The use of computer networks and the World Wide Web to create classrooms in cyberspace, communicate to students and faculty, write and publish scholarly material and conduct research is now considered the norm for many educational institutions, particularly UMUC. Although these new digital tools have much promise to expand the breadth and depth of higher education, these tools also have the potential for misuse and abuse. There are many legal and ethical issues surrounding the use of information in the digital environment. Module Four and Module Five focus on how to properly use information whether accessed via an ILS database or other resource.

Objectives

After finishing the module, you will be able to:

	understand the relationship between education, research and the use of copyrighted materials
	understand the copyright legal framework and how it relates to course development
	review the education exemptions and fair use factors in copyright law
	review the process for e-reserves at UMUC
	apply the fair use factors to factual scenarios

Overview

The following topics will be covered:

	background and the legal framework
	copyright ownership and exclusive rights
	educational exemptions
	fair use
	e-reserves

Exercise 1 asks participants to evaluate a factual scenario and determine whether or not a professor's use of copyrighted works is a fair use.

Exercise 2 requires participants to make a determination about the nature of copyrighted information.

Copyright has always been connected to education and learning. Even the full title of the Statute of Anne, the foundation for U.S. copyright law, clearly identifies the connection:

Copyright is probably the most frequently implicated area of law for educational institutions. Classrooms in cyberspace, electronic mail, digital scholarly works, online databases, and the World Wide Web make extensive use of copyrighted material. Both faculty and students create and use substantial amounts of copyrighted information.

The Legal Framework
To begin, copyright in the United States is a monopoly granted pursuant to the U.S. Constitution to authors and inventors for the exclusive rights in their writings and discoveries. Specifically, the copyright clause of the U.S. Constitution states that the purpose of copyright is to promote:

.the progress of science and useful arts by securing for a limited time to authors and inventors the exclusive right to the exclusive right to their respective writings and discoveries. U.S. Const. art. 1, §8, cl.8.

The policy behind the copyright framework is that an economic incentive, in the form of a monopoly grant, is needed to create new works and thus promote the progress of science and useful arts.

The details concerning the application of the Copyright Clause to society are set in the Copyright Act of 1976 (1976 Act) and more recently in an amendment to the Act, the Digital Millennium Copyright Act of 1998.

Copyright Ownership
Copyright only attaches to works that are "original" works of "authorship" fixed in a "tangible medium of expression." 17 U.S.C. §102(a). Copyright protection exists from the moment of fixation in a tangible medium. Thus, protection is automatic and notice is not required; however, registration carries certain benefits and is required to bring a lawsuit. A minimal amount of creativity is required.

Thus, once a faculty member or student writes a paper via a word processor, typewriter or even by hand, that paper may be considered copyrighted work if it meets the statutory requirements of originality. Even the text written in an online class discussion or in an electronic mail communication may be considered copyrighted work as long as the work meets the originality requirement and is not simply a recitation of facts or ideas.

Protection does not attach to ideas, systems, processes or facts and protection is for a limited time. So, items with expired copyright terms, ideas and facts, government works and items that do not meet the statutory requirements are considered part of the public domain and are free for public use. Former UMUC IP Scholar, Lolly Gasaway, has developed a chart, When Works Pass into the Public Domain, that helps you determine whether or not the work you seek to use has an expired copyright term.

Remember this tip!

Originality + Fixation = Copyright Protection

The 1976 Act includes eight categories of works that fall under copyright protection:

1. Literary works

2. Musical works

3. Dramatic works

4. Pantomimes and Choreographic works

5. Pictorial, graphic and sculptural works

6. Motion pictures and audiovisual works

7. Sound recordings

8. Architectural works
    17 U.S.C. § 102 (a).

Examples of copyrighted expression include poetry, prose, computer programming, musical notation, recorded music and/or song, animations, video footage, java applets, web pages and photographs.

The following are helpful questions to ask to determine whether your work is protected by copyright:

Is there a visible copyright symbol (©) on the work?

The copyright symbol is a good indication that the work is protected by copyright. However, a work may be legally protected without a visible copyright symbol. Remember, does the work meet the statutory requirements for copyright?

When was it published?

After a set amount of time some works pass into the public domain and are no longer protected by copyright law. See the chart, When Works Pass into the Public Domain, prepared by copyright scholar Lolly Gasaway for more details.

Who is the copyright owner?

In general, works by the US Government are not eligible for US copyright protection. However this gets complicated if co-authored with a private research firm, etc.

If an online resource- does it hold a Creative Commons License?

More and more you will encounter online works that have a Creative Commons symbol someplace on the page. Behind these symbols are the terms of use. Read them carefully.

The first step in analyzing any copyright problem is to determine whether the work meets the statutory requirements for copyright protection.

If the work you seek to use is protected by copyright, then proceed to step 2. If not, then stop your analysis and use the work since there are no copyright constraints.

Copyright owners have the exclusive rights to do several things with their works. . These rights include the following:

-the right to make copies

-the right to create derivative works

-the right to distribute, display and perform works publicly
 17 U.S.C.§ 106.

Many of these rights are used in the course of working in the digital environment. For example, every time you save a work to a disk or scan a work to include on a web site-the right to copy is involved. Actually, digitizing, uploading, downloading and file transfer all involve the right to make copies. The right to public display is involved each time you post information on a bulletin board or web site.

Copyright owners are entitled to exercise, authorize and prevent others from exercising these rights also. Unless a use is exempt or considered fair, you must seek the permission of the copyright owner and/or pay a license fee to use a copyrighted work. If you use a copyrighted work without permission or pursuant to an exemption or fair use, then you may have infringed the exclusive rights of the copyright owner and you and the University may be sued.

Education Exemptions
The education exemptions are located in section 110 of the Copyright Act of 1976. Section 110(1) addresses face-to-face teaching and section 110(2) addresses educational transmissions. Section 110 focuses on the rights of public performance and public display and does not address other rights such as reproduction or distribution. Examples of public display include showing a video tape, picture, page of text or book cover to a class. Examples of public performance would include showing a motion picture with accompanying sound, singing a song or reciting a poem to a class. 17 U.S.C.§101;106(4) and (5).

Section 110(1) permits teachers and students in non-profit educational institutions to perform or display any work in the classroom without seeking permission from the copyright owner. The primary limitation in the exemption is that the performance or display must be in a classroom or similar place of instruction and if the work is an audiovisual or motion picture, it must have been lawfully obtained. If you would like to review the text of section 110(1), please see the digitized copy of the Copyright Act.

The recently amended section 110(2) of the Copyright Act is called the Technology, Education and Copyright Harmonization Act or TEACH Act. The TEACH Act focuses on the use of copyright works in educational transmissions, such as digital distance education. The types of work covered by TEACH include, but are not limited to, films, music and graphics. The specific types of works covered by the TEACH Act are listed below:

Category I (click link for examples)

• Performances of nondramatic literary works
• Performances of nondramatic musical works

Perform= to render, recite, play, dance or act it, directly or by means of any device

Category II (click link for examples)

• Performances of any other work, including dramatic works and audiovisual works, but only in "reasonable and limited portions"

• Performances of any other work, including dramatic works and audiovisual works, but only in "reasonable and limited portions"

Category III (click link for examples)

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

• Show film images, non-sequentially directly or through a film, slide, television image

While the TEACH Act does expand the use of copyrighted works in digital distance education, these expanded possible uses in educational transmissions, such as in digital distance education environments, are subject to numerous conditions.

One can only take advantage of the TEACH Act after meeting several conditions. Those conditions are outlined in The TEACH Toolkit developed by North Carolina State University. UMUC is presently evaluating institutional compliance with TEACH Act requirements. Please DO NOT USE copyrighted material in your online classroom pursuant to the TEACH Act without discussing your specific situation thoroughly and getting prior approval from senior managers at the Center for Intellectual Property (i.e. Kimberly Bonner) or the Dean of Academic Resources and Services, Dr. Kim Kelley.

The TEACH Act does not replace fair use. It is simply one of the educational exemptions in the Copyright Act that specifically addresses digital transmissions. For more information about the TEACH Act and its application to your course development, please visit the the Center for Intellectual Property's TEACH Act resources.

Fair Use
The Copyright Act of 1976 provides the criteria by which a use is determined fair. These "fair" uses are also free to the user. Fair use is a legal defense to a claim of infringement. Ultimately, a court of law makes the final determination about what is a fair use under a given set of circumstances. Section 107 of the Copyright Act of 1976 specifies fair uses for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research are favored. However, when determining whether or not a use of a copyrighted work is fair, the following fair use factors outlined in section 107 need to be taken into consideration:

There are several fair use checklists that have been developed by various universities. The University of Minnesota has recently developed a Fair Use Analysis Tool that helps you to decide whether or not a use is fair.

Kenneth Crews, former UMUC IP Scholar, has also developed a Checklist for Fair Use for faculty, staff and students to use in determining whether or not a specific use is fair.

You should not assume that because you are teaching at a non-profit educational institution that your use of copyrighted works is fair. Purpose and character of the use is only one factor out of four. Each of the factors must be weighed and analyzed before concluding that your specific use of copyrighted material in your class is covered under fair use. Ultimately, only a court of law may definitively determine whether or not a use is fair. However, the fact that you utilized checklists like the ones listed above bolsters any fair use defense you would have in a court of law.

Remember this tip!

Is my use covered by an education exemption? Yes/No

Is my use a fair use? Yes/No

If your answer to either of these questions is yes, then you are free to use the work without seeking permission or paying a license fee.

If your answers to both of these questions are no, then you need to get permission and/or pay a license fee to use the work.

E-reserves are becoming widely used in higher education as a means to get critical scholarly materials to students. However, just as photocopy reserves were unpopular with copyright owners and publishers, so are e-reserves. As with any use of copyrighted material in the development of your course, careful planning is critical.

The e-reserves service provided by Information and Library Services (ILS) retrieves and posts articles or book chapters in your WebTycho or WebTycho-enhanced classroom, ensures that permissions for use are obtained, and pays reasonable license fees for the use of the material.

If the item is in the public domain, there are no copyright issues with which to contend. However, more often than not, faculty seek to place copyrighted works in the WebTycho e-reserve space. The ILS e-reserves policy allows for use pursuant to fair use in the first semester that you request a work. For example, if you need to place a journal article on e-reserves, the first semester that the journal article is available in your class is considered a fair use under the ILS e-reserves policy.

If you seek to use the e-reserve item for more than one semester, then permission must be obtained. The e-reserves service will obtain this permission for you and handle any fees the second time a request is made or when the e-reserve reading is imported to the next semester when you import your WebTycho classroom. The e-reserves team will review all requests to determine the best way to place the item on e-reserves. If the article or other material that you seek to use is already in an ILS database or online, the e-reserves team will provide a direct link to the materials or instructions for accessing the materials in the database. In order to ensure that there is enough time to place items into your classroom, you ideally need to make your request for e-reserves at least four (4) weeks in advance. There is a limit of 20 e-reserves items per class section, however you should contact the e-reserves librarian at mailto:ereserves@umuc.eduif you require more than 20 items.

For more detailed information about the ILS policy regarding e-reserves please review the Electronic Reserves FAQ. [http://www.umuc.edu/library/ereserve/resfaq.html]

Module Four has briefly discussed some of the issues involving the legal use of information in teaching, learning and research. You have reviewed the copyright ownership framework, education exemptions, fair use and e-reserves. Module Five will provide an overview of some of the ethical issues involved in using resources in the development of courses and student assignments.

The following two exercises apply your understanding of fair use and the nature of copyrighted information.

•  Remember Dr. No? Please review the scenario and the fair use factors highlighted above and in the checklists. After reviewing the factors, please analyze whether or not Dr. No's use of the stated materials to be copied onto the CD Rom is a fair use. Please make sure that you state and analyze each fair use factor in your analysis. Your rationale in this exercise is more important than your conclusion. Post your analysis in the conference area.

•  You are a political scientist who has spent a career researching the voting patterns of every voting bloc in every congressional district in America for the past 100 years. You publish your results in a book. Your results are quoted by every talk show pundit. However, they do not ask your permission, give you credit or pay you. Can you successfully sue them? Please post your analysis in the conference area.

For a good introduction to copyright, please review the two online tutorials created by the Center for Intellectual Property @ UMUC. Please see © Primer and Digital © Primer.