Blackbeard, Copyright Fair Use, and the COVID-19 Crisis

Student taking part in remote classroom instruction on laptop computer

ARRRRRR!! There was an important US Supreme Court case Allen vs. Cooper (no. 18-877) decided on March 23, 2020. It struck down the Copyright Remedy Clarification Act (CRCA) which allowed copyright owners to sue States for copyright infringement (using another’s work without their permission).

Blackbeard’s Law

The Allen case centered around a videographer, Frederick Allen, who documented a private salvaging company’s effort to procure artifacts from the wreckage of Queen Anne’s Revenge, the ship that belonged to the infamous pirate, Blackbeard. The state of North Carolina twice used Allen’s copyrighted videos without his permission. The first go-around, North Carolina settled with Allen for $15,000 and took down the videos. The second time, North Carolina enacted “Blackbeard’s” law which made all documentary materials of a derelict ship/shipwreck and its artifacts property of the State of North Carolina as a public record (talk about legal piracy!!) Allen sued North Carolina under the CRCA, while North Carolina claimed sovereign immunity under the Eleventh Amendment. The US Supreme Court held that Congress lacked authority to abrogate the States’ immunity from copyright infringement suits in the CRCA. Basically, the CRCA is unconstitutional for failing the “congruence and proportionality” test. As of now, States cannot be sued for damages for copyright infringement, though injunctive relief is still an option for copyright holders.

Fair Use Doctrine

So, what does this have to do with the COVID-19 crisis? Because of mandatory stay at home orders issued by many localities or by entire States, educational institutions have had to become fully functional online learning facilities. Normally, when an educational institution (or their educators) provides (physically or digitally) learning material for which they don’t have a license, they are allowed to do so under the Fair Use doctrine. Fair Use allows for the use of another’s copyrighted work without their permission when it is used for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research (17 U.S. Code § 107).

Fair Use determination is decided on a case-by-case basis utilizing a four-factor analysis:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

Remote Learning Considerations and Fair Use

So, for example under normal circumstances, if an educator wants to supplement their teaching with an article from an unlicensed journal or a chapter from an alternative textbook, generally speaking, the educator is allowed to provide their students with this material under Fair Use. As long as they only provide the material necessary to cover the topic (not the entire journal/textbook) and only the number of copies necessary.

However, in this new COVID-19 age of remote learning, the Fair Use analysis will most likely be expanded to cover all materials being transferred over to the remote learning platforms that educational institutions are now required to use to facilitate their teaching missions during this crisis. Many students do not have access to their textbooks at this time because they were left at school or in their dorm rooms when the shutdowns were initiated. Educators are now providing digital copies of the materials they would have previously distributed to students in hard copy; potentially without an explicit license to do so.

Even in this COVID-19 crisis, educators should keep the Fair Use factors in mind and not go hog wild in providing unlicensed material. Only the materials necessary for teaching their lessons should be provided. However, as many educational institutions are part of a State’s system of education, the Allen case now provides some extra risk mitigation because they are under a State’s sovereign immunity with regards to copyright infringement. But even though State educational institutions can’t be sued for damages, they still can be subjected to injunctions and ordered to stop providing unlicensed materials. ARRRRRR!

Author:
Kathleen Kuznick assists business owners, entrepreneurs and inventors with all things related to intellectual property and brand protection, including patents, trademarks, copyrights and licensing. She can be reached via email at Kathleen Kuznicki or (724) 776-8000.
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