Q. I am an instructor or faculty member who would like to embed scholarly articles within Blackboard for students to download as part of their coursework. Is this fair use, or do I need permission before I post them in Blackboard?

To begin to answer this question, we recommend you look closely at the best practices for the TEACH Act to determine if this exemption might apply to your situation. TEACH allows for the posting of scholarly materials, including articles and book chapters, in an online classroom environment if the amount used is comparable to what would be used in an in-person classroom setting. The Exceptions for Instructors tool from the Copyright Advisory Network will walk you through each of the requirements of TEACH and help you decide if your intended use is covered.

If you determine that your use is not covered by TEACH, we recommend that you carefully consider the four factors of Fair Use to determine whether the download and posting of these documents would be fair. The Fair Use Evaluator from the Copyright Advisory Network can walk you through the process of a fair use evaluation and will provide you with a printed report of your analysis to keep for your records. You can also consult the Copyright & Fair Use guide from Stanford University for more detailed information about each of the four factors.

In regards to posting book chapters specifically, unfortunately, there is no hard and fast rule regarding how much can be posted from a given source. For use in Blackboard, as part of assigned coursework, posting chapters would be allowed by Section 110 of the Copyright Act as long as the amount posted is no more than would be typical to display in the course of a live classroom setting. Depending on the length of the chapters, two may or may not be within that scope. Furthermore, amounts beyond what could be used in the physical classroom could be posted under fair use, depending on the length of the chapters, the overall length of the work, and the contents of the chapters, taken into consideration with the other factors of fair use. Again, we encourage you to consider using course reserves. Once you place a request for an item to be added to Blackboard, library staff will perform a copyright analysis to ensure materials are in compliance with the law, and will even pay licensing fees when the amount needed exceeds what the law would typically allow.

In regards to permissions, if you believe that your use is covered by the TEACH act or is a fair use, then you do not need to seek permission to post the works as PDFs. If, however, you decide that your use is not fair, or that you would prefer to seek permission before posting, you have three courses of action to choose from. They are, in no particular order:

1.              Link to the content, either on the web or in library course reserves.

2.              Pay for permission to post via the Copyright Clearance Center.

3.              Contact the journals directly to seek formal permission

Unfortunately, there are few clear answers in copyright law. Ultimately, your decision to rely upon TEACH, fair use, or to seek permission from the publishers will depend upon your personal and professional level of risk tolerance (as well as any departmental or University guidelines).