2.13. Legal and Ethical Issues: Copyright and Fair Use in Learning Design

Learning Objective for Section 2.13.: Explain the importance of legal and ethical issues related to instructional design

Using any copyrighted work for learning and training purposes required permission from the copyright owner, i.e. the publisher of the work or the employer of the work’s author, or the author/creator of the work. As stated and shared in the AOE #3 episode on the topic 3.10. Copyright and Fair Use Laws.

Here is the recap of what US laws state about the use of materials for a class, training, or learning:

Copyright Law: protects the expression of ideas but not the ideas themselves in some tangible form e.g. book, magazine, video, film, etc. Although the exact words in a book may be copyrighted the ideas in the book are not.

READ: Copyright, eLearning, and Creativity via eLearning Industry

Fair Use: is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the US Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use.” When considering if objects or materials are under fair use, you should examine the four requirements:

The purpose is for nonprofit, noncommercial educational use (typical cases)
The nature of the copyrighted work is consistent with the proposed use
The amount of the original work involved some small uses can be considered an infringement, that is, a small portion involves the core idea in the copyrighted works
The effect of using the copyrighted work is not likely to deprive the copyright holder of sales or market interest

Title 17, US Code of Federal Regulations, Section 201 There are also “Works Made for Hire” where the employer or the other person for who was hired for the work was authoring training instruments for an employer or organization as training materials to be designated their copyright.

RESOURCE: US Code: Title 17. Copyright via Cornell Law School

RESOURCE: Writing Copyright Statements for eLearning

Legal and Ethical Issues Related to Copyright and Fair Use

Things that cannot be protected by copyright include: ideas, processes, procedures, methods of operation, concepts, principles, or discoveries; however, a tangible description, explanation or illustration of these may be copyrighted.

In the United States, registering the work with the US Copyright Office provides legal protection and redress in state and federal courts; a copyright holder has the exclusive right to:

Reproduce the copyrighted work
Prepare derivative works (adaption) based on the copyrighted work
Distribute copies of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending
Perform the copyrighted work publicly, in the case of motion pictures or other audiovisual works; and
Display the copyrighted work publicly, in the case of audio or visual work.

Exclusive rights are qualified by the fair use privilege, which allows others to use copyrighted material in a reasonable manner without the copyright owner’s consent. Although legal guidelines exist, fair use is difficult legal concept to understand.

Bottom line: obtain written consent from the copyright holder to use the materials that are copyrighted, even for an educational program OR find training materials that allow for fair use or attribution for your learning/training materials. When in doubt ASK SOMEONE!

Open Up: Creative Comments and Open Education Resources

Open Up: OER for Higher Teaching, Learning, and Support Services includes The National Forum Open Licensing Toolkit [PDF]
To Share Your Work, You Gotta Put a @CreativeCommons License On It!