Podcasting and video content have become fundamental pedagogical tools in contemporary online education, enabling educators to deliver lectures, conduct remote demonstrations, facilitate discussions, and create engaging learning experiences. However, this medium introduces distinct and complex copyright challenges that differ significantly from traditional classroom instruction. Unlike showing a DVD in a physical classroom, streaming content to online students or publishing educational podcasts involves multiple layers of copyright protection, contractual restrictions, and technical barriers that educators must navigate to remain legally compliant.
The core challenge stems from a fundamental distinction in copyright law: face-to-face classroom instruction enjoys broad exemptions from copyright restrictions that do not automatically extend to online or recorded environments. When a teacher performs or displays copyrighted material in person before enrolled students, copyright law traditionally permits this under Section 110(1) of the U.S. Copyright Act. However, uploading that same material to a learning management system or streaming platform represents unauthorized copying and distribution, violating copyright law without proper licensing, permission, or fair use justification.
The Critical Role of Synchronization Licenses in Video and Podcast Content
One of the most frequently misunderstood copyright requirements involves synchronization (sync) licenses, which are essential when combining music with any other content—whether audio narration in a podcast or visual elements in video.
A synchronization license grants permission to pair music with visual content or other audio. When you add background music to a podcast, include music in video introductions or transitions, or incorporate any copyrighted songs into educational videos, you are creating what copyright law calls a “synchronization,” which legally requires a sync license. This requirement applies regardless of whether the music plays prominently or quietly in the background, whether video content is commercial or educational, and whether music is the primary focus or incidental accompaniment.
The complexity intensifies because every copyrighted musical work contains two distinct copyrights that require separate clearance. The composition copyright covers the written song itself—the melody, lyrics, and arrangement created by the songwriter or composer. The sound recording copyright covers the specific recorded version of that composition—the particular performance and production by musicians and engineers. A sync license for podcast or video use requires obtaining permission from both rights holders. This means that even if you clear rights with the song publisher for the composition, you must separately negotiate with the record label or sound recording owner to use that specific recording.
For educators attempting to use well-known songs in educational videos or podcasts, this dual licensing requirement often becomes prohibitively expensive. Sync licenses are individually negotiated with no collective pricing organization, and costs vary dramatically based on context (whether the video will receive millions of views or hundreds), duration of use, platforms where content appears, and negotiating leverage of copyright holders.
Music Licensing Options for Podcasters and Video Educators
Rather than attempting to license commercial music, educators have several practical alternatives. Royalty-free music libraries provide pre-cleared music specifically designed for podcast and video use, with transparent licensing agreements included upfront. These libraries typically cost far less than licensing commercial music and include proper sync rights for podcast and video distribution.
Creative Commons-licensed music offers another free or low-cost option. Platforms like Free Music Archive and Incompetech provide music that creators license under specific Creative Commons terms, allowing use under defined conditions (typically requiring proper attribution). However, educators must verify each work’s specific CC license, as requirements vary.
Original compositions or original performances by educators themselves eliminate licensing entirely, though they require musical capability or access to musicians. For many educational institutions, the most practical approach involves combining royalty-free music for general content (introductions, transitions, background) with carefully licensed commercial music only when specific pieces serve pedagogical purposes.
The TEACH Act: Structured Protection for Online Educational Content
The Technology, Education, and Copyright Harmonization (TEACH) Act, codified as Section 110(2) of U.S. Copyright Law, provides the primary statutory framework allowing educators to transmit copyrighted content to students in online learning environments. The TEACH Act represents Congress’s explicit attempt to make online instruction comparable to face-to-face classroom instruction by creating limited exemptions from copyright restrictions.
Under the TEACH Act, educators and accredited nonprofit educational institutions may perform or display copyrighted works online under specific conditions:
Types of works permitted include the entire performance of nondramatic literary and musical works without limitation—for example, streaming an entire poem, short story, or classical musical composition. However, only “reasonable and limited portions” of dramatic works may be transmitted, including films, television programs, plays, and musicals. The Fair Use Guidelines for Educational Multimedia suggest that “reasonable and limited” means no more than 10% of a motion picture, though the statute does not explicitly define this threshold.
Displays of images and artwork are permitted in amounts comparable to what would be displayed in a face-to-face classroom—generally a single image at a time rather than collections.
Critical limitations restrict TEACH Act protections from covering materials specifically marketed for use in online courses, such as textbooks, online workbooks, and materials created explicitly for digital instructional delivery. The TEACH Act also does not protect use of illegally made or acquired copies.
Institutional obligations are substantial and often overlooked. The institution must be an accredited nonprofit educational establishment or governmental body. The institution must adopt copyright policies and provide information to faculty, students, and staff about copyright law. Critically, the institution must apply technological protection measures that reasonably prevent unauthorized further dissemination of transmitted works beyond enrolled students. This technological requirement—preventing students from downloading, copying, or redistributing course content—is often the most challenging institutional obligation.
Instructor obligations require that the performance or display be made, directed, or supervised by the instructor, be integral to a class session offered as part of systematic mediated instructional activities, and be directly related to course content. The instructor cannot simply stream copyrighted movies as entertainment but must integrate them into instructional design with clear pedagogical purposes.
Fair Use in Online Educational Video and Podcasting
While the TEACH Act provides structured protection, fair use doctrine offers additional flexibility for educators who cannot meet TEACH Act requirements or who wish to use content in ways TEACH Act does not permit. Fair use allows limited use of copyrighted works for purposes including criticism, comment, news reporting, teaching, scholarship, and research.
Courts increasingly recognize that educational use, particularly when transformative, may constitute fair use in online contexts. When Professor Wang streams DVD films to her summer online course students—making the content temporally available (only during summer semester), geographically accessible (to students unable to visit campus video facilities), and technically restricted (students cannot download or copy)—courts are likely to treat this as a transformative educational use and therefore fair use.
The key factors courts consider include the purpose and character of use (is it transformative or merely substituting for the original?), the nature of the copyrighted work (is it creative or factual?), the amount and substantiality of the portion taken (is only necessary material used?), and the effect on the market (does it compete with or harm the original work?). Educational uses performed transparently with clear pedagogical objectives that do not substitute for purchasing the original work tend to strengthen fair use arguments.
However, educators must recognize that fair use is a defense rather than a guarantee, requiring litigation to establish. This means fair use does not prevent copyright holders from filing claims, forcing educators to defend their use in court—an expensive proposition even if ultimately vindicated.
Critical Platform Restrictions: When Contractual Terms Override Legal Rights
A frequently overlooked but critically important principle: contractual terms and end-user license agreements supersede copyright law exemptions. This creates a paradox where activities legal under copyright doctrine become prohibited through contract.
Consider Netflix: while an educator might argue that showing a limited portion of a film qualifies as fair use under copyright doctrine, Netflix’s Terms of Use explicitly state that “The Netflix service and any content accessed through our service are for your personal and non-commercial use only and may not be shared with individuals beyond your household” and “You agree not to use the service for public performances”. By clicking “I agree” to Netflix’s terms, subscribers contractually waive their copyright-based fair use rights.
This principle applies broadly: Hulu explicitly prohibits educational classroom use in its Terms and Conditions, describing permitted use as “personal, non-commercial purposes” only. Amazon Prime Video, HBO, and similar services contain comparable restrictions. The existence of a copyright exception does not override these contractual prohibitions.
Netflix does provide a limited exception: educational screenings of select Netflix Original documentaries are permitted on a one-time basis per semester, with documentation provided through Netflix’s website indicating which documentaries qualify. However, this narrow exception covers only specific content and requires compliance with Netflix’s particular procedures.
For educators, the practical implication is critical: institutional licensing through academic streaming providers is essential. Universities and schools should subscribe to academic video libraries such as Alexander Street Academic Videos Online and RightNow Media, which explicitly permit classroom viewing and streaming. These platforms’ licensing agreements include educational rights, making their use legally straightforward.
Digital Millennium Copyright Act (DMCA) Complications in Online Instruction
The Digital Millennium Copyright Act (DMCA), enacted in 1998, creates additional legal barriers for educators working with video content. The DMCA prohibits circumventing technological protection measures placed on copyrighted works, such as copy-protection mechanisms on DVDs. This means that even if fair use or TEACH Act protections would justify use of a video, breaking the technological locks to extract clips violates the DMCA, independent of copyright considerations.
For example, if Professor Soleway wishes to create short video clips from a commercial DVD for her online film studies course, doing so legally requires either:
- Screen capturing the video without breaking technological locks (though this may result in poor quality)
- Finding a legally available copy without technological restrictions
- Using an institutional streaming license that permits such use
Importantly, the U.S. Copyright Office has carved out DMCA exemptions for specific educational circumstances. Beginning in 2010 and updated through the most recent 2024 rulemaking, exemptions allow educators to circumvent technological protections for the purpose of creating subtitles and captions for hearing-impaired students when:
- An educational institution is responsible for providing disability access under applicable laws (ADA, Section 504, or IDEA)
- The institution has made reasonable efforts to obtain accessible versions at fair cost or timely manner
- The captioned video is stored privately and only shared with students and educators
- Uploading to secure platforms like private YouTube channels or learning management systems is acceptable
These DMCA exemptions significantly expand educators’ practical ability to create accessible educational content while technically complying with both DMCA and copyright law.
YouTube Content ID and Educational Content Challenges
Educators publishing instructional content on YouTube face unique challenges from YouTube’s Content ID system, an automated copyright protection mechanism that scans millions of hours of video uploaded daily against databases of copyrighted works. Content ID performs digital fingerprinting—matching uploaded videos against content registered by copyright holders—and identifies even brief excerpts (sometimes as short as five seconds).
When Content ID identifies copyrighted material, the copyright holder can choose to mute the audio, block the video from viewing, track views, or monetize the video by inserting ads. Educational channels frequently experience problems when Content ID monetizes educational videos for corporate benefit: major music publishers like Universal Music Group, Sony Music Entertainment, and Warner Chappell can claim advertising revenue from videos showing short musical excerpts used for educational purposes.
The core problem: Content ID operates automatically and cannot distinguish fair use from piracy. An educator demonstrating how to identify musical intervals by playing five-second excerpts of Beyoncé songs faces identical treatment as someone uploading bootlegged music videos—Content ID cannot differentiate the pedagogical context or transformative purpose of the educational use.
For educators challenging Content ID claims, the dispute process is cumbersome. YouTube allows creators to file disputes asserting fair use, but this requires careful documentation of the fair use argument and often results in prolonged video unavailability while disputes proceed. Some educational content creators have successfully asserted fair use against Content ID claims, but the process is time-consuming and uncertain.
Practical Recommendations: Fair Use for Podcast and Video Education
Despite the complexity, educators can pursue reasonable fair use strategies for podcasting and video education when following careful practices:
For podcasts incorporating copyrighted material: Fair use may permit podcasters to use excerpts of news reports, published interviews, or other speech for purposes of criticism, commentary, and news reporting. Using short excerpts of copyrighted music to critique or review music constitutes a potential fair use argument, particularly if the excerpt is brief, the commentary is substantive, and the podcast does not compete with the original work’s market. However, podcasters should not assume fair use will protect them; instead, it should be considered one layer of defense when licensing is unavailable, combined with other protective practices.
For educational videos: Similarly, educators can make fair use arguments for using short video excerpts, film clips, or images in original educational videos with significant added commentary, analysis, or modification. A video analyzing how a particular scene depicts divorce in cinema could incorporate brief clips from films if the clips are necessary to the analysis, limited in duration, and contextualized by substantial educational commentary. The added pedagogical value strengthens the fair use argument significantly.
For streaming to enrolled students: Streaming limited portions of copyrighted video content through institutional learning management systems to restricted audiences of enrolled students creates conditions particularly favorable to fair use analysis. Access restriction, temporal limitation (content available only during the course), and educational purpose all support fair use arguments.
Documentation is essential: When relying on fair use in podcasts or videos, maintain detailed records documenting the educational purpose, the specific excerpts used, their duration, the context of use within the broader work, and the transformative commentary provided. This documentation becomes invaluable if copyright disputes arise.
Distinguishing Fair Use from Copyright Infringement in Podcasting
A subtle but critical point: copyright scholars and practical podcasting experience show that fair use is regularly employed without legal challenge, particularly by educational and journalism-focused podcasters. The Podnews article citing copyright scholars emphasizes that podcasters use fair use every day when incorporating news reports, interviews, background sounds, and other copyrighted material for purposes of commentary and analysis—and rarely face lawsuits. This reflects the reality that copyright holders often lack resources or incentive to sue educational or small-scale podcasters, particularly when fair use arguments are reasonable.
This reality differs from the blanket warnings suggesting podcasters should never use copyrighted material without licensing. A more nuanced approach acknowledges that small-scale educational podcasters addressing niche audiences can often employ fair use principles without substantial legal risk, provided they use material thoughtfully, maintain reasonable limits on excerpt length and frequency, and ensure sufficient original commentary or transformation.
Accessibility Considerations: Adding Captions and Descriptions
Educators creating podcasts and videos should prioritize accessibility—adding captions, transcripts, and audio descriptions for students with disabilities. Importantly, when educational institutions caption or add descriptions to copyrighted video content for accessibility purposes, this generally qualifies as fair use under the DMCA exemption. Educational institutions may circumvent technological protections to add subtitles and captions when:
- No accessible version is available at fair cost or within reasonable timeframes
- The institution is obligated to provide disability access under applicable law
- The accessible version is stored privately and provided only to students and educators
This creates important flexibility for educators wanting to make video content fully accessible while remaining legally compliant.
Comprehensive Best Practices for Educational Podcasters and Video Content Creators
Use institutional resources and licenses: When available, leverage your institution’s licenses with academic video streaming services, music libraries, and digital repositories. These licensed sources eliminate copyright complexity.
Source legally available content: Begin with public domain materials, Creative Commons-licensed content, Open Educational Resources, and government-produced materials (which are typically public domain).
Document sync license requirements carefully: Before incorporating any copyrighted music into podcasts or videos, determine whether music is public domain, Creative Commons-licensed (with specific conditions noted), or requires sync licensing.
Apply transformative principles: Use copyrighted material to support original analysis, criticism, or commentary rather than merely reproducing content for its original purpose.
Limit excerpt length and frequency: Use only as much copyrighted material as necessary; avoid repeated use of the same excerpt throughout a podcast or video.
Provide context and attribution: Frame copyrighted excerpts with substantial original commentary and always attribute sources.
Implement technical restrictions for online courses: When streaming copyrighted material through learning management systems, ensure students cannot download or reproduce content.
Consider institutional TEACH Act compliance: If your institution meets TEACH Act requirements (accredited nonprofit status, copyright policies, technological protections), understand how Section 110(2) may protect your educational transmissions.
Summary: Navigating the Complex Copyright Landscape
Copyright considerations for podcasting and video content in online education involve multiple overlapping legal frameworks: copyright fair use doctrine, statutory exemptions like the TEACH Act, the DMCA’s anti-circumvention provisions, synchronization licensing requirements for music, contractual terms of streaming platforms, and YouTube’s Content ID system. While these requirements create genuine complexity, they are not insurmountable. Educators who understand the distinctions between these frameworks, source content from licensed and open repositories when possible, apply fair use principles thoughtfully when necessary, and maintain careful documentation can create rich multimedia learning experiences while remaining legally compliant. The key is recognizing that copyright law in online education is not binary—it offers multiple legitimate pathways to educational content, each with distinct requirements and protections.