I am an engineering instructor at a community college working with other teachers across the country to collaborate on an open, online introductory course for students in our field. In this course there are copyrighted materials – mostly animations of how certain machines work in a given context – being distributed. My question is can we include these materials, which are vital to proper illustration for students, or is the sharing of these copyrighted materials violating fair use law?
Great project! You’ll be helped by understanding how the copyright doctrine of fair use works in this case. The best place for you and your colleagues to start when facing these questions would be with the Code of Best Practices in Fair Use for OpenCourseWare. That code, created by OpenCourseWare designers with CMSI’s facilitation, is filled with the ins and outs of fair use law recommendations for situations like yours. But your question specifically lines up with the portion about ‘copyrighted material used for demonstration and explanation.’ Fair use is context-dependent, and quite flexible depending on your re-use of this material. The code identifies the most common situations in which fair use comes up for OpenCourseWare designers, including illustrations and demonstrations, and states that ‘uses for demonstration and explanation can be fair when the instructor is not merely trying to save effort in constructing a lesson.’ Also the most comprehensive argument for fair use ‘arises when the copyrighted content was prepared by the copyright owner for purposes other than education and is not actively being licensed in the educational market.’ The Code also identifies the limits of fair use in these situations. For instance, there should be no other ready substitute available to the materials you are using and those materials should be integral to the lesson. A few other limitations exist in these kinds of cases, but when you’ve aligned your uses and the principles and limitations of the Code, you’ll know where your fair use friendly zone is. Good luck!