Copyright Issues

 This introduction on copyright was prepared by Jeff Cain (English Department) and Nancy Delvechhio (Collection Development Librarian).  Their knowledge and expertise in this area have proven invaluable in helping to simplify the issue of copyright for instructors at Sacred Heart University.

Online Teaching and Copyright Issues (Jeff Cain and Nancy Delvechhio)

One of the great advantages of online learning is the accessibility of information, reports, texts, and databases. Instructors from most disciplines will find that at least some of the material they wish to present to students can readily be found online and that using online resources in this manner saves time that can be better spent on working more directly with students.

However, you may find that some of this material may be under copyright protection, and while the rules for educational use are relatively unimposing, online instructors should make themselves aware of certain issues and practices.  Usually, a copyrighted web page, text, image, or other online source will have a notice to that effect attached.  Best practice involves familiarizing yourself with institutional policy on copyright policy to make sure that materials you may be posting on your own Blackboard or other website does not infringe upon someone else’s intellectual property privileges.  In some instances, it might be necessary to obtain permission from the author and/or copyright owner.

So what exactly is covered and not covered by copyright?  According to Title 17 of the U.S. code, copyright serves to protect any work that is ‘fixed in any tangible medium of expression’.  This would include:

• ·         Literary works
• ·         Musical works (and accompanying lyrics)
• ·         Dramatic works (and accompanying music)
• ·         Pictorial, graphic and sculptural works
• ·         Motion pictures and other audiovisual works
• ·         Sound recordings
• ·         Architectural works
• ·         Computer programs

These examples are pretty broad and can be interpreted to cover just about anything.  Some items are specifically not protected by copyright including:

• ·         Names
• ·         Titles
• ·         Slogans
• ·         Concepts
• ·         Ideas
• ·         Facts

Interestingly, while copyright may cover the music and the lyrics of a particular song, the title of the song would not be protected.   Similarly, while an idea or concept may not be protected by copyright, the expression (including the medium used for the expression) would be protected under copyright.

This all sounds pretty confusing, right?  Well, luckily for educators, we have the benefit of being protected under something called “Fair Use”.  “Fair Use” is a specific part of the U.S. Copyright Act of 1976.  Among other things, Fair Use provides for educational and scholarly deployment of short quotations or sections of copyrighted material:

The Fair-Use Statute Section 107 of the Copyright Act of 1976.
Limitations on exclusive rights: Fair use.

[Adapted from “Fair Use Overview and Meaning for Higher Education,” by Kenneth D. Crews, 2002-2006. Copyright Management Center of Indiana University and Purdue University Indianapolis (IUPUI). October 21st, 2006 <http://www.copyright.iupui.edu/highered.htm#107> ]

[T]he fair use of a copyrighted work, including such use by reproduction in copies or phono-records or by any other means specified in that section, for purposes such as criticism, comment, 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:

The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

1. The nature of the copyrighted work;
2. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
3. The effect of the use upon the potential market for or value of the copyrighted work.

In general, this means that students, libraries and educational institutions have a right to expect that U.S. Government works and other materials present in the ‘public domain’ will be readily available without restriction and that the rights of use for nonprofit education apply in both traditional face-to-face classroom settings as well as online courses.

So how does Fair Use apply to materials delivered through an online course?  In 1996, the Fair Use statute was extended to include the ‘Fair Use Guidelines for Educational Multimedia’.  While this congressional report is not actual ‘law’ (we will discuss the current law in Lecture 2), it is accepted as a set of standards to which educational institutions should adhere to remain in copyright compliance.  These guidelines take into account the ease with which digital content can be copied and distributed and prescribes certain limitations that instructors utilizing digital material in their courses should consider and abide by.

In general, the Guidelines limit the use of multimedia materials in a course to a specified period of time, a particular portion of a work and the copying and distribution of a digital resource.

Time Limitation

The Guidelines specify that instructors should limit the use a copyrighted multimedia instructional resource to a period not to exceed two years following the initial use of the resource.  After this two year period, instructors must obtain permission for further use from the copyright holder.

Copying Restriction

The Guidelines specify that instructors should make every effort to utilize technology that prevents the copying and copyrighted material.  In the absence of the technical ability to limit copying of digital material, instructors should explicitly state that students should not make copies of the material(s).    Another recommendation is that material should only be available to students for no more than 15 days.

Distribution Limitation

The Guidelines specify that the distribution of copyrighted multimedia instructional material should be restricted to students enrolled in the course in which the material(s) are used.   The precise wording indicates that there must be ‘technological limitations on access to the network and educational multimedia project’.  The good news is that by delivering your online courses through Blackboard, the system automatically provides such protection.

Portion Restriction

The Guidelines specify that only portions of an original copyrighted resource may be made available in an online course.  The amount of material that may be used from a digital resource depends upon the type of media the copyrighted resource exits in.  The following table can be used as a general guide:

Media Type	Allowable Portion
Video (Motion Media)	Up to 10% of the total video OR 3 minutes; whichever is LESS
Text	Up to 10% of an entire work OR 1000 words; whichever is LESS
Music (including lyrics) & Music Video	Up to 10% of the entire work OR 30 seconds; whichever is LESS
Illustrations & Photographs	Less than 5 images from a single artist or photographer OR no more than 15 images from a published collective work
Numerical Data	Up to 10% OR 2500 items; whichever is LESS

While the Guidelines for Educational Multimedia expanded Fair Use to include digital resources, more recent legislation made these restrictions formal.  This legislation is referred to as the TEACH (Technology, Education, and Copyright Harmonization) Act which was signed into law in 2002.  TEACH constitutes a revision of parts of the copyright law; its main purpose is to extend “fair use” copyright rules into digital and electronic formats. For our purposes, it is generally safe to assume that anything covered by “fair use” and the ‘Guidelines for Educational Multimedia’ is also covered by TEACH.  This coverage includes information, texts, images, video, or sound posted for straight online courses, hybrid or blended courses, and face to face classes with supplementary online material. 

In order to comply with the TEACH Act, instructors must meet several ‘requirements’ which are summarized below:

• ·         Participate in the planning and teaching of the course
• ·         Provide only materials similar to those used in the traditional classroom
• ·         Use non-print resources in limited portions (refer to the ‘Guidelines’)
• ·         Use only legally-obtained copies of materials
• ·         Direct students to original sources whenever possible
• ·         Convert analog materials into digital form only when a digital copy is not already available and only in portions adhering to the ‘Guidelines’
• ·         Provide statement that course materials are subject to copyright law in syllabus
• ·         Limit access to materials to students enrolled in course
• ·         Limit the amount of time materials are available to the amount of time needed to complete the assignment/module
• ·         Prevent further copying and distribution of material

As an online instructor, if you are unsure about a specific case that concerns intellectual property or copyright, you should refer inquiries to the appropriate library personnel.  At Sacred Heart, our Collection Development Librarian, Nancy Delvecchio (delvecchion@sacredheart.edu), would be the most appropriate librarian to direct such questions.

To guide you through some of these issues you may refer to the following sample copyright policy. Please note that this is only a guide at this point and is not an official policy of SHU. SHU Draft Copyright Policy.doc

For more detailed information on

• ·         Intellectual property law, copyright, fair use, and TEACH:
• o   http://www.copyright.iupui.edu/index.htm
• ·         US Copyright Office
• o   http://www.loc.gov/copyright
• ·         Fair Use Guidelines for Educational Multimedia

http://www.utsystem.edu/OGC/IntellectualProperty/ccmcguid.htm

Parts of the background materials for this module are used here by permission of the Copyright Management Center of Indiana University and Purdue University, Indianapolis (IUPUI)