Copyright Questions of the Month. Scanning Textbooks into Online Courses

Q: Our campus uses Canvas. Each classroom has a classroom set of physical textbooks. Does scanning chapters of the textbook and putting them on Canvas violate copyright? Students no longer pay textbook fees on the textbooks because of the age of the textbooks.

A: For readers who are unfamiliar with Canvas, it is a Google course management tool that allows teachers and students to interact in an online environment friendly to Google Apps for Education. The answer to your question will be found in section 110(2) of the Copyright Act. This section of the Copyright Act is known as the Technology, Education, and Copyright Harmonization Act of 2002, better known as the TEACH Act.

Section 110(2) provides limited permission to nonprofit educational institutions (among others) to use “reasonable and limited” portions of various materials in a transmitted course. Nevertheless, that limited permission is withdrawn if the school had “reason to believe” that the copy being used was “not lawfully made and acquired.” So the critical analysis will be to determine if the use is either licensed in some way, or authorized under some exception to the Copyright Act. Another exception eliminates use of a work under the exceptions in the TEACH Act when a work is “produced or marketed primarily for . . . mediated instructional activities transmitted via digital networks.” So if the publisher sells a digital version of this textbook for use in online courses, you have no exemption from licensing the content for use in your Canvas classes.

Assuming the publisher does not sell this particular textbook in a digital version for online courses, you could look to the Act for what statutory uses might be available without going through the publisher for explicit permission. Putting a scanned copy of a book or part of a book in an online course is a “display” under the Copyright Act. 17 U.S.C.A. § 101. A display of a work “in an amount comparable to that which is typically displayed in the course of a live classroom session” is permissible for an online class if the display is made at the direction or under actual supervision of an instructor as “an integral part of a class session.” 17 U.S.C.A. § 110(2)(A). There are additional considerations that come into play such as the access to the materials must be restricted so that those not enrolled in the course cannot access the material and the school must have copyright compliance policies in place and must instruct teachers and students in copyright responsibilities.

But most important to your question is a small paragraph near the end of this section in which the statute says that the exceptions in section 110(2) do NOT apply to use in more than one class session of a course “textbooks, course packs, or other material in any media, copies…of which are…typically purchased or acquired for elementary and secondary students for their possession and independent use.” This sentence seems to foreclose your scanning of textbooks without explicit permission from the publisher or purchase of some license to scan the parts of the work you wish to assign to the students to read. A small, one-time excerpt is probably covered under the sections above, but large chunks of the work assigned as reading material are likely not excepted under the TEACH Act.

The good news is that many publishers, acknowledging the flipped classroom model and other innovative online instructional techniques, are offering digital copies of textbooks to schools as part of materials bundles. Investigate your publisher to see if that might be available to you for an extra fee. The fact that these materials are online makes the school vulnerable to discovery, and a copyright infringement is not the type of PR that will give the public and parents confidence in the school’s decision-making abilities.

This column is designed to provide accurate and authoritative information regarding application of copyright law in schools. Nothing in this column is intended to constitute legal advice, and nothing herein should be considered legal advice. If legal advice is required, the reader should consult a licensed attorney in his or her own state. Neither ABC-CLIO, LLC, nor the author makes any warranties or representations concerning the information contained in this column or the use to which it is put.