Who owns the Audio/video Recordings of Class Sessions?
Can Students Independently Record Class Sessions?
Posting the entirety of a copyrighted work (articles, images, video, audio) on a public-facing website (available to the world) without first asking permission of the copyright holder is likely copyright infringement. You may, however, be able to post an excerpt of the work if it constitutes a fair use, or is not an infringement under another copyright law exception.
Under certain circumstances (see below), it may be permissible to post copyrighted material to a closed website (for example, a course site limited only to students in the class for a limited amount of time).
Historically, educators in nonprofit educational institutions that taught classes face-to-face have enjoyed a great deal of freedom and flexibility under the law to read aloud and teach from books, play movies or songs, or even act out plays. The same freedom was not always present in the online / distance learning environment because of concerns that the extensive copying of a creative work to facilitate teaching from it would result in market displacement, or otherwise harm copyright owners. With the rise and popularity of distance learning programs, the Technology, Education, and Copyright Harmonization Act ("TEACH Act") was passed in 2002 as a way to expand the ability of online educators to perform and display in-copyright works in the digital classroom. The TEACH Act redefines the terms and conditions upon which accredited, nonprofit educational institutions in the United States can use in-copyright materials in distance education and by other digital means without having to seek permission from the copyright holder or a payment of fees each and every time. While the TEACH Act tries to expand the rights of educators within the digital classroom to show or perform more works, the Act has a number of requirements to fit within the safe harbor it creates.
Some of the requirements for the TEACH Act to apply include:
There can be civil or criminal penalties for faculty, students or relevant staff. There also can be injunctions issued (for example, a court could issue an order for someone to stop doing an activity, such as posting infringing materials in a course reserves site). In general, if someone is found guilty of infringing a copyright, the court can award statutory damages between $750 and $30,000 per infringement of each work. If the court finds an infringement was willful, the court may increase the damages for each infringement up to $150,000 per infringement of each work. If a court finds that an infringer was not aware and had no reason to believe that his or her acts constituted a copyright infringement, the court may reduce the damages to as low as $200 per infringement. Importantly, a court can refuse to award statutory damages at all when library personnel are making photocopies as part of their employment, and believed, and had reasonable grounds to believe, that the copying was a fair use. See 17 USC 504(c)(2)(i).
In order to utilize the TEACH Act the following conditions must be met:
These are only a few of the Act's 22 separate requirements. A user-friendly checklist is available at this link from the University of Texas Libraries - https://guides.lib.utexas.edu/copyright/teachactchecklist.
Many instructors find that the TEACH Act's requirements are too cumbersome and numerous to consistently apply, and instead turn to fair use to fill in some of the gaps that the TEACH Act does not cover. Fair use is a powerful and important tool for educators, but it is not without its reasonable limits. Specifically, factor four of the test looks at the market harm that might result to the rights-holder if his/her/ze's work is copied extensively without permission. Placing the work in an online environment may make it more likely that a work is further copied or distributed, or that the market for a particular work is impacted.
Instructors who scan and mount their own electronic readings should include a copyright statement at the beginning of each protected document. The Library uses the text below:
The copyright law of the United States (Title 17, United States Code) governs the making of photocopies or other reproduction of copyrighted material.
Under certain conditions specified in the law, libraries and archives are authorized to furnish a photocopy or other reproduction. One of these specific conditions is that the photocopy or reproduction is not to be "used for any purpose other than private study, scholarship, or research." If electronic transmission of reserve materials is used for purposes in excess of "fair use," that user may be liable for copyright infringement.
For instructors utilizing Coursera (https://www.coursera.org/), the massive open online courseware (MOOC) used by Penn and many other universities, there are several special copyright considerations.