Copyright and Digital Media in Education

Current Status

The Copyright Act provides educational users two kinds of limitations on the exclusive rights of copyright owners. The Copyright Office has added a third exemption for educators.

1. Educational Exemptions

The most specific kind of limitation is exemptions for educational institutions, which are covered in §110. Face-to-face education is covered in §110(1), and distance education is covered in §110(2).

Oversimplified summary: An instructor or students can display or perform copyrighted works in systematic face-to-face education without a license (provided the protected work was acquired legally and contributes materially to the educational objectives of the course). But dramatic works cannot be transmitted to a distant site or provided asynchronously.

The law presupposed the technology of 1976: transmission by television. It did not envision the Internet. As a result, it was outdated in the 1990s. The TEACH Act of 2002 changes the provisions of §110(2) to take new technology into account. The TEACH Act requires deliberate action on the part of the educational institution; for example, publishing policies and providing education regarding copyright. To my knowledge, the University of Pennsylvania does not yet meet the prerequisites for taking advantage of the TEACH Act.

2. Fair Use

The second and broader kind of limitation is fair use. Fair use is covered in §107. Fair use covers situations not covered by the more specific educational exemptions.

The law provides fair use as an exemption from the exclusive rights of authors -- but without spelling out specifics. Instead, it provides four general criteria that have been used by courts to determine whether a particular use is fair.

The CCUMC "Fair Use Guidelines for Educational Multimedia" is currently the best guide to fair use of multimedia by educational institutions. These guidelines apply to "use, without permission, of portions of lawfully acquired copyrighted works in educational multimedia projects created by educators or students as part of a systematic learning activity by nonprofit educational institutions."

Oversimplified summary: Institutions adhering to the CCUMC guidelines will only use limited portions of copyrighted materials, for limited times, and in situations that limit the users to properly enrolled students.

3. Educational Exemptions to the Digital Millennium Copyright Act

The 1998 Digital Millennium Copyright Act makes it illegal to bypass software "locks" known as Digital Rights Management. Thanks to the petition of three University of Pennsylvania professors, the Copyright Office in 2009 provided an exemption to allow educators to make small clips.

(1) Motion pictures on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances:

(i) Educational uses by college and university professors and by college and university film and media studies students; (ii) Documentary filmmaking; (iii) Noncommercial videos.

The full statement of the change is available from the Library of Congress.

A new exemption for the use of movie clips in MOOCs was announced in October of 2015.

Last modified:
Jay C. Treat, Ph.D.