Rick SheltonAssistant Coordinator of

Academic ServicesNortheastern State University

Broken Arrow

Copyright, Distance Education and the TEACH Act

Disclaimer

Please Note: The author of this presentation is not an attorney. This information is presented as a layman’s overview and does not constitute legal advice. Please contact legal counsel for specific advice.

Copyright Primer

Basics of copyright Copyright and education Fair use Distance education The TEACH Act

Copyright Checklist Copyright Problems On

the Web Typical permissions Avoiding Problems

Topics

The Basics

Why Copyright?

“The primary objective of copyright is… to promote the Progress of Science and useful Arts.'

To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work.

This result … is the means by which copyright advances the progress of science and art. ” 1

Copyright Overview

Copyright is a form of protection under Title 17, U.S. Code for “original works of authorship,”

It includes literary, dramatic, musical, artistic, and certain other intellectual works

Legal Basics

Under the Berne Copyright Convention, every creative work is copyrighted the moment it is fixed in tangible form.

No registration is necessary, though it's needed later to sue.

The copyright lasts until 75 years after the author dies.

Facts and ideas can't be copyrighted, only expressions of creative effort. 2

Copyright and Education

Copyright Problems in Higher Ed

Most problems occur in the following areas – Fair use of supplemental class materials– Music and performed materials– Distance Education– Peer-to-peer applications– Video tapes, DVD, CD transfers– Recording speeches or performances

Supplemental Class Materials

Course packs Textbook copies Images

Music and Performed Materials

MP3 files Audio Cassettes Music CDs Other recordings of:

– Plays– Opera– Speeches

Peer to Peer

Peer-to-peer computing is the sharing of computer resources and services by direct exchange between systems

These files as a rule utilize their applications to share copyrighted material.

By default they open a computer up to act as a server

Peer to Peer

This means you may aiding in the transfer of illegal copyrighted material

You could be subject to civil and/or criminal prosecution

Many universities are cracking down across the board on their use

Peer to Peer

Use of these applications means you may aid in the transfer of illegal copyrighted material

Many universities are cracking down across the board on their use

Commonly found applications:

• Phex• Shareaza• Swapper• Gnucleus

• Morphus• Kazaa• BearShare• LimeWire

Fair Use

The Fair Use Defense

The Copyright Act permits a "fair use" defense … when the unauthorized use is made for purposes of teaching, scholarship, research, criticism, or comment.

“Fair use" is not a bright line legal test. Rather, four statutory criteria are assessed.

1. The purpose and character of the use.(including whether it is for profit or not)

2. The nature of the copyrighted work.

3. The substantiality of the amount used in comparison to the total work.

4. The effect of the use on the marketability of the original. 3

The Fair Use Defense Criteria

The Purpose and Character of the Use

This generally weighs in favor of fair use if: – the use is a nonprofit educational one– Not for commercial use

Most university uses are characterized as nonprofit educational uses

Educational use alone is not automatically fair use

The Nature of the Copyrighted Work

This will generally weigh in favor of fair use if:– the work used is factual in nature (scholarly,

technical, scientific)– not works involving creative expression

plays, poems, fictional works, photographs, paintings

Substantiality of the Portion Used

The larger the amount you use, the less likely it will be a fair use

Each situation to be judged on its specific facts

Quality of the portion used as well as the quantity

Effect of the Use on the Market for or Value of the Copyrighted Work

If use became widespread and would negatively impact the market, this factor would weigh against fair use.

This factor and the third factor, substantiality work in tandem

Copyright Problems in Telecourses

Copyright Problems in Telecourses

Complex questions concerning copyright ownership arise when telecourses integrate live lectures and preexisting materials

Ownership is clouded when groups record programs for tape-delayed viewing and archiving

Distributed Educational Material: Agreements with Contributors

Before producing or distributing any programming that incorporates copyrighted works: – Obtain written clearances from copyright owners– Obtain written clearance to prepare, perform,

display, distribute, and reproduce any derivative works prepared from those materials

Groups should also obtain clearances for all ancillary materials distributed to students in connection with the telecast courses.

Although sections of the Copyright Act allow for the use of certain materials without the copyright owner's permission in face-to-face teaching situations and in transmitted classes, the scope of this permission is unclear. 3

Copyright Problems in Telecourses

Student Waivers

Other classroom participants, aside from lecturers and contributors, may also be able to make a claim regarding telecourses.

“Telecommunications organizations and universities should obtain a release from all students, or other audience members, as well as lecturers and other on-camera participants that assign their contributions in the work to the organization or university and authorize the use of their name, voice and likeness.” 3

TEACH Act

TEACH Act

Repeals earlier version of Section 110(2) Expanded range of allowed works Expansion of receiving locations Storage of transmitted content Digitizing of analog works

Teach Act Overview

The new TEACH Act law now explicitly permits: – Performances of non-dramatic literary works and

musical works.– Performances of any other work, including

dramatic works and audiovisual works, but only in "reasonable and limited portions"; and

– Displays of any work "in an amount comparable to that which is typically displayed in the course of a live classroom session.”4

The following materials may not be used: – Works that are marketed "primarily for

performance or display as part of mediated instructional activities transmitted via digital networks"; and

– Performances or displays … of copies "not lawfully made and acquired" under the U.S. Copyright Act, if the educational institution "knew or had reason to believe" that they were not lawfully made and acquired. 4

Teach Act Overview

An instructor … must adhere to the following requirements: – The performance or display "is made by, at the

direction of, or under the actual supervision of an instructor";

– The materials are transmitted "as an integral part of a class session offered as a regular part of the systematic, mediated instructional activities" of the educational institution; and 4

Duties of Instructors

Duties of Instructors

– The copyrighted materials are "directly related and of material assistance to the teaching content of the transmission." 4

– The TEACH statute … involving a "digital transmission," must be in the context of "mediated instructional activities."

– This language means that the uses of materials in the program must be "an integral part of the class experience, controlled by or under the actual supervision of the instructor and analogous to the type of performance or display that would take place in a live classroom setting." 4

Duties of Instructors

Duties of Instructors

The statute specifies that mediated instructional activities "do not encompass uses of textbooks and other materials” which are typically purchased or acquired by the students.

The point of this language is to prevent an instructor from including, in a digital transmission, copies of materials that are specifically marketed for and meant to be used by students outside of the classroom 4

The TEACH Act includes a prohibition against the conversion of materials from analog into digital formats, except under the following circumstances:– The amount that may be converted is limited to

the amount of appropriate works that may be performed or displayed, pursuant to the revised Section 110(2); and

– A digital version of the work is not "available to the institution," 4

Duties of Instructors

These requirements generally mean that educators must take two steps before digitizing an analog work. – First, … confirm that the exact material converted

to digital format is within the scope of materials and "portion" limitations permitted under the new law.

– Second, educators need to check for digital versions of the work available. 4

Duties of Instructors

Copyright Checklist

COPYRIGHT CHECKLIST

The college must be accredited and nonprofit.

The college must have an internal policy on use of copyrighted material and on copyright law.

The college must provide printed or online resources for faculty members that describe their rights and responsibilities under copyright law.

The material must not have been originally intended for educational use.

The material must have been lawfully acquired

The material must be an integral part of the class session.

Reasonable precautions must be made to restrict access to the copyrighted content to students enrolled in the course.

Other reasonable controls must be used to prevent students from disseminating the material after viewing it.

COPYRIGHT CHECKLIST

If a digital version of the material is readily available for use at the institution, then the instructor cannot convert an analog version to digital form for use in an online course.

The college must inform students that the material may be protected by copyright law.

SOURCE: North Carolina State University

Section: Information TechnologyVolume 49, Issue 29, Page A29

COPYRIGHT CHECKLIST

Copyright Problems On the Web

Images

Images often “ripped” from web sites No credit given No permissions sought

Linking

Generally speaking most web site managers do not mind links to their site – but some do. It is always best to ask permission in the first place.

There are three main types of linking:– Portal linking

Link to the home page

– Page Linking Linking to the page on which article or file is found

– Deep Linking Link deep within a site

Linking

Portal links are the most commonly accepted method because:

– Fewer risks of offending copyright holder– Allows viewer to see the rest of the site

Many sites ask that you use this method such as: “Please link to the Web page from which individual files are linked, rather than to the individual files themselves “www.educause.edu/copyright.html

Linking

Page linking– This is the second best method because it puts

the user on the page of the site, thus allowing them the option of viewing the rest of the site

Linking

Deep linking– This is the method that can get you in trouble– It pulls information from deep within a site– Bypasses the site portal– Often the page URL name is obscure and may

not even be related to the main site– Most often used with files such

as .PDF, .Doc, .XML, .GIF, .JPEG, .Mov etc.

Web Page References

At a minimum, a reference of an Internet source should provide a document title or description, a date (either the date of publication or update or the date of retrieval), and an address (in Internet terms, a uniform resource locator, or URL). Whenever possible, identify the authors of a document as well. 5

Permissions

Permission Requests

How do I get permission to use somebody else's work? – You can ask for it. If you know who the copyright

owner is, you may contact the owner directly. – If you are not certain about the ownership the

Copyright Office can conduct a search of its records for a fee of $75 per hour.

– Normally an email will work and is fairly quick– Letters and or phone calls may also be necessary.

Finding Permissions

Permissions are not always easy to find Legal Notices sections

– It is the researcher's obligation to determine and satisfy copyright or other use restrictions when publishing or otherwise distributing materials found.

Terms of Use/Service Sections

Permissions Examples

CNN – http://www.cnn.com/interactive_legal.html– For web posting, reprint, transcript or licensing requests

for CNN material, please contact licensing.agent@turner.com

Sandra Lee Semi-Homemade – You may download or copy one copy of the Site Content

for personal, noncommercial use only, provided that no changes in or deletion of author attribution, trademark, legend, copyright notice, or other proprietary notices shall be made.

– www.semihomemade.com/privacy.htm

Permission Forms

Some sites are now putting up online permission forms you can fill out.– http://www.wellesley.edu/Library/permissions.html– http://www.ssabsa.sa.edu.au/permission/

permission.pdf– http://www.teachercreated.com/contact/

permissions.shtml– http://digital.lib.msu.edu/request/

Avoiding Problems

Avoiding Problems

In general a person can avoid problems with copyright by: – Using Blackboard

Limits the audience Limits outside searches Sets precedent

– Avoid placing material on open web pages Require password to access

– Obtain permission to use materials

Avoiding Problems

– Reference each document, paragraph, sentence, image, etc. with a appropriate attribution

– Avoid using material found on sites which are of questionable origin

– Get signed release/memorandum of understanding forms

Keep these on file

– Use a checklist to evaluate materials to be used

Copyright Links

www.lib.ncsu.edu/scc/legislative/teachkit/checklist.html

http://arapaho.nsuok.edu/~ctl/generalinfo/standards/copyrightanddeducaion.html

http://www.lib.ncsu.edu/scc/legislative/teachkit/teach_fairuse.html

Copyright Links

http://www.lib.ncsu.edu/scc/tutorial/fairuse3.html

http://www.ala.org/washoff/teach.html http://www.lib.ncsu.edu/scc/contents.html

References

1. Justice Sandra Day O'Connor, Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 349 (1991)

2. EDUCAUSE: www.educause.edu/copyright.html3. Kenneth D. Salomon, Esquire , Dow, Lohnes & Albertson

Washington, D.C.4. Kenneth D. Crews, Professor of Law

Director, Copyright Management Center Indiana University School of Law-Indianapoliswww.ala.org/washoff/teach.html

5. APA Online, From the 5th Edition of the Publication Manual (© 2001)www.apastyle.org/elecmedia.html

Questions