Video Use in Online Courses

When we want to use copyrighted video in our online courses, we need to consider the rights of the copyright holder. Copyright holders have a variety of important rights, which include the right to authorize reproductions, distributions, public performances and displays, and the creation of derivative works of their copyrighted works. So, when you are using someone else’s video, you’re likely making one of those uses. That said, a copyright holder’s rights are not unbounded—they are limited by rights held by the public.

The first consideration is that teaching in the online environment is not legally the same as teaching in the face-to-face classroom. While the content may be the same, the law privileges face-to-face teaching with rights you don’t often think about, because you have the right to make very broad uses in the classroom. Unfortunately, those rights do not extend as far in online, distance, and asynchronous learning environments.

Here is a protocol you can use to think about whether you should seek permission before using video in your online courses.

  1. If you or the University holds the copyright, you have little to worry about. As a courtesy, if it is not your unit that authored the video content you wish to use, reach out to the unit most closely associated with the video; that unit may know things you don't.
  2. If the material in the video is in the public domain—that is, the material is not protected by copyright (for instance, if the material was published before 1923), you can feel comfortable using it. The Internet has lists of works that are in the public domain, e.g.,: http://en.wikipedia.org/wiki/List_of_films_in_the_public_domain_in_the_United_States
  3. It is possible that the video you wish to use comes with a license that authorizes the use you’d like to make or that the Library has already licensed those uses for you. Staff at the Mardigian Library should be able to help you assess the existence or scope of those licenses. If the Library does have a license, use a link to access those videos, if they are available.
  4. Congress tried to create a specific limitation to address our need to use video and film in distance education (TEACH Act aka §110(2 of the Copyright Act). Unfortunately, the law, as drafted, is not easy to use and often doesn’t address the normative uses we make of film and video in the academy today. That said, North Carolina State University has developed a “toolkit” which may be helpful to you in assessing whether the TEACH Act will authorize your use. 
  5. Copyright law authorizing use of copyright-protected videos for courses in not- for-profit universities has centered on Section 110.2 (the TEACH Act) and Section 107 (Fair Use). Unfortunately, Section 110.2 does not conform to the asynchronous online teaching common currently. What means can an instructor at a public institution apply to determine the lawful use of video online?
    1. In some cases, the use you wish to make would be considered a “fair use” under §107 of the Copyright Act, which means you’d be able to make your use without authorization of the copyright holder. This assessment can be tricky because it involves weighing four factors without a lot of obvious contexts. The US Copyright office describes this evaluation at https://www.copyright.gov/fair-use/more-info.html. This limits the amount of the video that can be shown to clips. You can also seek advice from the Library Copyright Office at copyright@umich.edu, where a trained staff member can help you think through the factors.
    2. Another option is to provide a link to a video that is on a publicly-accessible site, such as YouTube. Many copyright holders put their works online on content sites to get the benefits of wide distribution and concomitant advertising revenue. You can link students to directly to that content. Don’t, however, link in ways that circumvent authentication systems or that would give students access to materials that would otherwise require a subscription they don’t have.

If all else fails, you can always seek authorization from the copyright holder. Sometimes it will be inexpensive or free; other times you’ll have to pay the “going rate.” There are also licensing services that allow you to seek out a company rather than each copyright holder. For instance, to license public performances of many films, a good place to start ishttp://www.swank.com. More detailed information about the use of commercial videos for classroom use can be found at: umdearborn.edu/policies_videos/.

In the end, there are viable ways to incorporate video into your online courses.

Jack Bernard
Associate General Counsel of The University of Michigan
June 2015

For assistance on the Dearborn campus, contact Bob Fraser by email (rfraser@umich.edu) or telephone (593-3740).

 

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