Copyright law applies to nearly all creative and intellectual works, including video and films. However, there are provisions for “fair use” of a copyrighted works as outlined in Section 107 of the U.S. Copyright Act. This provision describes four factors to be considered when determining fair use.
Factor 1: The purpose and character of the use
The fair use statute favors nonprofit, educational purposes over commercial purposes. However, in order to comply with fair use you must consider all four factors, and not simply rely on that fact that you teach at a university.
Related to “the purpose and character of the use,” court rulings favor material that has been “transformed,” not merely reproduced. Fair use is more likely to be applicable when the copyrighted work has been modified into something new or when it can be used for a new purpose. In terms of video course materials, this could include smaller portions of a film that have been edited and/or combined with other media in order to create video content that is specific to the learning objective of your course.
Factor 2: The nature of the copyrighted work
The courts favor the use of materials that have a direct relationship to the educational objectives of your course. You should choose video material carefully; selecting content that can be used by your students to successfully complete the course assignment. It is important to directly align the content you require with the learning outcomes for each assignment. Once you have determined what you want your students to accomplish in order to achieve the learning outcomes, you can determine which piece of content and how much is required to successfully complete the assignment. This concept is known as “backward design” (Wiggins & McTighe “Learning by Design” 1998, 2006). To learn more about backward design, contact the LTC (LTC@uwm.edu).
Factor 3: The amount of the portion used
The amount of the work placed online should relate directly to the educational objectives of the course assignment. In other words, you should ONLY use the section of the video that is necessary for your students to complete the assignment. Any scenes or sections of a film that does not have a direct relationship to the course assignment should be removed before distributing to your students. Capturing and distributing entire films is NOT recommended.
Factor 4: The effect of the use upon the potential market
Essentially, this means that you are more likely to be in violation of fair use if you (or your students) could have realistically purchased or licensed the copyrighted work. In terms of video content, clips or modified materials are less likely to have an adverse market effect. In contrast, by supplying a copy of an entire film for your students, you are negatively impacting potential markets for those works.
In addition, if you distribute videos through a password protected site, like D2L, only the student in your course can view the copyrighted work. If you distribute the video outside of the password protected environment of D2L, for example, as a publicly available video on YouTube, this could have a substantial impact on the market value of the work.
When considering all four factors, it is best to use a short section of a film or TV show which has been chosen to supply students with the information necessary to complete the assignment successfully.