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Copyright Guidance Staffordshire University

Copyright & Virtual Learning Environments

Yes provide the purpose of placing the clips in the VLE is limited to illustration for instruction and the copying is fair in that it does not negatively impact on the market for the original work then the exception permits the copies of the clips being placed in the VLE. This is s.32 of the Copyright, Designs and Patents Act 1998 (CDPA). The use must be non-commercial and sufficiently acknowledge . Who has access to the VLE is a factor to be considered when assessing whether the use id fair. Restricting access to the learners who are enrolled on the particular course will support the contention that use is fair./span>

Fair dealing is a legal term used to establish whether a use of copyright material is lawful or whether it infringes copyright.  There is no statutory definition of fair dealing - it will always be a matter of fact, degree and impression in each case.  Fair dealing requires a judgement to be made.  Every instance of copying is different and where the use would not adversely affect sales of the work and where the amount copied is reasonable and appropriate to the context then it is likely that it can be considered fair dealing.  

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Section 32 CDPA now covers all works and copying is no longer restricted to being done by hand therefore there is no reason lecture capture technology cannot be used to record a lecture which includes third party material provide the original work is sufficiently acknowledged and the recording is fair. In order to be fair the material must be included in the lecture and the lecture recorded to illustrate a teaching point. Only so much of the copyright work can be used as is necessary for illustration for instruction and the use not adversely affect the rights holder's ability to exploit their work. Providing access to the recorded lecture via a password protected VLE only to those students and staff requiring access for the purpose of instruction is more likely to be fair than a recording made available openly online.
Provided the use is fair dealing in that it does not negatively impact on the market for the original work and the purpose is illustration for instruction then there is no restriction on the type of learning environment or technology that can be used. Provided the purpose of placing the work in the VLE is limited to illustration for instruction and the copying is fair then there is no reason the copy could not be placed in the VLE. Restricting access to the learners who are enrolled on the particular course will support the contention that the use is fair.
Provided the purpose of placing the images in the VLE is for illustration for instruction and the copying is fair in that it does not negatively impact on the market for the original materials then the images could be placed in the VLE. The use needs to be fair dealing and this requires a judgement to be made. Every case is different and where the amount copied is reasonable and appropriate to the context then it is likely that it can be considered fair dealing. Fair dealing with images presents special problems. It is arguable that using low resolution versions of the images and limiting access to the learners enrolled on the particular course, for the duration of the course, will support the contention that the use is fair.

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Under s.36 CDPA it is possible to put an extract from a copyright work within the secure VLE for access by students and staff provided the purpose is limited to instruction for a non-commercial purpose and within the extent limits. However, s.36 only applies where there is no licence available for the work which the institution should have known about so where a work is covered by the CLA licence universities and colleges will still be required to hold a CLA licence for copying. In contrast, fair dealing with a copyright work for the purpose of instruction cannot be overridden by contract so if the extent of the copying can be justified as fair dealing under s.32 CDPA then a copy can be made available in the VLE without the need to rely on the CLA licence. There will be a judgement to make as to whether copying one whole article from a journal constitutes fair dealing.
Provided the purpose of placing the work in the VLE is limited to illustration for instruction and the copying is fair in that it does not negatively impact on the market for the original work then there is no reason the copy cannot be placed in the VLE under s.32 CDPA. The audience which has access to the VLE would be a factor considered in assessing fairness. If the copying cannot be considered fair dealing because it impacts on the rightsholder’s ability to commerciality exploit their work or the amount copied exceeds what would be fair then the institution would have to fall back on their CLA licence to copy materials and place them in the VLE and would have to reference the CLA licence accordingly. Works (other than broadcasts or standalone artistic works) not subject to the CLA or another licence could be copied and incorporated in the VLE under s.36 CDPA provided the amount copied by an educational establishment does not exceed the limit of 5% of a work in any period of twelve months.
If the CLA licence excludes a work then a chapter could be added to the VLE under s.36 (copying of extracts by an educational establishment) provided there is no other licence available for the work, copying a chapter does not exceed the extent limits of 5% of a work in any period of 12 months and the purpose of copying and making the chapter available in the VLE is limited to instruction for a non-commercial purpose. Access can only be given to staff and students of the college or university and the original work must be sufficiently acknowledged. In order to add a chapter to the VLE under fair dealing for the purpose of illustration for instruction (s.32 CDPA) a judgement would need to be made as to whether copying a whole chapter and adding it to the VLE is fair. An assessment would need to be made as to the length and importance of the extract, whether the amount copied was limited to what is required to illustrate a teaching point and the impact on the rightsholder’s ability to commercially exploit the work.

PDFs of articles in Blackboard Modules 
We are aware that colleagues may download PDFs of articles in our current subscribed resources to improve the ease of access for their students. It is possible to do this as long as, the journal is not on the CLA's excluded list, which you can check with their permissions tool , there is an accompanying copyright statement and we notify the CLA. We are aware that this is a considerable overhead and our Course Pack Team shortloans@staffs.ac.uk is happy to do this, there will be no cost if we subscribe to the resource. The alternative would be for you to give a permanent link to the article. You should also contact the Course Pack team if you want to include a digitised chapter of a book we have in stock. If we have an eversion of a book you can link to the catalogue record or the book itself