Navigating Copyright within the LMS

Copyright and digital learning can’t be discussed without also speaking of the platform to which such digital content is normally made available to students, –  learning management systems (LMS) A LMS is a web-based application for managing course communication, collaboration, administration, tracking, and reporting.^[1]  A well-functioning LMS is the infrastructure for delivering and managing curriculum, activities and tracking of student progress. For face-to-face and blended courses, it supports dissemination of these materials and activities. For many online courses it is an integral, if not the sole, framework for online teaching and learning activities. Typically, an LMS is a password-protected environment, which permits access to the students enrolled in the course  and access (or lack of) is an important distinction in which we are focused on in this section of the resource.

At an academic institution the use of an LMS would be demonstrated when an instructor creates a course shell, or site for the course(s) they are instructing within the LMS structure. In doing so, the instructor would create a course using original and third party copyright works which would only be accessed by students enrolled in that course.   If the instructor has created the copyright works themselves, they would be able to use freely as they wish, however as so often happens, instructors look outside to third party materials to augment the instruction of their course. So how can you, as an instructor, use third party materials, without necessarily obtaining copyright permission from the owner and also comply with copyright? The exceptions to what would otherwise be copyright infringement in this case are fair dealing and the educational exception in the Copyright Act, R.S., c. C-30, s. 1.

As already mentioned previously, fair dealing is the exception under the Copyright Act that would allow an instructor to use another person’s work without obtaining permission, so long as they pass a two pronged test. The first, that the use has to fall under one of the allowable purposes – research, private study, criticism, review, parody, satire, education and news reporting. The second, is that the dealing is “fair”.  Fair isn’t defined in the Copyright Act and is therefore dealt with on a case-by-case basis, using a six-factor analysis system, as created by the Supreme Court of Canada in a copyright case, CCH Canadian Ltd. v. Law Society of Upper Canada [2004] 1 SCR 339. 

In addition to this, instructors can also rely on the educational exceptions, as mentioned in the Copyright Exceptions section, to post third party copyright works onto LMS.  Regardless of whether if you wish to rely on fair dealing or one of the educational exceptions to post any copyright works on an LMS an instructor would need to put into place the appropriate safeguards whether applying fair dealing or an the educational exceptions.

The following are some best practices when posting materials onto an LMS.

• third party materials must comply with fair dealing or one of the educational institutions exceptions
• unless you have permission from the owner of the third party materials you wish to use, only portions and only as much as necessary for the purpose, should be used
• provide acknowledgment of where the materials came from and who the author(s)/owners are
• when an instructor is unsure about posting third party materials, and if there is nothing that states otherwise, providing a persistent links for students is acceptable
• whether an instructor uses their own materials or third party materials providing a notice on the materials they use is advised.   The following is an example of a notice that can be used by Instructors when posting copyright works to an LMS: The article has been posted for student’s personal use only. This article should not be redistributed, reposted or disseminated, whether via email or any other means.