Copyright considerations begin when you make a copy of something (physical or digital). So the simplest way to avoid needing to think about copyright is to avoid making copies whenever possible. Instead, see if the material you’d like to share is hosted somewhere you can link out to. 

• Is it available anywhere on the open web that you can link to instead of making a copy? 
• Maybe the library can facilitate access to it, either by linking to licensed digital holdings or via old school course reserves (textbooks or other assigned course materials available for 2-hour in-library use).
• Planning on assigning most or all of a book over the course of a semester? Ask the library about putting a copy on reserve and then encourage students to either purchase the book or access it through the library.

Overview + Legal Disclaimer

We access stuff. We share stuff with our students. Other people have rights in some of that stuff. What materials can we use in our teaching, and how? This resource does not constitute legal advice but it does highlight some important considerations when it comes to copyright and fair use in the college classroom.

Best Option #1: Whenever Possible, Avoid Creating Copies

Copyright considerations begin when you make a copy of something (physical or digital). So the simplest way to avoid needing to think about copyright is to avoid making copies whenever possible. Instead, see if the material you’d like to share is hosted somewhere you can link out to. 

• • Is it available anywhere on the open web that you can link to instead of making a copy? 
  • Maybe the library can facilitate access to it, either by linking to licensed digital holdings or via old school course reserves (textbooks or other assigned course materials available for 2-hour in-library use).
  • Planning on assigning most or all of a book over the course of a semester? Ask the library about putting a copy on reserve and then encourage students to either purchase the book or access it through the library.

Best Option #2: Use Copyright-Exempt Materials (Creative Commons + Public Domain)

There are categories of works not subject to copyright, which can be copied freely to your heart’s content. Two of these categories are Creative Commons-licensed works (CC) and public domain works.

Creative Commons licensing is an alternative paradigm that allows creators to exempt their own works from copyright protection and make them more available and accessible to others to use, adapt, and remix. The Open Educational Resources (OER) movement relies heavily on CC-licensed textbooks and other teaching materials to reduce cost barriers for students. Want help finding OER or CC-licensed materials for your discipline? Check out our OER @ NMC guide or contact an NMC librarian.

Under U.S. copyright law, all works eventually enter the public domain, at which point they can be used, copied, adapted, and remixed freely. Currently, all works published in 1929 or earlier in the U.S. are in the public domain. Because copyright law has changed several times over the past century, some works published after 1929 have entered the public domain as well, but the majority of works published after 1929 still enjoy some form of copyright protection.

Fair Use in the College Classroom

In some cases, you will want to share supplemental materials with students enrolled in your courses. The longstanding legal doctrine of ‘fair use’ supports educational uses by carving out some important exceptions to copyright. That said, it’s a notoriously ambiguous area of law that changes substantially with changes in technology and publishing. 

For a particular use case to qualify as ‘fair use,’ four factors are weighed:

1. 1. The purpose and character of the use
   2. The nature of the copyrighted work
   3. The amount or proportion of the work used
   4. Impact on the market for or value of the work

With these factors in mind, some important questions for instructors to consider are:

• What is the smallest proportion of this work that will serve my pedagogical goal or learning outcome? 
  • If a brief excerpt will suffice, fair use may be a viable option.
• Was this material specifically designed with college students as the primary audience? 
  • For instance, a textbook is created for the exact purpose of being used as reference material in a course. Copying sections of a textbook and sharing them with students is less likely to be considered a fair use than copying a short excerpt from a book aimed at general audiences.
• Does the publisher offer a system for licensing or accessing smaller sections of the work (e.g. chapter by chapter as opposed to the full work)? 
  • If so, providing a copy of a chapter to students is much less likely to be considered a fair use.
• How different is my purpose in using the work than the purpose of the work’s creator?
  • Fair use provides robust protections for activities such as commentary, review, satire and various educational uses. For instance, a film instructor may show a clip of a film to illustrate a particular approach to lighting or cinematography. The primary aim of the filmmaker in this case was likely not to teach film students about lighting or cinematography, so the use may be sufficiently different to be considered a ‘transformative’ use, a specific type of fair use. A use that aligns more closely with the creator’s intended aims would be less likely to be considered transformative in this way.

Case law offers some guidance and precedent when it comes to fair use in educational contexts. These are best thought of as best practices or guidelines.

• Courts have found uses of more than a chapter of a larger work not to constitute fair use. This doesn’t guarantee that uses of a chapter or less would be fair use, but it does strongly suggest that you should not copy more than a single chapter.
• Courts have looked unfavorably on uses of even a single chapter in cases where the publisher offers a way to pay for access to single chapters without purchasing access to the work as a whole.
• Courts generally look unfavorably on fair use arguments for substantial uses of works that are available for purchase or licensing (e.g. films that have educational licensing options, but which the instructor makes a digital copy of to facilitate student access without paying the licensing fee).

Accessibility

There are special exceptions to copyright related to accessibility of materials, but they generally only apply in cases where a publisher or creator has not made an accessible version of a work available. In these cases where an accessible version or format is lacking, copyright law allows for the creation of accessible formats, but this exception exclusively applies to users who need accessibility accommodations.

Faculty Intellectual Property Rights

In general, works created by NMC faculty in the scope of their employment are considered ‘work for hire,’ meaning the relevant intellectual property rights in those works are held by the college. However, faculty retain important rights related to two special categories of works: ‘Traditional Works of Scholarship’ and artistic or creative works.

‘Traditional Works of Scholarship’ include materials such as course lectures (as delivered through any variety of media), written analyses, scholarly research, speeches, study guides, lab manuals, bibliographies, glossaries, syllabi, lesson plans, handouts, assignments, test/quiz questions, and test/quiz answers. While the rights to these still lie with the college, faculty retain an ‘exclusive non-transferable, non-assignable license’ to publish such works.

For artistic and creative works, faculty fully retain intellectual property rights unless the work is commissioned by the college or developed with the aid of significant college resources.

See Staff Policy D-506.02 Intellectual Property Rights for more details.

Student Intellectual Property Rights

While there is no dedicated NMC policy on this topic, there is a longstanding understanding in education that students retain intellectual property rights in their academic and creative work, with the exception of some works that may fall under ‘work for hire’ created within the scope of student employment. For this reason, copying or otherwise uploading or distributing student work without permission may be a violation of their intellectual property rights (in addition to likely FERPA implications).

Other Helpful Resources

• ‘Can I Use This?’ doc (needs refresh)
• Teaching and Educational Use (UMN Libraries Copyright Information Services)
• Copyright and Fair Use (Harvard University Office of General Counsel)