Online Education and Intellectual Property Protection

Currently, there is a movement to move classroom instruction onto the Internet. Software such as iTunes U and Blackboard both support the distribution of Audio, Video, and PDFs to students in a password protected environment. While this works to protect our personal intellectual property, it also makes it easy for us to inadvertently break copyright law.

In this entry, I will work to identify the pitfalls that an instructor can fall into while teaching and propose ways that we can all avoid breaking the law.

Fine Print: This document is meant as a guide and can not be construed as a substitute for legal advice. You are stongly encouraged to the linked in original documents and if a question arrises, please contact your university’s legal department. I am not lawyer, I am a podcaster and professor of astronomy. If you find any errors, please email me at pgay at siue dot edu.

  1. US Copyright Law
    1. Intent
      The origins of US copyright law are laid out in the US Constitution, which states

      “The Congress shall have power….to promote the progress of science and useful arts…by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries.”

      In this way, copyright is seen as a means of encouraging creativity. Under section 106 of the 1976 Copyright Act (the current version of the law), the copyright holder has

      “the exclusive rights to do and to authorize any of the following:
      (1) to reproduce the copyrighted work in copies or phonorecords;
      (2) to prepare derivative works based upon the copyrighted work;
      (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
      (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
      (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
      (6) in the case of sound recordings, to perform the copyrighted work pub-
      licly by means of a digital audio transmission. “

      Ideally, these rights should encourage people to create materials that they can profit from, and creativity is encouraged as a way of generating revenue through sales, licensing and royalties. Copyright holders can either grant permissions to use their work broadly – such as stating it is in the public domain – or on a case by case basis with royalties and licensing fees attached to the granting. This is discussed more below.

      Not everything can be copyrighted. Copyright law only protects things that can be recorded and are original. Specifically, under section 102a,

      “Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later
      developed, from which they can be perceived, reproduced, or otherwise commu-
      nicated, either directly or with the aid of a machine or device.”

      In this way, an improvised dance that is performed once and never transcribed or recorded is not copyrighted. Similarly, ideas and facts can not be copyrighted. Thus, the pattern of words in a book that communicate a new idea using a series of facts can be copyrighted, but others are free to use the idea of the book for new works and to use the facts in the book freely. This is covered under section 102b,

      “In no case does copyright protection for an original work of authorship
      extend to any idea, procedure, process, system, method of operation, concept,
      principle, or discovery, regardless of the form in which it is described, explained,
      illustrated, or embodied in such work.”

      While meant to encourage creativity, in the modern era many feel that the current copyright law actually has a stunting effect on artists and media creators (see Creative Commons essays). The most common argument goes something like this: What Disney did to Snow White, no one can do to Disney’s Snow White. Modern interpretations of past works are only possible after money (or at least legal agreements) have exchanged hands and the starving artist is left in the ill-defined land of Fair Use and Parody Law when trying to define new works relying on existing themes. As long as old copyrights bring in large licensing dollars, reprieve of the current duration of copyright licenses are unlikely.

    2. Duration of Copyright Protection
      Today, any new, privately created works are protected under copyright law from the moment they are created. While it may in some instances be necessary for an individual to prove they created something first, this can be accomplished relatively easily by mailing oneself original copies of new works via the USPS and keeping the copies in sealed, postmarked envelopes. Materials do not need to be published or registered to be copyrighted, and it is illegal to use any item that does not explicitly state that it is in the public domain, or has specific “free to use” rights attached to it.

      As an academic, one exception to copyright law can both work for and against me. Under section 105 of the Copyright Act,

      “Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from
      receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.”

      This exception means that any material created by the US government can be used in my classroom, and it also means most governmental websites are extremely good at identifying copyrighted and public domain materials. Unfortunately, it also means that any materials I create while working on a US grant will, unless otherwise arranged, be in the public domain.

      Year of Publication Conditions Copyright Term
      before 1923 none In the public domain
      1923 – 1977 Published w/o copyright notice
      1923 – 1963 Published w/ copyright notice
      copyright not renewed
      1923 – 1963 Published w/ copyright notice
      copyright is renewed
      95 years after publication date
      1964 – 1977 Published w/ copyright notice
      1978 – 1989 Published w/o copyright notice, but
      w/subsequant registration
      70yrs after the author’s death, or if work of corporate authorship, the shorter of 95 years from publication or 120 years from creation
      1978 – 1989 Published w/ copyright notice
      after 1989 none
      Unpublished works life of author + 70 years
      if author unknown, 120 years
    3. Resources
  2. Fair & Educational Use
    Several clauses in the copyright law open the door for the use of legally obtained copyrighted material and/or copies of legally obtained copyrighted materials in educational and non-profit settings and for use in critiques and journalistic endeavors. These loop holes are laid out under the heading “Fair Use” in section 107, which states,

    “the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or
    by any other means specified by that section, for purposes such as criticism, com-
    ment, news reporting, teaching (including multiple copies for classroom use),
    scholarship, or research, is not an infringement of copyright. In determining
    whether the use made of a work in any particular case is a fair use the factors
    to be considered shall include—
    (1) the purpose and character of the use, including whether such use is of a
    commercial nature or is for nonprofit educational purposes;
    (2) the nature of the copyrighted work;
    (3) the amount and substantiality of the portion used in relation to the copy-
    righted work as a whole; and
    (4) the effect of the use upon the potential market for or value of the copy-
    righted work.”

    It is important to note that while this section appears to make it possible to use any copyrighted materials in any educational setting, this is not the case. In the case of “Basic Books Inc. v. Kinko’s Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991)” the courts found that Kinkos photocopying of materials for course packs was in violation of the law. In other instances, people have been sued and lost when it could be shown that substantive parts of documents were copied and the copying potentially reduced potential profits. In using, copying, displaying, etc. legally obtained copyrighted materials in the classroom it is necessary to ask: Am I using a substantive part of a work? Is the use of the work in my class novel or uniquely illustrating a point? Is my use limiting the market for work?

    Many of us make substantive copies of works because we don’t know if the purchase of a classroom set of an item is a necessary expenditure without testing the material. One way Copyright Law encourages purchase of copyrighted materials is by allowing for copies of copyrighted materials to be tested. Copyright Law specifically allows for educational institutions to gain ” access to a commercially exploited copyrighted work solely in order to make a good faith determination of whether to acquire a copy of that work” is legal. (section 1201.d). This clause extends to software as well as other works. It is expected that as soon as it is determined the material is useful, that it will be purchased.

    It is important to note that in many cases educational Fair Use is limited to face-to-face classroom activities. Under section 110, it states, “the following are not infringe-
    ments of copyright: (1) 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.”

    Today’s digital classroom complicates the question of Fair Use and Educational Use on two fronts: the recording of live classes and distance learning. The Copyright Law of 1976 only provides exemptions face-to-face live teaching. Today, students often record our classes, and in some cases our university’s encourage (or even mandate) that our classes are videotaped for asynchronsis learning. Recognizing the changing complexities of modern teaching, the TEACH Act of 2002 attempts to define copyright law as it pertains to the classroom, distance learning, and multimedia presentations.

    The TEACH Act of 2002 redefines the classroom to include online activities that model the traditional classroom. While providing for greater use of legally obtained copyrighted material in teaching, it also places new strictures. Instructors must place copyright notices and instructions in classroom materials and password protect all materials. It is additionally required that every possible means be taken to prevent students from saving copyrighted material or otherwise copying it or retransmitting it. Also, copyrighted educational materials can not be used without purchase under the new guidelines in any way.

    The more one reads and studies copyright law, the more it becomes apparent that it is easy to overstep the limits of Fair Use and Educational use. Luckily, under section 504.c.2 of the Copyright Act, it is stated,

    The court shall remit statutory damages in any case where an infringer
    believed and had reasonable grounds for believing that his or her use of the
    copyrighted work was a fair use under section 107, if the infringer was: (i) an
    employee or agent of a nonprofit educational institution, library, or archives
    acting within the scope of his or her employment who, or such institution,
    library, or archives itself, which infringed by reproducing the work in copies
    or phonorecords.”

    (Further, indemnities are given in section 512.e.1 and 1204.b)

    1. Resources
  3. Creative Commons
    1. Resources
  4. Publically Available Materials & Clearly Copyrighted Materials
    1. Resources

4 Comments

  1. gabriel cortez March 18, 2008 at 2:14 am #

    For an ordinary web surfer like me, I thank you for providing an intricate discussion on the legal aspects of online education for several websites.

    It is a fact that there are many online educational courses offered by numerous websites that contain module courses for attaining skills and knowledge.

    I think that copyright infringement is respected by having permissions to reprint, use materials from the owner and it should be for educational purposes.

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  4. Forest Trail Academy August 29, 2015 at 7:11 am #

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