In response to the COVID-19 pandemic, schools, colleges, universities, libraries and other institutions have closed and migrated their in-person classes and other offerings to an online model. But with the rapid migration of physical content to online platforms, questions have arisen regarding the application of copyright law to books and other texts that now are being shared and distributed online. Do the exigent circumstances of the COVID-19 pandemic affect online sharing of content, especially in the educational context? And what analysis should an institution perform to determine whether its online model could create any copyright-related heartburn?
To answer these questions, we review of two common forms of protection for content distributors along with some hypothetical situations that may arise for content distributions operating during the COVID-19 pandemic
Protection for content distributors. The two most relevant forms of protection for content distributors are the Technology, Education and Copyright Harmonization (TEACH) Act (17 U.S.C. § 110(2)(A)-(D)) and the doctrine of fair use (17 U.S.C. § 107). Each of these is described below.
The TEACH Act provides protection for the performance and display of copyrighted materials for distance education by accredited institutions for certain purposes. The act has its limits, however, and does not extend clearly to “such works as textbooks, course packs, or other material in any media, copies or phonorecords of which are typically purchased or acquired by the students in higher education for their independent use and retention or are typically purchased or acquired for elementary and secondary students for their possession and independent use.”
The doctrine of fair use operates to protect the use of copyrighted works for limited purposes. The fair use analysis identifies four factors to consider: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.
Situations related to COVID-19 that arise with copyrighted works. With institutions moving quickly to online education, a number of unique situations can arise regarding copyrighted works. Some potential such situations are:
- Because of the rapid evacuation of university campuses, some students can not bring their course packets and/or textbooks home with them. But these students do not want to purchase new copies of their packets and/or books and instead seek electronic versions of them to be made available online.
- Instead of hosting in-person storybook readings, a library provides its community with an online “Storytime Hour.”
- A for-profit corporation digitizes hard-copy materials from its laboratory library and posts those electronic copies on a secure intranet site accessible only by employees.
Discussion. Although the TEACH Act may not necessarily cover the textbook-related first scenario above, fair use may still provide protection for distribution of limited portions of the textbooks and course packets. Teachers generally are permitted to make multiple copies of certain portions of copyrighted works for classroom use under the fair use doctrine, and if the textbooks and course packets already have been paid for by the students who seek electronic versions of the needed portions of the materials, then the copying may not affect the market for the materials.
The second scenario above also may be protected by fair use. Although the entirety of the book would be read, online reading of a storybook is not a commercial use and – assuming the library already has paid for the book – would not have much effect on the market for the book.
In addition, some publishers have recently granted special permission for online reading situations. As one example, Disney Publishing has given educators and librarians permission to provide online readings of Disney Press works, but has asked that those who read a Disney Press book online advise Disney Press via email and note at the beginning of their online reading that the work is being read with Disney’s permission.
The third scenario may not necessarily be protected by the TEACH Act or by the fair use doctrine. On similar facts, the court in American Geophysical Union v. Texaco Inc., 60 F.3d 913 (2d Cir. 1994), held that a corporation’s “institutional, systematic copying” of scientific journal articles to “increasethe number of copies available to scientists while avoiding the necessity of paying for license fees or for additional subscriptions” was not protected by fair use. Given that fair use did not apply in that situation – and given that there has not yet been a COVID-19-driven statutory expansion of fair use – it is possible that a court considering the third scenario above could come to the same conclusion as did the court in American Geophysical Union.
Bottom line. In the current climate, it is unclear whether a rights holder would be comfortable with publicly enforcing their rights in a copyright infringement lawsuit during a national emergency. But copyright law remains in effect despite the COVID-19 pandemic, and content distributors should continue to review the TEACH Act and the doctrine of fair use accordingly in the context of the materials they plan to share online.
In doing so, content distributors should consider the relative amount of material (e.g., a chapter versus an entire book) being shared and the existence of a licensed alternative to the material under consideration, and ensure that the shared material is viewable only by those with a need to view the material (e.g., students) and only during the relevant time frame (e.g., the material is accessible only through the end of the semester). COVID-19 has changed many things, but the basic principles of fair use remain the same and provide guidance regarding online sharing.