative finance, statistics, electrical engineering and systems science, and economics and CORE: OA Repository for the Humanities is a library-quality repository for sharing, discovering, retrieving, and archiving digital work.(hosted by MLA)

3. Publicly available content online 

YouTube, Vimeo, and other media content providers often let you link or embed into your own website, course, or teaching materials. While there is a lot of content available online, not all content is lawfully provided -- therefore be alert.  Some questions to ask when linking to content online:

• Is the content posted to the website of the author, creator or publisher of the content?
• Is the content being provided by an authentic educational, research, governmental or journalistic entity?
• Is the content complete and legible/accessible?

Linking to news websites, existing online videos, and other publicly available resources are normally not a copyright issue. However, it’s better not to link to existing content that looks like it’s obviously in violation of copyright.

• That shaky hand-held camera recording of the entire "Frozen 2" movie uploaded to YouTube by Joe Schmoe is probably not a good thing to link for the class.
• However, Prof. Someone's 2-minute video of herself and her colleague talking over a few of the pivotal scenes may be fair use and is not something you should worry about linking to.

4. Sharing copies locally

If you are making digital copies available for sharing on your class Canvas site, here are some additional considerations:

• Making copies of materials (by downloading and uploading files or by scanning yourself from physical documents) can present some copyright issues, but they're not different from deciding whether to share content when you are meeting in person.
• It’s best to be deliberate about copying entire texts. You may have seen recommendations in the past to stay under 10% of a full text. If you need the entire text for the purposes of the lesson, fair use could apply during this time, but you must weigh the four factors of fair use and assess the risk. The fair use analysis for amount, for example, is to use as much as necessary to serve your purpose. Do not use more than necessary to serve the pedagogical purpose - limit copies to what is absolutely necessary to complete the class.
• These copies should be limited to the course participants, so uploading them to the Library Reserves Tool and in Canvas fulfills this requirement.
• Where an instructor doesn't feel comfortable relying on fair use, a subject specialist librarian may be able to suggest alternative content.

Sharing an entire movie or musical work may be a bit more of an issue than playing it in class, but there may be options for your students to access it independently online. Try:

Kanopy Film & Media - an on-demand streaming video service for universities that offers over 26,000 titles on a broad range of subjects including anthropology, architecture, art, gender & race, environment & sustainability, health, law, media, politics and psychology/sociology.

Alexander Street Video - This site provides capabilities for searching across digital video databases by topic, creator, video type and language. Users can search transcripts, create playlists, and save clips for future viewing. Videos are available in seven subject collections: American history, dance, ethnic studies, ethnography, opera, theatre, and world history

• Find additional video platforms in our Streaming Video@Harvard guide.
• See a list of our major audio database subscriptions on the Music Research Guide.
• If for some reason you need a film or other media for your course but it is not part of our subscription, submit a purchase request and the library will try to access it.

Beyond Harvard Library's institutional streaming sources, sometimes standard commercial streaming options like Netflix, Amazon, Hulu, AppleTV, and Disney+ and others may be the easiest option.

For the most part, these providers do not offer institutional accounts, so the Library cannot cover the cost of their services. 

You can use Just Watch or ReelGood to search across popular streaming services to find out where to legally watch a video.

Contact the Harvard Library Copyright First Responders for further information or assistance about copyright and related topics.

For more general information related to library support services, please navigate to:

• Harvard Library Resources for Remote Teaching 
• Harvard Library Coronavirus Update for staffing updates and closures
• Harvard Library’s COVID-19 List of Publisher Offerings of e-Books and Other Available Resources
• Library Course Materials Digitization Form
• See Harvard’s Best Practices: Online Pedagogy for some additional guidance.
• Also, the University Disability Resources has a useful page on Student Accommodations

Adapted with modifications 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.