How Instructors and Higher Education Institutions Can Avoid Copyright Litigation
Higher education environments are high-risk for infringement because they involve reproduction, distribution, streaming, scanning, and uploading materials.
Below are practical compliance strategies:
1. Understand and Apply Fair Use (U.S.) or Fair Dealing (Other Jurisdictions)
In the U.S., fair use considers four factors:
Purpose and character (nonprofit educational use weighs in favor)
Nature of the work
Amount used
Effect on the market
Best practice:
Use only what is necessary, avoid substituting for textbooks, and document your fair use analysis when in doubt.
2. Use Licensed Materials
Rely on institutional subscriptions (library databases, journal access, streaming licenses).
Confirm that LMS uploads are covered by license terms.
Review vendor agreements carefully.
Institutions should maintain a centralized copyright clearance office or librarian oversight system.
3. Link Rather Than Copy
Instead of uploading PDFs of articles:
Link directly to licensed databases
Link to lawful public websites
Use persistent URLs from the university library
Linking significantly reduces infringement risk.
4. Use Open Educational Resources (OER)
Use materials under:
Creative Commons licenses
Open textbooks
Public domain materials
Creative Commons licenses are standardized permissions provided by the nonprofit Creative Commons.
5. Seek Permission When Necessary
If:
Using large excerpts
Reproducing entire works
Posting materials repeatedly
Using materials for commercial programs
Then obtain written permission or pay licensing fees (e.g., through collective rights organizations).
6. Develop Institutional Copyright Policies
Institutions should:
Maintain clear copyright compliance policies
Provide faculty training
Conduct regular audits of LMS materials
Designate a copyright compliance officer
Maintain takedown procedures
In the U.S., institutions should comply with the safe harbor provisions of the Digital Millennium Copyright Act (DMCA), including:
Having a registered DMCA agent
Responding promptly to takedown notices
Adopting repeat infringer policies
7. Be Careful with Coursepacks and Scanning
Courts have ruled against universities for systematic copying without licenses (e.g., electronic reserves cases). Repeated, large-scale copying—even for educational purposes—can weigh against fair use.
Best practice:
Avoid compiling unpaid digital coursepacks.
Use licensed excerpts or seek permission.
8. Address Student and Online Course Risks
For online teaching:
Use secure LMS platforms with access restricted to enrolled students.
Avoid posting copyrighted videos publicly.
Ensure recorded lectures do not embed unlicensed full-length works.
For MOOCs or publicly accessible courses, fair use is narrower due to broader distribution.
9. Keep Documentation
Maintain:
Fair use analyses
Permission records
Licensing agreements
Copyright training logs
Documentation helps demonstrate good-faith compliance and reduce statutory damages.
Institutional Risk Management Framework
Higher education institutions should adopt a three-layer approach:
1. Education
Mandatory faculty training on copyright and fair use.
2. Infrastructure
Library-managed reserves, license tracking systems, and compliance review.
3. Enforcement
Clear reporting mechanisms and DMCA response systems.
Common Litigation Triggers to Avoid
Uploading entire textbooks to LMS
Distributing scanned journal compilations
Streaming full films without license
Ignoring takedown notices
Repeated systematic copying semester after semester
Bottom Line
Copyright law balances creator rights with educational access. Instructors and institutions can significantly reduce litigation risk by:
Applying fair use carefully
Using licensed or open materials
Linking rather than copying
Documenting decisions
Implementing strong institutional compliance systems
