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The copyright implications of making online "How To" tutorials
I received a very interesting question from a friend recently. The subject of the question related to the copyright implications of making online tutorials in either image, text, video or a combination of all three. A specific aspect of the question referred to the use of third party content such as websites, social media platforms and software in the production of this “how to” tutorial
This is a particularly timely question given the necessity in education, training, promotion and marketing to find innovative ways of communicating with your audience. If you want to make a “how to” tutorial of how to use Zoom, for example, what copyright questions should you be asking yourself? After all, how easy will it be to make this tutorial if you don’t have screenshots of the Zoom application? And, yes, screenshots are subject to copyright.
NB – you should also be asking questions to ensure that you are not going to be faced suddenly with a “cease and desist” take down notice from the owner of the content that you are planning to use.
NB 2 – I know that if you look at YouTube, there is a multitude of “how to” tutorials for web-building sites, Microsoft applications, Apple, Adobe etc – and rarely does anyone in any of these tutorials make any reference either vocally or by text to any copyright and trademarks of the company whose content they are using. These people are taking a risk. You will also be taking a risk, but that risk can be mitigated. Please read on for the legal and practical answers to the questions that require to be answered.
Legal answer – if third party content is being used in a work that you are preparing, regardless of platform, you need a licence, permission, or can rely on a legal exception included in the Copyright, Designs and Patent Act 1988 (as amended) – the UK’s most recent Copyright Act.
Practical answer – My own experience of using screenshots etc for teaching and training purposes dates back a good number of years when Microsoft began to introduce multi-user licences for their basic Office package. I was working in Further Education and at the time, lecturers were obviously keen to write “how-to” articles, manuals, handouts, assessments etc for their students.
I fondly remember that to get permission to use MS screenshots in such circumstances, we were required to write to Bill Gates in Seattle – I kid you not! Unsurprisingly, it didn’t take MS and other software publishers long to realise that granting individual permissions was totally unrealistic, so they all issued a blanket licence allowing teachers to make the necessary copies, for teaching purposes only, and with an appropriate acknowledgement.
This basic premise still exists, but with the rapid development of technology, software and the easy access to it all, there have been some subtle developments along the way.
Basically, you can copy screen shots, processes etc and make videos of them to your hearts content – if the software publishers don’t perceive any commercial competition. That’s unlikely, since, along with other providers of “how-to” instruction manuals and videos, it could be argued that you are helping to promote the software and perhaps implicitly encourage viewers/clients to buy that software.
The software publishers see the threat coming if others start using their content for commercial purposes – ie copying code, adapting it and selling it. They also take a dim view of any derivative content that is critical or libellous and which may bring their content into disrepute.
The publishers also took a more considerate view when they themselves stopped producing the very hefty manuals that came with so many of their products – all the instructions, guides, FAQs are now delivered online, and in many cases, by their own videos.
The only issue that I can think of is if anyone’s “how-to” content is critical, derogatory or inaccurate, giving the software publishers cause to complain. They do cover themselves in their own terms an conditions with disclaimers about them not being responsible for any damage to hardware, profits, reputation etc if their software screws up what the licensee is using the software for, but we really don’t need to get into that just now. In the UK, it is possible, using one of the 1988 Act’s exceptions (30A of the 1988 UK Copyright Act) to parody or caricature third party content, but my advice would be to stay away from that activity
I mentioned earlier that licence, permission or legal exception might be needed. There is a legal exception that can help. You don’t have to do anything to obtain it – just make a risk decision and determine that if every challenged, which is highly unlikely, you are able to say, “I did xyz under such and such a clause of the 1988 Act” The clause in question here is under s 30 of the act, entitled “criticism, review, quotation and news reporting”.
This exception is a “general” exception, as opposed to a “disability” or “education” exception and is available for use in circumstances such as the “how to” tutorials. The caveat to the use of the exception is that it must be done under “fair dealing” – please cite “fair dealing”, not “fair use” which is the US doctrine for exceptions and is quite different from what the UK legislation offers, and confusingly is becoming interchangeable with “fair dealing”.
s30 is lengthy – the significant aspect that is of relevance is the quotation – “copyright in a work is not infringed by the use of a quotation from the work (whether for criticism or review or otherwise)” And now for the constraints – “the extent of the quotation is no more than is required by the specific purpose for which it is used” and “the quotation is accompanied by a sufficient acknowledgement (unless this would be impossible for reasons of practicality or otherwise)
So, where does that leave us? Given that there are no definitions, interpretations or examples (case law), the decision, as already stated, is down to your capacity for risk
It’s always a good idea to acknowledge a source and it would be sensible not to copy a work in its entirety – that’s hardly “fair”
The other point to note – and this is seen in all the “Dummies” guides etc is an acknowledgment of the various trademarks of the companies whose work is being referenced – again, always good practice
If it ever came to the worst, you would receive a cease and desist letter – so, you immediately take the content down – and then argue your case – never leave the content online if you receive such a letter. I know only too well that some such “letters” are “phishing“ but you can’t take that chance.
The use of someone else’s content always carries a risk, even from the most seemingly trivial examples, but copyright shouldn’t always be a hurdle or barrier – it can just as well be seen as an enabler.
In my capacity as a copyright adviser, I would be pleased to show you how copyright can “enable” – email@example.com is the address you need to start a conversation.
© Alan Rae May 2021 – may be published under CC-BY-NC licence