Fair use applies equally to online and distance learning as it does to in-person teaching, but the legal landscape differs significantly. While in-person classroom teaching enjoys a broad statutory exemption (Section 110(1)), distance education must rely on either the TEACH Act (Technology, Education, and Copyright Harmonization Act)—which is restrictive and applies only to nonprofit institutions—or the more flexible fair use doctrine. For most OER in distance learning contexts, fair use proves superior to the TEACH Act because it permits a wider range of uses, applies to for-profit institutions, and enables materials in multiple formats necessary for robust distance learning. Restricting access to enrolled students through password-protected learning management systems strengthens fair use arguments significantly. The Code of Best Practices in Fair Use for OER explicitly addresses distance learning, confirming that transformative educational uses—incorporating copyrighted content in new pedagogical contexts with clear educational purpose—qualify as fair use in online environments. This guide addresses the legal frameworks, practical scenarios, and implementation strategies for using copyrighted content and OER in distance learning contexts.
The Legal Framework: Fair Use vs. TEACH Act vs. Classroom Exemption
Understanding the three legal mechanisms available for distance education is essential to making smart copyright decisions:
Mechanism 1: Classroom Exemption (Section 110(1))—Does NOT Apply Online
The broadest copyright exemption in U.S. law applies to face-to-face classroom teaching:
What It Allows:
- Display or performance of any copyrighted work in person-to-person teaching activities
- Minimal restrictions compared to other copyright exceptions
- No need to analyze fair use or obtain permission
Critical Limitation: “Face-to-face teaching activities” means in-person classroom.
For Distance Learning: Does NOT apply. Online teaching, even synchronous (live) teaching, falls outside this exemption because it is not “face-to-face”.
Implication: Distance educators cannot rely on the broad classroom exemption. They must use fair use or the TEACH Act instead.
Mechanism 2: TEACH Act (Section 110(2))—Restrictive but Targeted
The TEACH Act, enacted in 2002, attempted to update copyright law for digital distance education:
What TEACH Act Permits
Eligible Institutions:
- Accredited non-profit educational institutions
- Government entities
- Does NOT include for-profit institutions
Eligible Works:
- Nondramatic literary works (can perform/display)
- Nondramatic musical works (can perform/display)
- Any work in amount comparable to face-to-face teaching (display)
- Does NOT include dramatic works, audiovisual works in entirety, works marketed for distance education
Permitted Actions:
- Transmit performances of nondramatic works to distance students
- Display any work in amount appropriate to lesson
- Digitize analog works if digital version unavailable or inaccessible
- Store digital copies for limited time necessary for transmission
TEACH Act Requirements
Institution Must:
- Have copyright policies
- Distribute copyright policies to faculty, staff, students
- Notify students that course materials may be copyright protected
- Limit access to enrolled students (technologically feasible)
Access Controls:
- Passwords or other authentication
- IP address authentication
- Remove access after course ends
- Prevent downloading/copying where possible
Digitization Restrictions:
- Cannot digitize if digital version already available
- Cannot digitize works marketed for distance education (e-textbooks, online workbooks)
- Cannot digitize to create permanent archive
Why TEACH Act Often Inadequate
Despite its specificity to distance education, TEACH Act proves too restrictive for most modern distance teaching:
Problem 1: Entire Audiovisual Works Prohibited
- Cannot stream entire films, videos
- Limited to clips/brief excerpts
- But film studies, media analysis, documentary use require entire works sometimes
- Fair use permits entire works if transformative
Problem 2: Works for Distance Learning Excluded
- E-textbooks, online workbooks cannot be used under TEACH Act
- Digitization of these materials not permitted
- BUT these are exactly what educators might want to digitize
Problem 3: Applies Only to Non-Profit Institutions
- For-profit colleges, corporate training programs, independent educators cannot use TEACH Act
- Must rely entirely on fair use or permission
Problem 4: Time Limitation
- Materials must be removed after course ends
- If you want to keep courses available for future students, fair use better option
Quote from Library Guidance: “If you cannot operate within these constraints [TEACH Act], you may still be able to provide electronic access to copyrighted materials under the long-standing principle of fair use”.
Mechanism 3: Fair Use (Section 107)—Flexible and Broad
Fair use is the most important copyright exception for distance education because it is flexible, applies to all institutions, and does not impose time limitations.
Key Principle: “Fair use is platform specific” means fair use applies equally to online teaching as in-person teaching. The medium is irrelevant.
Flexibility: Same four-factor analysis applies regardless of delivery method.
Applicability: Works for nonprofit and for-profit institutions, individuals, and commercial uses (though educational context favors fair use).
Fair Use in Distance Learning: The Four-Factor Analysis
Fair use applies to distance learning using identical four-factor analysis as in-person contexts. However, certain factors receive particular attention in distance learning environments:
Factor 1: Purpose and Character of Use—Educational Context Strong
Distance Learning = Education:
“Teaching to distance students” is still teaching. The fact that students are remote rather than in-person does not change the nature of educational use.
Transformative Use:
- Using copyrighted material to teach something new = transformation
- Example: Documentary film clip used for film studies analysis = transformative (original purpose: entertainment; new purpose: technical analysis)
- Example: News article assigned for critical reading and discussion = transformative (original purpose: reporting; new purpose: analytical study)
Example Analysis:
“Professor reading complete poem aloud during live online lecture” = strong fair use
- Purpose: Educational (teaching poetry)
- Character: Transformative (reading for critical study, not for entertainment)
- Medium (online vs. in-person): irrelevant; fair use applies same way
Entertainment Use Not Fair Use:
“Using copyrighted material for entertainment purposes in online course” does NOT qualify as fair use.
Factor 2: Nature of the Work
Creative Works: Films, music, literature are creative works. Creative nature alone does NOT prevent fair use; educational purpose does.
Example: Film studies course incorporating entire commercial film for critical analysis
- Nature: Creative dramatic work (less favorable than factual)
- BUT: Educational purpose and transformation support fair use
- Conclusion: Fair use likely applies
Factor 3: Amount and Substantiality
Brief Excerpts/Clips Generally Safest:
- 10-minute film clip from 2-hour movie = fair use
- Brief quotations from longer text
- Key images/photographs
- Representative excerpts
Entire Works Acceptable When Necessary:
- Entire film for film analysis (entire work IS pedagogical unit)
- Entire short story or poem when analyzing complete work
- Entire photograph (photographs are unified wholes)
Enhancement Strategy: Add contextual materials
- Study questions after video clips
- Background readings and annotations
- Discussion prompts requiring critical analysis
- “Recontextualizing works through selection, arrangement, background readings, study questions, commentary, criticism, annotation” strengthens fair use
Factor 4: Effect on Market
Distance Learning ≠ Market Substitution Usually:
Students using OER in distance course do NOT reduce sales of original copyrighted work. The markets are different:
Original Markets (unharmed):
- Film sales/rentals
- News publication subscriptions
- Music licensing
- Book sales
Educational Market (new use):
- Teaching and learning
- Course materials
- Scholarship
But Licensing Markets Matter:
If copyright holder actively licenses the same material for educational use, fair use weakens:
Example: Media Education Foundation licenses documentaries for streaming ($150-295/year)
- Licensing market exists
- Educator avoids license by using fair use = market harm
- Fair use weaker in this circumstance
Best Practice: Check whether licensing available; if reasonable cost and covers your use, consider licensing instead.
The Critical Role of Access Restrictions
One of the most significant factors strengthening fair use in distance learning is restricting access to enrolled students only. This is so important it deserves detailed examination.
Password-Protected Learning Management Systems
What Strengthens Fair Use:
Using password-protected course management systems (Canvas, Brightspace, Blackboard, Moodle) with access limited to enrolled students creates the strongest fair use position for distance learning.
How It Works:
- Instructor posts copyrighted material only within course
- Students must authenticate (login) to view material
- Only students officially enrolled in course can access
- Access disabled after course ends
Why It Helps Fair Use:
- Demonstrates educational purpose
- Shows good faith limitation
- Reduces copyright holder’s market harm (not publicly available)
- Signals institutional control
- Quote: “Access limited to students enrolled in class” = positive factor in fair use analysis
Comparison: Restricted LMS vs. Public OER
Restricted LMS Access:
- Password-protected Brightspace = STRONGEST fair use position
- Enables use of entire copyrighted works more confidently
- Example: Stream entire feature film to enrolled students only
Publicly Accessible OER:
- Inherently publicly accessible = slightly weaker fair use position for same use
- But fair use STILL applies
- OpenCourseWare Code: “Scope of fair use likely broader behind university firewall than when materials placed on public internet”
- BUT: Fair use NOT negated by public access; just requires more care
Implication: Same copyrighted content in password-protected course = stronger fair use. Same content freely available online = slightly weaker but still fair use.
Technical Measures Enhancing Fair Use
Beyond passwords, additional technical measures further strengthen fair use position:
Recommended Measures:
- Password/login requirement (minimum)
- IP address authentication (optional but helpful)
- Streaming rather than downloadable format (stronger than downloads)
- Two-factor authentication (optional but demonstrates control)
- Watermarking on PDFs or images
- Print-disabling on sensitive documents
- Copy/paste restrictions
- Download restrictions
- Time-limited access (materials expire after course ends)
Rationale:
These measures demonstrate institutional commitment to limiting use to educational purposes. They signal to copyright holders that the institution exercised good faith control.
Balance: Code of Best Practices guidance:
- Less obtrusive measures (password protection) often as effective as strong encryption
- Implementation should be proportionate to risk
- Watermarking may be more appropriate than heavy encryption
OER: The Preferred Alternative for Distance Learning
While fair use enables incorporation of copyrighted content, openly licensed OER (particularly CC-BY) is superior for distance learning in several important ways:
Why OER Excels in Distance Learning
1. Legal Certainty:
- No fair use analysis needed
- Explicit permissions clear
- No litigation risk
2. Format Flexibility:
- Can be offered in multiple formats: online, PDF downloads, printed, offline
- COVID-19 demonstrated importance: students need materials accessible without internet
- Fair use-based materials cannot guarantee same format flexibility
3. Indefinite Availability:
- OER can remain available in distance courses indefinitely
- No expiration dates or licensing restrictions
- Fair use and TEACH Act have time limitations
4. Adaptation and Remixing:
- CC-BY materials can be adapted to student populations and contexts
- Distance learning benefits from customization
- Supports “flexible and open pedagogy”
5. Global Accessibility:
- Distance learners may be international
- OER can transcend institutional subscription limits
Quote: “Only a fair use-based approach to incorporating inserts into OER can guarantee that materials in question can be produced and delivered in whatever format students require”. This is why OER foundation (CC-BY) + fair use supplements creates most robust distance learning materials.
Strategy: OER Foundation + Fair Use Supplements
Best Practice for Distance OER:
- Build OER foundation using CC-BY licensed materials (clear permissions)
- Identify pedagogical needs not met by openly licensed materials
- Supplement with copyrighted content under fair use when transformation clear
- Label supplementary content transparently (indicating fair use basis)
- Ensure distance learners can access in multiple formats
Practical Distance Learning Scenarios
Scenario 1: Streaming Films for Film Studies (Online)
Situation: Professor teaching asynchronous online Film Studies course. Course requires watching assigned films for analysis. Physical screenings impossible; students unable to attend campus media center. University library owns DVD copies.
Approach: Upload DVD to university streaming server. Make available through Brightspace to enrolled students only. Films available for course duration; access removed after semester ends.
Four-Factor Fair Use Analysis:
Factor 1—Purpose: Educational; transformative (films viewed for critical analysis, not entertainment)
- Synchronous vs. Asynchronous: irrelevant; fair use applies same
- Time-shifting (watching on own schedule) = transformative
- ✓ Favors fair use
Factor 2—Nature: Creative dramatic works (films)
- Less favorable than factual works
- BUT: Educational context and transformation mitigate
- ✓ Moderately favors fair use
Factor 3—Amount: Entire films
- Complete works used
- Appropriate because entire film = pedagogical unit
- Cannot analyze filmmaking without complete work
- ✓ Favors fair use
Factor 4—Market: No market harm
- Students don’t normally purchase films as course materials
- Universities standardly provide this through library
- Streaming does NOT harm film market; students don’t avoid purchasing due to access
- ✓ Favors fair use
Overall Fair Use Conclusion: LIKELY FAIR USE
Strengthening Factors:
- Password-protected Brightspace (strongest protection)
- Film clips not downloadable; streaming only
- Access limited to enrolled students
- Removed after course ends
- Study questions and analysis prompts embedded in course
- Backgrounds readings on film technique and history provided
- Student discussion forums analyze specific scenes
Important Caveat:
- This exact scenario (UCLA uploading films to streaming server) was subject to lawsuit
- Court dismissed on procedural grounds; no ruling on fair use merits
- BUT: Library and academic associations assert this IS fair use
- UCLA faculty statement affirms: “If it would be lawful to show film in physical classroom, should be fair use to stream to virtual classroom restricted to same students”
Scenario 2: News and Magazine Articles in Online Social Sciences
Situation: Political science professor teaching online International Relations course. Assigns recent news articles from New York Times, Guardian, and other publications for reading and discussion. Posts full text to Brightspace.
Four-Factor Analysis:
Factor 1—Purpose: Educational; transformative (news articles repurposed for analytical study in course context)
- News originally created for current events reporting
- New purpose: teaching international relations concepts
- Transformation through pedagogical context
- ✓ Favors fair use
Factor 2—Nature: Factual work (news articles)
- More amenable to fair use than creative works
- News = factual, not creative
- ✓ Favors fair use
Factor 3—Amount: Full articles
- Complete articles used (not excerpts)
- Arguably more than necessary; could excerpt key passages
- Full articles strengthen copyright holder’s interests
- ✗ Disfavors fair use
Factor 4—Market: Direct market competition
- News publications depend on subscription revenue
- Posting full articles in course competes with publication’s market
- Readers might not subscribe to access articles; use course copies instead
- ✗ Disfavors fair use
Overall Fair Use Conclusion: MIXED/UNCERTAIN
Risks:
- Publications actively protect against unauthorized reproduction
- Market harm significant (direct competition with subscriptions)
- Educational purpose doesn’t clearly outweigh market harm here
Better Alternatives:
- Link rather than post: Create Brightspace links to articles. Students click through to publication site. Ordinarily not copyright violation. Provides attribution, directs traffic to publisher
- Institutional subscriptions: Check whether university library has access through database subscriptions (ProQuest, JSTOR, etc.). Provide access through library databases rather than copying
- Brief excerpts + links: Post first paragraph/key excerpt; link to full article
- Request permission: Publishers often grant permission for educational use without fee
- Open access sources: Seek articles published under CC-BY or open access journals
Scenario 3: Documentary Clips for Media Literacy (Asynchronous)
Situation: Media literacy professor creating asynchronous online course. Unit on media representation includes 4-6 minute clips from three different documentaries plus 2-3 minute news clips. Clips embedded in Brightspace with study questions and discussion prompts.
Four-Factor Analysis:
Factor 1—Purpose: Educational; transformative (documentary/news created for general audience; repurposed for analytical media study)
- Analysis of representation, framing, bias = new pedagogical purpose
- Not reproduced for original entertainment/news purpose
- ✓ Strong fair use
Factor 2—Nature: Documentary and news (factual works)
- Factual content more amenable to fair use than purely creative entertainment
- ✓ Favors fair use
Factor 3—Amount: Brief excerpts (4-6 minutes from longer works)
- Appropriate to demonstrate specific media concepts
- Not entire documentaries; selective excerpts
- ✓ Favors fair use
Factor 4—Market: Limited market harm
- Brief clips do not substitute for viewing complete documentaries
- Students interested in full documentaries still need to view them
- ✓ Favors fair use
Overall Fair Use Conclusion: STRONG FAIR USE
Strengthening Implementation:
- Embed study questions: “What is being emphasized? What is omitted? How does framing influence viewer interpretation?”
- Provide background readings on media literacy concepts
- Include discussion forum prompts requiring critical analysis
- Attribute all sources fully
- Password-protected Brightspace access
- No downloading capability
- Accessible only during course term
Scenario 4: Pre-Recorded Lecture with Embedded Music
Situation: Music appreciation professor creates pre-recorded lecture explaining music theory concepts. Embeds brief musical excerpts (10-15 seconds each) from copyrighted compositions to illustrate concepts: harmony, rhythm, orchestration. Lecture posted to Brightspace; students watch asynchronously.
Four-Factor Analysis:
Factor 1—Purpose: Educational; transformative (music excerpts used to illustrate theoretical concepts, not for entertainment)
- Original purpose: musical composition/performance for listening
- New purpose: pedagogical (teaching music theory)
- ✓ Favors fair use
Factor 2—Nature: Creative musical works
- Music = creative work
- Less favorable than factual works but educational context matters
- ✓ Moderately favors fair use
Factor 3—Amount: Brief excerpts (10-15 seconds)
- Small portions of longer compositions
- Sufficient to demonstrate concept; not enough to enjoy/reproduce music
- ✓ Favors fair use
Factor 4—Market: No market harm
- Brief clips do NOT substitute for purchasing/streaming music
- Students still need licenses/subscriptions to hear complete compositions
- Educational use does not reduce music sales
- ✓ Favors fair use
Overall Fair Use Conclusion: STRONG FAIR USE
Strengthening Factors:
- Brief duration (10-15 seconds, not entire performances)
- Clear pedagogical context (explaining theory, not entertainment)
- Embedded in password-protected course
- No download capability; streaming only
- Attribution of all compositions and composers
- Study materials explaining pedagogical significance
TEACH Act vs. Fair Use: Which to Use?
Quick Comparison:
| Factor | TEACH Act | Fair Use |
|---|---|---|
| Applies to nonprofit institutions | Yes | Yes |
| Applies to for-profit institutions | No | Yes |
| Permits entire films/videos | No (clips only) | Yes (if transformative) |
| Permits digitization of analog works | Yes (if no digital version) | Not explicitly, but fair use analysis possible |
| Time limitation | Yes (remove after course) | No (can retain indefinitely) |
| Marketing/worksheet materials | No | Possibly (if transformative) |
| Works marketed for distance education | No | Possibly (if transformative) |
| Scope | Narrow/specific | Broad/flexible |
| Documentation required | Yes | Recommended (not required) |
General Guidance:
Use TEACH Act If:
- Nonprofit institution meeting all requirements
- Brief excerpts of eligible works
- Can impose access controls
- Want explicit statutory protection
Use Fair Use If:
- For-profit institution
- Need broader scope (entire works, marketed materials)
- Want indefinite availability
- Transformative purpose clear
- Better pedagogical fit
Best Practice: For most distance learning, fair use provides superior flexibility.
Special Considerations: Synchronous vs. Asynchronous
Synchronous (Live) Distance Learning
Definition: Real-time interaction (Zoom, WebEx, live chat, virtual classroom) where instructor and students present simultaneously, though in different locations.
Fair Use Application:
- Fair use analysis identical to in-person classroom
- Same four factors apply
- “Live” meeting happening online = still educational
Examples of Fair Use:
- Professor reading copyrighted poem aloud during Zoom session
- Showing video clip during WebEx to discuss
- Displaying photograph during live presentation
Advantage: Fair use position strong because interaction mimics classroom.
Asynchronous (Self-Paced) Distance Learning
Definition: Self-paced learning where students engage materials on their own schedule (pre-recorded videos, discussion forums, reading materials available 24/7).
Fair Use Application:
- Fair use applies equally to asynchronous
- Same four-factor analysis
Important Consideration: Materials should “time out” after course ends
Examples of Fair Use:
- Pre-recorded lecture with embedded video clips
- Copyrighted images illustrating concepts in course materials
- Documentary excerpts in asynchronous discussion module
Implementation: Post materials on password-protected Brightspace with access disabled after semester.
Hybrid Models
Most distance education combines synchronous and asynchronous elements:
- Some real-time Zoom sessions (synchronous)
- Some self-paced pre-recorded content (asynchronous)
- Same fair use principles apply to both
Practical Implementation Checklist for Distance Learning OER
Before incorporating copyrighted content into distance learning materials, use this checklist:
Step 1: Search for Open Alternatives
- Checked Creative Commons repositories (CC-BY preferred)
- Checked public domain sources
- Evaluated whether CC-licensed alternatives adequate
- Documented search results
Step 2: Assess Fair Use
- Factor 1: Is educational purpose clear? Transformative?
- Factor 2: Is work factual or creative? How does that affect fair use?
- Factor 3: Is amount appropriate to pedagogical purpose?
- Factor 4: Does this compete with copyright holder’s market?
- Documented analysis of all four factors
Step 3: Determine Delivery Method
- Password-protected LMS (strengthen fair use)
- Streaming format if audiovisual (prevent downloading)
- Access limited to enrolled students
- Content disabled after course ends
Step 4: Create Pedagogical Context
- Added study questions requiring critical analysis
- Included background readings or explanatory text
- Embedded discussion prompts or reflection activities
- Made clear why THIS content serves THIS learning objective
Step 5: Document and Label
- Documented fair use analysis (keep records)
- Labeled content indicating fair use basis (if using direct label)
- Provided complete attribution (creator, title, date, source)
- Made transparent to users that material relies on fair use
Step 6: Implement Access Controls
- Password protection (minimum)
- Optional: IP authentication, two-factor auth
- Streaming (not downloadable) if possible
- Time-out after course ends
- Consider watermarking or other technical measures
Conclusion: Fair Use Enables Pedagogically Sound Distance Learning
Fair use, not the TEACH Act, provides the most flexible framework for incorporating copyrighted content into distance learning OER. Because fair use is platform and medium neutral, the same transformative educational uses that support copyright incorporation in in-person classrooms support incorporation in distance learning environments.
By following the four-factor analysis, restricting access to enrolled students through password-protected learning management systems, providing rich pedagogical context, and documenting fair use reasoning, educators can confidently create distance learning OER that serve learners effectively while respecting copyright principles.
The most robust distance learning OER combines CC-BY licensed materials (legal certainty, format flexibility) with strategically incorporated copyrighted content under fair use (pedagogical appropriateness, specificity). This hybrid approach—open foundation + fair use supplements—enables materials robust enough to survive changes in subscription access, technology platforms, and learning modalities, serving learners across contexts: online, offline, asynchronous, synchronous, and blended.