- Updated: March 17, 2024
Introduction
This week, I’m expanding on a post from a few weeks ago about copyright and fair use. I’ve seen several questions lately along the lines of, “Can I use a YouTube video in my course?”
Answering the question from a copyright compliance perspective, the short answer is the consultant’s go-to answer for everything: It depends.
Read on for the longer answer.
As a disclaimer, I am not an attorney, and this post is not legal advice. My perspective comes from many years of experience as an instructional designer, often working with federal government agencies that are sticklers for copyright law. For one multiple-year contract, I served on the copyright committee for a federal training center, and the agency’s legal counsel advised us on matters like this. In addition, the information in this post refers to U.S. copyright law only.
YouTube Terms of Service
When someone asks the question, “Can I use a YouTube video?” invariably someone gives an answer like one of these:
- Yes, as long as you don’t download the video and edit it. (This is partially correct.)
- Yes, if you get permission from the owner of the video. (Also partially correct.)
- Yes, because it’s publicly available so it’s in the public domain. (WRONG!)
The first two answers get partial credit, but the third is wronger than pickles on pizza. (Although honestly, they don’t look terrible on this cheeseburger pizza.)
Copyright considerations for YouTube videos have two layers. There are rights that belong to the video creator, and other rights that belong to YouTube.
I’m always amazed at how many people answer without mentioning YouTube’s terms of service. If you’re wondering about usage rights, you have to start there.
We’re going to look at two sections that identify the rights and restrictions that apply to YouTube users (us).
Usage License
When people upload videos to YouTube, they agree to extend certain rights to us for using their videos.
To find those rights, let’s look at the “License to Other Users” section of the Terms of Service, under “Your Content and Conduct.”
You also grant each other user of the Service a worldwide, non-exclusive, royalty-free license to access your Content through the Service, and to use that Content, including to reproduce, distribute, prepare derivative works, display, and perform it, only as enabled by a feature of the Service (such as video playback or embeds). For clarity, this license does not grant any rights or permissions for a user to make use of your Content independent of the Service.
In everyday language, this tells us that we have the right to use YouTube videos as long as we don’t cut YouTube out of the deal. We can’t download a video and embed the file in a course, and we can’t reupload it to Vimeo or another service where people aren’t watching it on YouTube.
This also means we can’t
We can’t stop with this section though. That’s why “Yes, as long as you don’t download the video and edit it” only gets partial credit. Let’s look at another part of the Terms of Service.
Restriction on Commercial Use
In the “Permissions and Restrictions” section (under “Your Use of the Service”), there is a list of things we are not allowed to do. One we need to pay extra close attention to is number 9, which is copied below.
You are not allowed to use the Service to view or listen to Content other than for personal, non-commercial use (for example, you may not publicly screen videos or stream music from the Service)
This language is pretty straightforward, especially if you look at the example in parentheses.
Including a YouTube video in a course does NOT fall into “personal, non-commercial use.” Unless maybe you’re creating a course to train your kids on how to load the dishwasher so the forks don’t stick together and the cups don’t end up filled with nasty food-water.
Inserting a YouTube video into an eLearning course or showing it in an instructor-led class could be considered a public screening—which is expressly mentioned here as an example of what we CAN’T do.
So does this mean we can’t use YouTube videos at all for educational or instructional use?
This is where the concept of Fair Use comes into play.
Fair Use
Fair Use is kind of a loophole in copyright law that allows us to use portions of a copyrighted work, under certain circumstances. You can learn more about Fair Use in this recent post.
Judges consider these questions when making Fair Use determinations:
- How is the copyrighted material being used?
- How unique is the copyrighted material?
- How much of the original work was used?
- Will the use of the work harm the market for it or its value?
Keep in mind, there are no guarantees. There’s no way to 100% prove your use will qualify as Fair Use. In the end, it’s all up to a judge if someone sues for copyright infringement.
How to Protect Yourself
Obviously. the best thing to do is to get permission from the video’s creator and get the video file directly from them. Then you could embed the file in your course and you wouldn’t be subject to YouTube’s Terms of Service.
Of course, getting permission AND the video file isn’t always possible. In fact, it’s pretty rare. So, here are some tips that could help substantiate a Fair Use claim for using a YouTube video in a course:
- Ask for permission from the video’s creator, and document your request. Even if you don’t receive permission, proving that you asked can support your Fair Use claim.
- Provide a link to the video on YouTube rather than downloading the file from YouTube.
- Use the video as a supplement to your content rather than as the main method of teaching it. Likewise, make sure the video doesn’t make up the bulk of your course.
- Only use as much as is absolutely necessary for meeting your instructional goal.
- For instructor-led courses, whenever feasible, provide the link to the video in a resource handout or download, rather than viewing it during class. In a virtual instructor-led class, you could provide the link in chat and pause to allow learners to view it from their computers, rather than streaming it. (This also helps with bandwidth issues.)
Courts generally favor nonprofit and educational institutions in Fair Use determinations, although these organizations don’t automatically get a pass and should still follow the suggestions above.
In addition, courts are more likely to rule in your favor if the audience for the video is limited and small. For example, showing a YouTube video in a class of 20 registered learners is more likely to be seen as Fair Use than showing it during a conference with 1,000 attendees.
Public Access vs. Public Domain
Some people think that because something is on the internet and is therefore “publicly available,” it can be used freely.
But “publicly available” does not equal “public domain.” Works in the public domain are those whose intellectual property rights have expired, have been forfeited, or are inapplicable.
As an example, A.A. Milne’s book, Winnie-the-Pooh, came into the public domain in 2022—meaning the original copyright expired. But Disney’s copyright still applies. So I could include Winnie-the-Pooh in a course (with hyphens, as A.A. Milne wrote him). But if I put a red T-shirt on him (a Disney creation), I may be guilty of copyright infringement.
(Just for funsies, here’s a cute Mint Mobile ad from Ryan Reynolds introducing “Winnie-the-Screwed.” As a Pooh fan, I much prefer this use of the character over the Blood and Honey horror movie version. Caution: The linked movie trailer contains flashing effects.)
There are some exceptions when we can use copyrighted material, such as in a review or parody. For more information, see my post about Copyright and Fair Use for L&D.
Much of the information on federal government websites is in the public domain, but not necessarily all of it. You can learn more about that at the Department of the Interior’s copyright website.
Summary
To sum up, my answer to the question, “Can I use a YouTube video in my course?” is maybe, if you do these things:
- Ask for permission from the video’s creator.
- Provide a link to YouTube.
- Use the video as a supplement, not as your primary content.
- Don’t use more than you absolutely need.
- Provide the link in a handout or download if possible.
If you can get the video file from the owner (with their permission), using it instead can help you avoid YouTube’s limitations.
Here are some resources for learning more:
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