February 24, 2021Client Alert

Understanding the Boundaries of Using Copyrighted Learning Materials in Distance Learning

With online learning being utilized more and more by educators as institutions are learning to manage the COVID-19 crisis, educators are often using materials purchased and licensed for in person instruction in an online instruction capacity.

If the license rights provided to an educational institution for such instructional material does not explicitly provide for distribution or presentation online, the educator and their respective educational institution may still be able to utilize such materials in an online capacity if such use complies with the “fair use” doctrines under the copyright law, or the more educator friendly, Technology, Education and Copyright Harmonization Act of 2002 (TEACH Act). While the TEACH Act has been in existence for over a decade, it has been getting a “work out” during the COVID crisis. While the TEACH Act does provide a wider permission for educators to use properly licensed educational materials intended for in-person in an online setting, there are parameters to this that many institutions may not be aware of or are complying with. Specifically, to use a copyrighted work as part of online educations exemptions under the TEACH Act:

  • The copyrighted work must have been lawfully acquired by the education institution;
  • The educational institution must limit the amount of the copyrighted work accessed to what is necessary for the lesson;
  • The educational institution must limit access to the copyrighted work to students currently enrolled in the class;
  • The educational institution must limit access to the copyrighted work only for the time needed to complete the class session or course;
  • The educational institution must inform instructors, students, and staff of copyright laws and policies;
  • The educational institution must prevent further copying or redistribution of the copyrighted work; and
  • The educational institution must not interfere with copy protection mechanisms associated with the copyrighted work.

If the license rights explicitly provided by the copyright holder of the education materials used by an institution are not explicitly licensed for online use, the institution may need to utilize the exceptions under the “fair use” and TEACH Act and comply with all of the requirements therein. If your institution has any questions on these requirements they can contact Jeff Peterson who handles copyright issues for educational institutions. 

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