Does your company have a source of royalty-free stock photos and clip art that can be licensed for use—or do you frequently grab images from various web sites and use them without credit? Does your training department record or license all audio and video—or do you download them directly from YouTube (or “rip” them from a DVD) without permission? Also, do you and your department write and design the content—or was someone else’s content “borrowed” without their knowledge or consent?
Using the content of others without their permission is unlawful and an infringement of their intellectual property rights. If you have a legitimate reason to include a copyrighted work in your training programs—as long as you gain permission or give attribution for it—it may be acceptable under what’s called “fair use.” Whether you’re an instructional designer working for yourself or one who’s employed by a Fortune 500 company, the law applies to you.
A layperson’s description of fair use, which appears in Title 17 of the 1961 U.S. Copyright Act, can be found on the U.S. Copyright Office’s site at copyright.gov/fls/fl102.html. For example, the act allows “reproduction by a teacher or student of a small part of a work to illustrate a lesson” (but not if you use it for entertainment value). Let’s say you’re teaching a class how a certain medical procedure saves lives; you probably won’t need written permission from a Hollywood studio to play a short excerpt from a medical TV show that demonstrates the procedure. However, this type of fair use is meant for face-to-face instruction, not for an online learning program that may be accessed by thousands.
It’s true that intellectual property lawyers aren’t flocking to sign up for your company’s e-learning courses, webinars and classroom training to make sure that you’re complying with the law. Their attention is usually focused on infringement of intellectual property that finds it way in locations where many people can see it (such as on the web, mass-market books, TV, movies and advertising). But it’s better to focus on making the content the best that you can than to constantly look over your shoulder.
Just because there’s an endless amount of content on the web, that doesn’t mean you can freely use any of it. In fact, a web search will identify dozens of news articles about individuals prosecuted for stealing intellectual property and sharing it with others. Even if intellectual property laws are lax and “everybody does it, anyway,” set the example by being thoroughly professional and not stealing (or even “rewriting”) someone else’s content. Your proper conduct will shine like a beacon of responsibility for your co-workers, company and clients.
If you willfully steal content, there’s a possibility you will get caught—and you and your company will become liable for millions of dollars in fines. You could even face up to a 10-year prison term. However, damage to your reputation and career is much more likely to happen. For example, let’s say thousands of your company’s employees (or your clients’ employees and customers) take an online course you designed, and a few of them complain to their managers that you just “slapped together” content from various unattributed sources. As a result, your work is removed from the LMS and scrutinized by the legal department. You might be branded a plagiarist or accused of illegally using intellectual property—and be fired because of it. (That’s not a worthy accomplishment to put on your resume.) Also, while your company may not sustain legal damages from your misdeeds, an intellectual property violation may cause significant embarrassment in the business community. Again, you’d be out of a job if you were responsible for it. So ask yourself, do I really need this content? Is it worth the potential personal and professional consequences?
I recommend being safe and legal by making sure that every word, design, image, audio and video is either created within your company or is legally licensed for use—or that you obtain written permission from the owner or their legal representatives and give it proper attribution. In other words, strictly avoid using content that’s owned by others. It may harm you and your company…in ways that should come from your own imagination.