legal issues in distance learning copyright law and student privacy
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Legal Issues in Distance Learning
Copyright Law and Student Privacy
Copyright Law: Basics
• Originated in 15th century Europe as “privileges” to printers; Statute of Anne (1710) accords rights to authors.
• Article I, § 8, clause 8: Congress may enact legislation to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
• U.S. Copyright Law: Title 17 of the United States Code.
Rights Conferred by Copyright Law
• The author of a copyrighted work holds exclusive rights
(1) to reproduce the work,(2) to distribute copies of the work,(3) to publicly display or perform the work,(4) to sell a copy of the work (but only one time),(5) to produce derivative works based on the
copyrighted work.• Rights may be transferred outright (by written
instrument) or licensed.
Copyrightable Material
• Copyright protection extends to “original works of authorship fixed in any tangible medium of expression.”
• Includes literary works; musical works, dramatic works; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; architectural works; computer code.
Copyrightability, Examined
• Work must be original: (1) Must not be substantially similar to a preexisting work.(2) Must contain “a minimal element of creativity.” For example,
facts are not copyrightable, but original compilations of facts are. Feist (white pages case): not all compilations are original.
• Work must be “fixed in a tangible medium of expression.”• Expression of an idea, but not the idea itself, is copyrightable: (1) E.g., Scientology and Dianetics.(2) Plagiarism vs. copyright infringement.
Who Owns the Copyright?
• Co-creators are co-owners.• Work-for-Hire Doctrine• Harvard “Statement of Policy in Regard to Inventions, Patents,
and Copyrights”: Members of the University own copyright in works they create unless it was
(1) created under a grant or other sponsorship agreement that says otherwise;
(2) “created by member of the non-teaching staff as part of the individual’s University responsibilities” (work-for-hire); or
(3) created with “substantial University financial, staff or other assistance” or with “extensive use of special or rare University holdings” (negotiated agreement b/w creator and University).
Copyright Formalities
• Berne Convention — international treaty, ratified by the U.S. in 1988. Creator of any copyrightable work on or after March 1, 1988 automatically acquires a copyright in the work.
• Copyright Notice:(1) “©” + [name of copyright owner] + [date of first publication].(2) required to establish copyright in any work that predates
March 1, 1988.(3) still useful, even for post-Berne Convention works, because
notice defeats an infringer’s defense of innocent infringement.• Copyright Registration:(1) accomplished by filing with the United States Copyright
Office.(2) entitles the registrant to statutory damages against infringers.
Copyright Duration
• “securing for Limited Times” . . .• A bit of a patchwork, as terms have been set, then
extended by Congress.• The current system:(1) Published before 1923: public domain.(2) Published between 1923 and 1963: 28 year term
with renewal option of 67 years.(3) Published between 1963 and 1977: 28 year term
with automatic 67-year renewal.(4) Created between 1978 and the present: life of the
author + 70 years.
The Public Domain
• Comprised of works subject to no legal restrictions on use, including
(1) works with expired copyright terms,
(2) U.S. government works,
[(3) works without a copyright notice . . . formerly]
• See, e.g., Google Book Search .pdf program.
Copyright Infringement
• Infringement is the unlawful act of violating any of the copyright holder’s exclusive rights in his or her work – e.g., reproducing, distributing, displaying the copyrighted work without the owner’s permission.
Remedies for Infringement
• Actual Damages;• Statutory Damages (when copyright has been
registered) ranging from $750 to $30,000 per work;• Statutory damages for “willful infringement” of up to
$150,000 per work, subject to exception: no willfulness damges for employees of nonprofit educational institutions who believed (reasonably) that their use was protected by fair use;
• Injunctive relief.
Copyright Issues in Distance Learning
• Content copyrighted by third parties:
(1) can I discuss it in a lecture?
(2) use excerpts of it in a lecture?
(3) display it in a lecture?
(4) perform it in a lecture?
(5) can I distribute digital copies in “handouts?”
Defenses to Infringement Claims
• Permission/License (Harvard licenses, Copyright Clearance Center)
• Public Domain• Fair Use• Face-to-Face Teaching Exception• TEACH Act (Distance Learning)• Archiving• Miscellaneous Statutory Exceptions
Fair Use
• Unique to U.S. copyright law;
• An infringement defense crafted by judges and written into the Copyright Act (17 U.S.C. § 107);
• An attempt to reconcile copyright to the First Amendment and to promote a critical and deliberative culture.
Fair Use: the Four Factors
• Purpose and Character of Use: is it “transformative?” Commercial? Critical? Scholarly?
• Nature of the Copyrighted Material: how “creative” is it? Fact-based or fictional?
• Amount and Substantiality of Material Used: how much is used? How much is needed for the user’s purpose? Is the material used the core or kernel of the work?
• Effect upon the Value of/Market for the Work.
Fair Use: the Upshot?
• Very fact-specific analysis. Hard to predict an outcome based on precedent.
• Use the factors to minimize risk.
• Some “core” fair uses include (1) scholarly criticism, (2) “nonprofit educational purposes,” (3) parody (within limits).
The Face-to-Face Teaching Exception
• 17 U.S.C. § 110(1) provides that “performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction” is not copyright infringement.
• (In the case of movies or other audiovisual works, the copy of the work must be lawfully obtained.)
• The exception does not apply to handouts.
The TEACH Act Exception
• Technology, Education, and Copyright Harmonization Act of 2002
• Applies to distance learning programs.• Reflects a compromise between content industry
interests and educational institutions.• Provides some protection to use of copyrighted
material in distance learning programs – short of the face-to-face teaching exception.
Provisions/Requirements of the TEACH ACT
• 17 U.S.C. § 110(2): exemption from infringement liability for “the performance of a nondramatic literary or musical work or reasonable and limited portions of any other work, or display of a work in an amount comparable to that which is typically displayed in the course of a live classroom session, by or in the course of a transmission.”
Conditions on the TEACH Act Exception
• Exemption only applies if(1) use is made by an “accredited nonprofit educational
institution,”(2) use is made “under the actual supervision of an
instructor as an integral part of a class session,”(3) use is “directly related and of material assistance to
the teaching content of the transmission,”(4) access to the transmission is limited to enrolled
students (“to the extent technologically feasible”),
More Conditions on the TEACH Act Exception
(5) the institution “institutes policies regarding copyright, provides informational materials to faculty, students, and relevant staff members that accurately describe, and promote compliance with, the laws of the United States relating to copyright, and provides notice to students that materials used in connection with the course may be subject to copyright protection,” and (finally)
(6) the institution “applies technological measures that reasonably prevent” students from keeping or distributing copies of the material after the class session (streaming audio/video v. mp3/mpeg files). This applies only to digital transmissions.
Exceptions to theTEACH Act Exception
• Like the face-to-face teaching exception, the TEACH Act exemption from infringement liability does not reach handouts (or the distance learning equivalent).
• The exemption does not extend to uses, in distance learning programs, of
(1) works specifically created or marketed for use in distance learning programs, and
(2) works unlawfully copied (when the institution knows they were pirated).
Student Privacy: FERPA
• FERPA: Family Educational Rights and Privacy Act (a/k/a the “Buckley Amendment”), 20 U.S.C. § 1232g and supporting regulations (34 C.F.R. part 99).
• Educational institutions that receive federal funding may forfeit that funding unless they
(1) make “education records” available to parents of students;(2) give parents the chance to correct errors in education records;(3) not disclose education records without the written consent of
parents.Obligations to parents transfer completely to students when they
turn 18.• No private right of action: parents/students may direct
complaints to the Department of Education for investigation.
FERPA: “Education Records”
• “Education Records” refers to any materials that (1) contain information directly related to a student; and (2) are maintained by an educational agency or institution or by a
person acting for such agency or institution. • Statute excludes (1) Personally maintained records of teachers and administrators;(2) Law enforcement records;(3) Student employment records;(4) Medical records (or other records relating to professional
care) of students over 18;(5) Alumni records.
FERPA: Implications for Distance Learning
• DOE: a video of a lecture in which a student appears is an “education record” of that student.
• Compliance/risk mitigation steps:(1) Limit access to video;(2) Get written permission from students;(3) Frame shots to avoid students.• Applies only to students who “are or have
been in attendance” at the institution.
Upshot: A Calculus of Risk
• What are the chances that a potential claimant will find out what I’m doing?
• That he/she will object?• That he/she will sue?• That he/she will win?• What would be the consequences of him/her
winning?• How crucial is what I’m doing to my educational
mission?• What steps can I take to reduce my risk?• Call the OGC!
Office of the General Counsel
• Main line: (617)495-1280
• http://ogc.harvard.edu
• My contact info:
(2) (617)495-1281