Coronavirus & Copyright: Unique Copyright Considerations in a Socially Distanced World

Coronavirus & Copyright: Unique Copyright Considerations in a Socially Distanced World

May 4, 2020, Covington Alert

As we continue to socially distance ourselves in light of the COVID-19 pandemic, we’re sharing copyrighted works in new ways and with increasing frequency. And while copyright probably isn’t the first thing on people’s minds as we navigate this “new normal,” these rapid changes in how we interact can raise a number of concerns about how copyrighted materials are being used and whether we may be unknowingly infringing the rights of content creators. In this alert, we draw attention to a few coronavirus-related copyright concerns that you might not have on your radar, and we offer some best practices for businesses, educators, and individuals as they use copyrighted works in this socially distanced world.

Videoconferencing—Infringements in the Background

Although we are all sequestered in our own homes, we are getting an unprecedented look into the home offices and living rooms of friends and co-workers as we engage in virtual meetings via platforms like Skype and Zoom. And while most of us are worried about cleaning up the clutter and making sure the dog doesn’t make a surprise guest appearance mid-call, few are probably rushing to take down the copyrighted posters and art pieces that may appear in the background of the shot. Remember, however, that transmitting a copyrighted work by video, even accidentally in a web conference, can constitute infringement.

Though nearly all of these types of infringements are unlikely to result in enforcement, a single view by the wrong person could lead to possible legal action and significant costs. Take a look around your workspace and determine whether there are any copyrighted works that are prominently featured and that you should avoid including in video calls. And for businesses, educate your employees to do the same to avoid any risk of accidental infringement. The real risk, albeit small, is a copyright holder who sues a large business over its employees’ display of copyrighted works—or playing of music—during work calls.

Virtual Classrooms—Special Rules for Remote Learning

Back in “the before times,” when kids left the house to go to school, teachers would often share a variety of copyrighted works with their students in the classroom. Copyright laws protect teachers who bring books, plays, sheet music, and other works into their physical classrooms, but they do not always offer the same protections in virtual classrooms. While one law, the TEACH Act, allows teachers to continue to use these copyrighted materials for remote teaching, this law also places a number of restrictions on how teachers can use these materials. For example, teachers must not use more of a work in an online lesson than they would in a physical classroom, and they must take steps to prevent students from sharing copyrighted materials or using them for purposes unrelated to learning. Schools and universities must be sure to educate their teachers and professors on how to comply with these rules, as what may be acceptable for in-person instruction may not be permissible under the TEACH Act.

Best Practices—A Checklist for Businesses, Educators, and Individuals

These two examples are certainly not the only ways that copyright issues may arise unexpectedly as we transition to working, learning, and socializing from home. Use the below checklist to help identify other potential areas of concern. Many copyright issues, especially those involving fair use, require analysis of the specific factual situation at hand, so we encourage you to contact a copyright lawyer, such as one of Covington’s professionals, if you have any concerns about whether you or your organization need to take additional steps to ensure copyright compliance in this uncertain time.

• Do you use web conferencing?
  • Employers and Businesses: If yes, do your employees have guidelines as to the use of copyrighted materials in conferences (works in the background, use of music, use of unlicensed works in virtual backdrops, etc.)?
  • Educators: If yes, do you have guidelines for both teachers and students for what materials may be used in video meetings pursuant to the TEACH Act?
  • Individuals: If yes, are you sharing any copyrighted works in your video calls? Are you licensed to do so? If not, try to avoid sharing such works.
• Are you offering services virtually that you ordinarily would offer in-person?
  • Businesses (for example, gyms streaming workout programs): If yes, do you have a license to use the music and other works that appear in these broadcasts?
  • Organizations (e.g.: churches offering remote services): If yes, do you have a license to use the music and other works that appear in these broadcasts, or would the use of these materials be considered a “fair use”?
  • Educators: Are you complying with the requirements of the TEACH Act to ensure that your uses do not constitute infringements? This includes not sharing more of a work than you would for in-person instruction and restricting who may access these materials.
  • Individuals (e.g.: individual tutors or private trainers): Many of the same considerations for businesses apply - do you have a license to use the music or other works that appear in your broadcasts? For individuals like tutors who are offering an educational service, would your use qualify as a “fair use” under copyright law?
• Are you sharing or using copyrighted materials in response to the coronavirus pandemic in a way that you ordinarily would not?
  • Businesses (e.g.: hospitals sharing manuals or software related to medical devices used to treat coronavirus): If yes, are you licensed to share or use these copyrighted materials, or would your sharing or use be considered a “fair use”?
  • Educators: Would your use of the materials be considered a “fair use”? Remember, typically only works that are typically used for in-person instruction can be used for remote learning under the TEACH Act.
  • Individuals: Do you have a license to use or share the copyrighted material? Remember that pirated copies of movies, music, and video games infringe the creator’s rights in the works. Creating and sharing unlicensed copies can lead to significant legal consequences.

If you have any questions concerning the material discussed in this client alert, please contact the members of our Copyright and Trademark Litigation practice below.