Copyright & bCourses for Course Instructors: Answering the Workflow Questions

This guide helps instructors determine whether copyrighted content can be posted to bCourse sites.

Answering the Workflow Questions

Has a license or permission already been provided?

Sometimes authors expressly provide permission for republication of their copyrighted materials through grants such as Creative Commons licenses.  A Creative Commons license allows you to make certain specified uses of a copyrighted work without asking for prior permission; the license, itself, will identify the terms of what uses can be made, and what attributions must be provided.

In other instances, authors or copyright holders have granted permission for particular instructors to post or circulate copyrighted materials.  If a copyright holder has provided you with written permission to post his or her work on your course site, you should retain the written conveyances for record-keeping purposes.

If you do not currently have permission from the rights holder but would like to obtain a license or permission, you can send the copyright holder a written request to post content.  The University of Michigan has sample request letters on its Requesting Permission page.  Commercial services like the Copyright Clearance Center can also assist with obtaining licenses for a fee, which may be helpful in instances in which it is difficult to determine who the rights holder is.

Is the work in the public domain?

Just because material is online does not mean it is in the "public domain."  Public domain refers to works for which copyright protections have expired, or that were ineligible for copyright protection from the start.  Public domain works can be posted to course sites without permission or paying royalties.  

To determine whether a work has entered the public domain due to expiration of copyright:

In addition, certain types of work are generally ineligible for U.S. copyright protection, as they are also considered to be in the public domain:

  • Ideas and facts*
  • U.S. government works (although state government works may be protected, as may works funded but not produced by the federal government)
  • Scientific principles, theorems, formulae, and natural laws
  • Scientific and other research methodologies, statistical techniques, and educational processes
  • Laws, regulations, judicial opinions, and legislative reports
  • Words, names, numbers, symbols, signs, rules of grammar and diction, and punctuation

*Note, however, that while copyright law does not protect facts, an author's original compilation, arrangement, or selection of facts may be protected.  In other words, factual compilations may be protected even where the facts, themselves, are not. 

Is posting this content fair use?

Fair use allows limited copying of copyrighted works without having to seek the author/owner's permission, when use is for purposes such as teaching, research, scholarship, reporting, criticism, or parody.  

The instructor’s evaluation of fair use is on a case-by-case basis for each work to be posted, and rests on the following four factors.  When considering these factors, keep in mind that the fair use exception is purposefully broad and flexible to promote academic freedom, expression, education, and debate.

  • The purpose and character of the use, including whether the intended use is commercial vs. for nonprofit educational purposes.  Tip:  Uses in nonprofit educational institutions are more likely to be fair use than works used for commercial purposes.
  • The nature of the copyrighted work.  Tip:  Posting a factual work is more likely to be fair use than uploading a creative, artistic work such as a musical composition.
  • The amount and significance of the portion used in relation to the entire work.  Tip:  Uploading smaller portions of a work is more likely to be fair use than larger portions.
  • The effect of the use upon the potential market for or value of the original.  Tip:  Uses which have no or little market impact on the copyrighted work are more likely to be fair.

The following questions can help you weigh the outcome of those four factors:

  • Are you planning on using the work in a different way, or for a different purpose, than the original creator?  In copyright terms, is your use “transformative”?
  • Are you using an amount of that work that is narrowly-tailored to your new purpose?

The UC's Copyright in the Classroom guide suggests that for posting to course sites, adhering to the following guidelines when posting lends toward a finding of fair use (though fair use is not guaranteed):

  • There is a clear connection between the work being copied/posted and the instructor's pedagogical purpose
  • The amount copied is tailored to include only what is appropriate for the instructor's specific educational goals
  • The access to works distributed online is provided only for the duration of the course for which they are provided, and limited to students enrolled in a course and other appropriate individuals (e.g. teaching assistants for the course)
  • The uploaded content includes full attribution in a form satisfactory to scholars in that field

Want more help evaluating fair use?  Use the American Library Association's Fair Use Evaluation Tool.

Is posting subject to another statutory exception, like the TEACH Act?

The TEACH Act of 2002 expanded certain statutory exemptions of copyright law to accommodate distance education.  Much like the fair use exception (set forth in 17 USC § 107), the TEACH Act (codified in 17 USC §§ 110(2), et seq.) thus provides another means under which the copyrighted work, itself, rather than a link, can be uploaded to bCourses without first seeking the copyright holder's permission.  

In many cases, 17 USC § 107 (fair use) may provide a broader exception under which to post desired course content than the TEACH Act.  Nevertheless, it is important to understand what the TEACH Act can cover:

  • Performance of an entire nondramatic literary or musical work (such as the recorded reading of a poem or novel)
  • Performance of a limited and reasonable portion of any other work (such as a scene from a film)
  • Display of any work in an amount comparable to what would be used during a physical class setting (such as the portion of a film you would show in class, or the portion of a book chapter students would be asked to read in class)

To rely on the TEACH Act to post the above materials, the following parameters must be satisfied: 

  • The instructor supervises students' use of the materials
  • The material is integral to the class session
  • The material is directly related to and of material assistance to teaching course content
  • The material is provided as a "mediated instructional activity" (i.e. provide the same type of material an instructor would use as part of a live classroom session)  
  • The materials are accessible and and retained only for the length of a "class session"
  • The materials are not marketed as part of online instructional activities (i.e. they are not commercially-available digital educational materials)
  • The materials were not unlawfully copied (i.e. the instructor did not "know or have reason to believe" that they were not lawfully made and acquired)

For a more fulsome explanation of the numerous conditions and requirements fo complying with TEACH Act terms, visit:

Contact the Library

While the Library cannot make copyright and fair use decisions for you, we are available to consult with instructors and program coordinators as you consider course content issues in greater detail.  

With questions or to schedule a consultation, please e-mail the Scholarly Communication Officer, Rachael Samberg, at rsamberg@berkeley.edu.