Recently, we received a question from a reader about copyright infringement rules as it applies to online course creation. The reader is considering creating a Udemy course but wants to base the outline, structure, examples and flow of content on a known textbook.
The reader said that it would be obvious that the course was based on this textbook. He asked if we had experience with other instructors on the issue of copyright infringement.
The simple answer is “no”. However, we consider this to be a very worthy topic of discussion. Any online course creator could (and probably has) unwittingly infringed on copyrighted material, simply by using examples, videos, images, and other content lifted from the internet or other paper-based resources.
In this article we bring together an overview of copyright infringement as it relates to online course creation. We also touch on plagiarism, which is related to copyright infringement, because what the reader is implying above is that he might use/copy someone’s ideas or works and present them as his own for commercial gain. That’s plagiarism by the way.
It’s important to note that while copyright law does allow some exceptions for instructors at educational institutions to use copyrighted material while providing face to face instruction, these exceptions do not apply to MOOCs like Udemy. Owners of copyrighted content who discover their material being used without permission on a MOOC course may file a copyright infringement claim with the MOOC service provider.
The online course platform will then take down the course promptly to comply with the Digital Millennium Copyright Act which protects the online course platform from copyright infringement liability if it follows the procedures outlined in the Act.
Note: The information that follows is not legal advice or a substitute for it. It is based on US copyright law.
What is a copyright?
Copyright laws protect creators of content from having their work reproduced or used without their express permission. Copyright law is actually a grouping of “rights” given to the content creator for a limited time period that allows them generally to:
- Reproduce the work
- Create derivatives of the work
- Sell or transfer ownership of the work
- Perform or display the work publicly
A copyright typically lasts for the lifetime of the creator plus another 70 years. After that the work enters the “public domain”. For example, Jane Austen’s Pride and Prejudice is now in the public domain. So someone created a book called Pride and Prejudice and Zombies, in which the author takes the exact words of the original Pride and Prejudice book and weaves in a subplot about a zombie apocalypse.
Other works considered to be public domain include:
- Ideas, theories, concepts
- Procedures, methods, processes
- Titles, names, short phrases and slogans, lists of ingredients, common symbols
- Works consisting entirely of information that is common property and containing no original authorship (e.g. standard calendars, tables taken from public documents)
- Works of the government
Can course creators use content that has a copyright?
Yes and no. If, like our reader, you want to use material that someone has produced you need to get their permission – unless it is an “open-licensed” material (more on that later) or it meets the “fair standard” requirements.
Before you decide to simply not create a course (as our reader was doing), it’s worth understanding the options you have for incorporating copyrighted material into your course. Two of these are what’s known as the “Fair Use Standard” and “Creative Commons” open licenses.
1. Fair Use Standard
The 1976 revision of the US Copyright Act treats “fair use” as a defense strategy against a claim of copyright infringement. When you use someone else’s content or materials, you must apply the fair use standard to try and determine if you are infringing upon copyright.
Under fair use, original content can be copied (in full or part) and used by others without the creator’s permission provided that the use of the content is done in a way that’s not unduly “unfair” to the original creator.
Under the fair use standard the case for the fair use of original content has to be made using established standards to determine the fair use of copyrighted educational resources (such as a textbook).
Generally speaking, the standard of fair use is that any copying of copyrighted material is done for a limited purpose, such as to critique or comment on it, or to parody it. These kinds of simple use cases can be done without permission from the copyright owner.
How do you know if your intended use of copyrighted material meets the fair use standard? The “PANE” framework outlined below can help you to consider the material you are incorporating into your online course in light of meeting the “fair use” standard.
You can align the purpose of the material you are using in your online course to be criticism, commentary, news reporting, research or similar reasons. Still, you should also check the applicable terms of usage and prohibited uses of any copyrighted material. If terms and conditions do not allow commercial use or copying of the material then your only choice is to link back to the material within your online course.
Brief excerpts of works and links to works are generally fair use. If the amount of material you intend to use or copy is the core of the piece of work or a substantial piece of it, it is likely not a fair use of the copyrighted material.
Data and fact-based content is more likely to be fair use. For larger pieces of content you should summarize portions of it, using quotations and citations where necessary. If you are copying material that is highly creative or original in nature it will likely not meet fair use criteria.
Ask yourself if your use of the copyrighted material will deprive the creator of revenue from their work or alter their ability to benefit from it in any way? For example, if you are creating a course based on someone’s Kindle books, could your course be a substitute for the book? If so, then you are likely hindering the author’s ability to make money.
2. Creative Commons
Creative Commons is an organization that is dedicated to providing open-licensed original material to the public, but with attached conditions. The main condition for all creative commons licensed works is that the user of the content must give credit to the creator and link the source to it.
Creative Commons aims to give every content creator a free, simple, and standardized way to grant copyright permissions for their works, to ensure proper attribution and to allow others to copy, distribute, and make use of their works.
So for example, if a work licensed by creative commons is dubbed “BY-NC” content, you can use it in your course if you provide credit to the creator and if the purpose is non-commercial (not the case with a Udemy course).
Creative commons provides a host of other legal and technical tools (like a search engine) that facilitate the discovery of creative works that you could use in your online course.
3. Getting permission
In cases where fair use does not apply, you can try to get permission and/or purchase a license to use the materials. When you contact the copyright owner, clearly explain your purpose. Identify the specific rights you need, i.e. commercial use, using excerpts in a MOOC course. Make sure when you get permission to explicitly ask for permission to use the content for online learning and ask if the online content can be modified.
After that negotiate payment and get permission to do exactly what you want to do in writing.
It’s worth emphasizing that it’s not always easy to get in touch with the owner of copyrighted materials and get permission. Allow some time for this process.
Where Can You Get Teaching and Learning Material that is Not Copyrighted?
Educational Content Sources
In recent years, a growing number of teaching and learning materials including textbooks, videos and lectures has been created and released for public use at no cost and without requiring permission from the creator. These resources are called Open Educational Resources or “OER”.
You can find a library of OERs at OER Commons.
We all use images in presentations and blogs. So much so that we take for granted the lack of permissions. However, if your online course is going around the world, you risk someone getting irked that you are using their cartoon and profiting from it.
It’s worth knowing the “correct” way to get images. These sites provide copyright-free images:
If all else fails you can use the license filter on Google images.
Copyright Infringement and Plagiarism
Plagiarism is the blatant act of presenting someone else’s work as your own without citing the creator. Unlike copyright infringement, plagiarism isn’t a legal issue, but rather an ethical one that is highly frowned upon in educational circles.
That said, often an act of plagiarism is also a copyright infringement. The Venn diagram below shows the relationship between copyright infringement and plagiarism and where they overlap.
By the standards above, using the exact material, order and structure of chapters, examples, or even paraphrasing from a textbook for an entire online course – even while citing the source – likely neither meets the fair use standard for copyright infringement and constitutes plagiarism. Sorry reader.
The Bottom Line
While it might be tempting to take your favorite book from which you have learned a tremendous amount and which perhaps has allowed you to undergo a personal transformation, and then create a course to share with the world, think twice about doing this. You have to consider if you can use that resource in a legal and ethical way.
Straight from Udemy, here’s the answer:
If you think that the material that
you are using might be infringing upon somebody else’s idea or content, we
would suggest not including it in your course. The easiest way to check
whether it is ok for you to use somebody else’s content in your course is to
contact them directly and ask for their permission.
Ultimately, Udemy cannot advise on any copyright issue and takes no responsibility for the material that you place on our platform. Remember that you retain the rights to all of the content that you place on Udemy and that we are simply the platform through which you deliver that material.
We applaud our reader for recognizing that they are tempted to incorporate someone’s material into their online course but asked themselves – “Am I allowed to use this?”. We encourage you to do the same. Despite how freely content is shared on the Internet, taking someone else’s work might be an infringement of copyright. The surest protection for using someone else’s work is to ask the copyright holder for permission to use his or her work in your online course.