Copyright and Distance Education

Thomas J. Tobin
Westmoreland County Community College
	
Overview
	This essay addresses the concerns that DE administrators must address with regard to institutional, faculty, and student use of copyrighted material.  This workshop aims to provide the essentials for compliance with U.S. copyright conventions.  As such, it will focus on the "need-to-know" aspects of copyright, without focusing in great detail on case law or U.S. Code (of course, questions about these topics are welcome).  Presentation attendees will have the opportunity to learn and apply copyright guidelines in hands-on exercises.

Introduction
	Before we get into the nuts and bolts of copyright, let’s take a quick look at Dr. Paul S. Boyer’s History of the Earth course web pages at Fairleigh Dickinson University (figure 4):
Woolly Mammoth Animation
	This animation was begun by scanning a 1996 US postage stamp at 1200 dpi on an Apple ColorOneScanner. The writing from the stamp was skillfully removed in Adobe PhotoShop. Then the mammoth's tail was removed and the background was (again skillfully!) painted in behind the tail. The tail was then rotated successively and placed in different positions in a series of GIF images which act as frames in the animation. For greater realism, the tail was modified slightly from frame to frame. The GIF files were then combined in GifBuilder 0.4.1, a freeware program available on the Internet. Total time for the project, including learning GifBuilder: about two enjoyable hours.
	The original picture of the mammoth is probably copyright by the US Post Office. If so, hope you don't mind my using it, Post Office. I am not charging for its use, and in fact I am publicising your stamps. So, no harm done, right? Also, I don't know the name of the original artist. I am trying to find out, so that I can credit the original drawing.
	Can I copyright the animation? If so, I hereby do: copyright 1996 Paul S. Boyer.
	If not, oh, well. In either case, you are free to use it if you like it, but please give me some credit: I get little enough these days.
(http://alpha.fdu.edu/~boyer/Woolly_Mammoth_animation.html)
	What’s striking is that Professor Boyer has a link for his students on the introductory web page of this course (http://alpha.fdu.edu/~boyer/HistEarthSpr98.html) to Fairleigh Dickinson University’s academic integrity policy.  Nowhere in that policy is a statement about faculty or student use of  copyrighted material.  The closest the policy comes is when it asks students to properly give credit to outside source material used in their projects.  Let us ask, then, with Professor Boyer, “Can I copyright the animation?”
	The answer is pretty clearly no, but why is this so?  Today, we’re going to look over the entire History of the Earth (the web site; I have only 45 minutes), and look at some copyright issues as they relate to distance education.

General Copyright Guidelines
	Georgia Harper, in “Copyright and the University Community: Developing a Comprehensive Copyright Policy,” says that
17 USC Section 201(a) vests ownership of copyright in a work with the author of the work. Section 201(b) provides that the employer or other person for whom a work-for-hire is prepared will be considered the author for copyright purposes. Works-for-hire are works created by employees within the scope of their employment, or by others pursuant to written contract, if the work created falls into one of the nine categories set out in the definition of work-for-hire in Section 101. 
(http://www.utsystem.edu/OGC/IntellectualProperty/admin2.htm)
	Georgia Harper, in “Copyright and the University Community: Developing a Comprehensive Copyright Policy,” says that
More often than not, the university does not own copyright in the works its faculty and students need to read. In the print world, this means the library must buy books and subscribe to journals. It also means that universities may need to acquire additional rights as well: With respect to print works, universities may need to:
•	Obtain permission to make photocopies 
•	Reserves 
•	Coursepacks 
•	Research, scholarship and private study 
•	Interlibrary loan and document delivery 
•	Administrative copies
•	Obtain permission to digitize, display, perform and distribute print works
With respect to licensed electronic works, universities may have to:
•	Obtain rights to make uses that are not covered by the access license; or 
•	Negotiate better access licenses that cover all anticipated educational uses
(http://www.utsystem.edu/OGC/IntellectualProperty/admin2.htm)
	Georgia Harper, in “Copyright and the University Community: Developing a Comprehensive Copyright Policy,” says that
	These are examples of the kinds of activities that probably require permissions of some sort on most campuses: 
	Photocopies. Many universities already license some or all of their copy center photocopying activities such as coursepacks; their interlibrary loan photocopying activities that exceed the copying permitted by Section 108; document delivery services; some reserve photocopies; and sporadically, other copies. 
	Digitizing, displaying and transmitting print works. As the demand for electronic reserves and course materials increases in the short to mid-term, libraries and faculty need permission to digitize and distribute print copyright materials through means such as the Internet when the amount used or the manner of presentation exceeds the bounds of fair use or other statutory exemptions. 
	Using digital works beyond the terms of an access license. Universities license increasingly large amounts of electronic information by acquiring it directly from the publisher or from a licensee of the publisher who has cumulated it into a database. If universities are not careful, however, they will find that they have acquired this material in a manner that precludes the uses they may be expected to accommodate. Careful attention to the details of software and database licenses is very important. 
(http://www.utsystem.edu/OGC/IntellectualProperty/admin2.htm)
	In “Fair Use Guidelines For Educational Multimedia,” Indiana University sets forth their policy:
There is no simple test to determine what is fair use. Section 107 of the Copyright Act sets forth the four fair use factors which should be considered in each instance, based on particular facts of a given case, to determine whether a use is a "fair use": (1) the purpose and character of 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 copyrighted work as a whole, and (4) the effect of the use upon the potential market for or value of the copyrighted work.
(http://www.indiana.edu/~ccumc/mmfairuse.html)
	In “Copyright and Fair Use in the Classroom, on the Internet, and the World Wide Web,” the University of Maryland University College says:
What are the Rules for Fair Use for Instructors?
Copying by teachers must meet the tests of brevity and spontaneity:
•	Brevity refers to how much of the work you can copy. 
•	Spontaneity refers to how many times you can copy. 
According to the rule, the need to copy should occur closely in time to the need to use the copies. I call this the "one semester rule." If you use something for one semester it is likely to be seen as fair use. If you use something repeatedly, it's less likely to be considered fair use. The expectation is that you will obtain permission as soon as it is feasible. Using something over a period of years is not within the spirit of the guidelines. 
•	The use of the copies should be for one course at one school.
•	The copies should include a notice of copyright acknowledging the author of the work.
What Can Be Copied?
•	A chapter from a book (never the entire book). 
•	An article from a periodical or newspaper. 
•	A short story, essay, or poem. One work is the norm whether it comes from an individual work or an anthology. 
•	A chart, graph, diagram, drawing, cartoon or picture from a book, periodical, or newspaper. 
•	Poetry: Multiple copies of a poem of 250 words or less that exist on two pages or less or 250 words from a longer poem. 
•	Prose: Multiple copies of an article, story or essay that are 2,500 words or less or excerpts up to 1,000 words or 10 percent of the total work, whichever is less. 
•	Illustrations: Multiple copies of a chart, graph, diagram, drawing, cartoon, or picture contained in a book or periodical issue. 
What Should Be Avoided?
•	Making multiple copies of different works that could substitute for the purchase of books, publisher's reprints, or periodicals. 
•	Copying the same works from semester to semester. 
•	Copying the same material for several different courses at the same or different institutions. 
•	Copying more than nine separate times in a single semester. 
When is Permission Required?
•	When you intend to use the materials for commercial purposes. 
•	When you want to use the materials repeatedly. 
•	When you want to use a work in its entirety and it is longer than 2,500 words.
(http://www.umuc.edu/library/copy.html)

Fair Use of Copyrighted Materials on the World-wide Web
	In “Fair Use Guidelines For Educational Multimedia,” Indiana University sets forth their policy:
These guidelines clarify the application of fair use of copyrighted works as teaching methods are adapted to new learning environments. Educators have traditionally brought copyrighted books, videos, slides, sound recordings and other media into the classroom, along with accompanying projection and playback equipment. Multimedia creators integrated these individual instructional resources with their own original works in a meaningful way, providing compact educational tools that allow great flexibility in teaching and learning. Material is stored so that it may be retrieved in a nonlinear fashion, depending on the needs or interests of learners. Educators can use multimedia projects to respond spontaneously to students' questions by referring quickly to relevant portions. In addition, students can use multimedia projects to pursue independent study according to their needs or at a pace appropriate to their capabilities. Educators and students want guidance about the application of fair use principles when creating their own multimedia projects to meet specific instructional objectives.
(http://www.indiana.edu/~ccumc/mmfairuse.html)
	In “Copyright and Fair Use in the Classroom, on the Internet, and the World Wide Web,” the University of Maryland University College says:
Copyright and Electronic Publishing
The same copyright protections exist for the author of a work regardless of whether the work is in a database, CD-ROM, bulletin board, or on the Internet.  If you make a copy from an electronic source, such as the Internet or WWW, for your personal use, it is likely to be seen as fair use.  However, if you make a copy and put it on your personal WWW site, it less likely to be considered fair use.  The Internet IS NOT the public domain. There are both uncopyrighted and copyrighted materials available. Assume a work is copyrighted. 
Tips for the Internet 
•	Always credit the source of your information 
•	Find out if the author of a work (e.g., video, audio, graphic, icon) provides information on how to use his or her work. If explicit guidelines exist, follow them. 
•	Whenever feasible, ask the owner of the copyright for permission. Keep a copy of your request for permission and the permission received. 
Definitions
The guidelines are intended to apply to educational multimedia projects that incorporate educators' original material, such as course notes or commentary, together with various copyrighted media formats, including motion media, music, text material, and graphics illustrations. 
•	The guidelines are voluntary and do not have the force of law. 
•	If you follow the guidelines, it is highly likely that your use is fair use. 
•	The guidelines are safe minimums. 
•	The newly created work that includes copyrighted material may only be used for learning activities. Other uses, such as selling the work commercially, require permission. 
Faculty Guidelines
Faculty may include portions of copyrighted works when producing their own multimedia project for their teaching in support of curriculum-based instructional activities at educational institutions.  Faculty may use their project for: 
•	assignments for student self-study 
•	for remote instruction provided the network is secure and is designed to prevent unlawful copying 
•	for conferences, presentations, or workshops 
•	for their professional portfolio 
Time Restrictions
The fair use of copyrighted material in multimedia projects lasts for two years only. After two years, obtain permission before using the project again.  Types of media and permissable amounts:
•	Motion media: Up to 10 percent of the total or three minutes, whichever is less. 
•	Text material: Up to 10 percent of the total or 1,000 words, whichever is less.  An entire poem of less than 250 words may be used, but no more than three poems by one poet or five poems by different authors in an anthology. For poems exceeding 250 words, 250 words should be used but no more than three excerpts from one poet or five excerpts from different poets in the same work 
•	Music, lyrics, and music video: up to 10 percent of the work but no more than 30 seconds of the music or lyrics from an individual musical work.
•	Illustrations or photographs:  no more than five images from one artist or photographer.  no more than 10% or 15 images, whichever is less, from a collection. 
•	Numerical data sets: up to 10 percent or 2,500 fields or cell entries, whichever is less, from a copyrighted database or data table.
•	Copying of a multimedia project: no more than two copies may be made of a project.
(http://www.umuc.edu/library/copy.html)
	In “Fair Use Guidelines For Educational Multimedia,” Indiana University sets forth their policy:
3.2 Educator Use for Curriculum-Based Instruction:
Educators may perform and display their own educational multimedia projects . . . for curriculum-based instruction to students in the following situations: 
3.2.1 for face-to-face instruction, 
3.2.2 assigned to students for directed self-study, 
3.2.3 for remote instruction to students enrolled in curriculum-based courses and located at remote sites, provided over the educational institution's secure electronic network in real-time, or for after class review or directed self-study, provided there are technological limitations on access to the network and educational multimedia project (such as a password or PIN) and provided further that the technology prevents the making of copies of copyrighted material. 
3.3 Educator Use for Peer Conferences:
Educators may perform or display their own multimedia projects created under Section 2 of these guidelines in presentations to their peers, for example, at workshops and conferences. 
3.4 Educator Use for Professional Portfolio
Educators may retain educational multimedia projects created under Section 2 of these guidelines in their personal portfolios for later personal uses such as tenure review or job interviews. 
(http://www.indiana.edu/~ccumc/mmfairuse.html)

Fair Use of Student Work and Written Communications
	The University of North Texas has an especially good set of guidelines for how an instructor can use his students’ work in his distance-edcuation materials:
1.	A student owns the copyright for all work e.g. software, photographs, reports, presentations and  email postings he or she creates within a class and the University is not entitled to use any student work without the student’s permission unless all of the following criteria are met:
a.	The work is used only once. 
b.	The work is not used in its entirety. 
c.	Use of the work does not affect any potential profits from the work. 
d.	The student is not identified. 
e.	The work is identified as student work. 
2.	If the use of the work does not meet all of the above criteria, then the Universityoffice or department using the work must obtain the student’s written permission.  
3.	If instructors of videotaped classes would like to use the entire class or some sessions for future use then a clause must be inserted into the instructor’s syllabus which reads, “ Tapes of the class or some sessions may be retained and used in future course offerings.” 
4.	No permission is needed from a student for their image or voice to be transmitted live via videoconference or streaming media, but all students should be informed when courses are to be conducted using either method of delivery.  
5.	In order that instructors may use a web-based instrument with “I agree,” “I do not agree buttons” similar to software licensing agreements to gain student’s permission for use of student work, the following statement should appear at the webpage which provides entry to all UNT’s WebCT courses “By entering a course, you are signifying that you have read and agreed to all applicable guidelines, policies, regulations and rules set forth  in the UNT Student Handbook and the Code of Student Conduct."        
(http://www.unt.edu/cdl/services/studentrights.htm)
	In “Copyright and Fair Use in the Classroom, on the Internet, and the World Wide Web,” the University of Maryland University College says:
Students may incorporate portions of copyrighted materials when producing a project for a specific course. Students may perform and display their own projects and use them in their portfolio or use the project for job interviews or as supporting materials for application to graduate school.
(http://www.umuc.edu/library/copy.html)

How Do We Put This into Practice?
	The firm of Lutzker & Lutzker has published a brief for the ALA about the Digital Millennium Copyright Act.  Of particular interest to distance-ed administrators is this information:
A special exception has been created for public and nonprofit institutions of higher education, which allows them to qualify for the limitation even when the offending user is a member of the faculty or a research graduate student. The law also gives immunity from third party user claims, provided there is a good faith compliance with the statutory rules. It should also be borne in mind that it is not necessary to actively monitor material on the Internet. The limitation requires an OSP to take action when it has "actual knowledge" of an infringement (by facts brought to its attention or by notice from the copyright owner), but it does not impose the burden on the OSP to monitor or discover infringing behavior.
(http://www.ala.org/washoff/osp.html)
This essentially means three things:
1.	Faculty and administrators are not liable for the copyright infriengement of third parties when students are given access to materials off-site which violate copyright law.
2.	Faculty and administrators are responsible for indentifying and choosing those resources in compliance with copyright law, and for refusing to use those resources known to be in violation of copyright law.
3.	Faculty and administrators are expected to enforce adherence of copyright law among their students during their courses.
	In “Fair Use Guidelines For Educational Multimedia,” Indiana University sets forth their policy:
6.1 Caution in Downloading Material from the Internet
Educators and students are advised to exercise caution in using digital material downloaded from the Internet in producing their own educational multimedia projects, because there is a mix of works protected by copyright and works in the public domain on the network. Access to works on the Internet does not automatically mean that these can be reproduced and reused without permission or royalty payment and, furthermore, some copyrighted works may have been posted to the Internet without authorization of the copyright holder. 
6.2 Attribution and Acknowledgement
Educators and students are reminded to credit the sources and display the copyright notice © and copyright ownership information if this is shown in the original source, for all works incorporated as part of the educational multimedia projects prepared by educators and students, including those prepared under fair use. Crediting the source must adequately identify the source of the work, giving a full bibliographic description where available (including author, title, publisher, and place and date of publication). The copyright ownership information includes the copyright notice  (©, year of first publication and name of the copyright holder). 
	The credit and copyright notice information may be combined and shown in a separate section of the educational multimedia project (e.g. credit section) except for images incorporated into the project for the uses described in Section 3.2.3. In such cases, the copyright notice and the name of the creator of the image must be incorporated into the image when, and to the extent, such information is reasonably available; credit and copyright notice information is considered "incorporated" if it is attached to the image file and appears on the screen when the image is viewed. In those cases when displaying source credits and copyright ownership information on the screen with the image would be mutually exclusive with an instructional objective (e.g. during examinations in which the source credits and/or copyright information would be relevant to the examination questions), those images may be displayed without such information being simultaneously displayed on the screen. In such cases, this information should be linked to the image in a manner compatible with such instructional objectives. 
6.3 Notice of Use Restrictions
Educators and students are advised that they must include on the opening screen of their multimedia program and any accompanying print material a notice that certain materials are included under the fair use exemption of the U.S. Copyright Law and have been prepared according to the multimedia fair use guidelines and are restricted from further use. 
(http://www.indiana.edu/~ccumc/mmfairuse.html)

Subject: Illustration Essay Interview
Date: Thu, 23 Mar 2000 07:55:40 -0500
From: Marie Murphy <mdetesta@wpa.net>
To: tobint@wccc.westmoreland.cc.pa.us

Mr. Tobin

I need a little help.  Who better than the professor who helps with the online classes at my school. 

My essay is about the "Rapid Growth of the Internet" and I am interested in information about the online classes offered at WCCC.  Would you answer a few questions for me?

1. When did the online classes begin at WCCC?
2. How many classes were offered?
3. How many students were enrolled?
4. How many classes were offered for the 1999-2000 term? The Course Guide lists 26 but I was not sure if that was accurate.
5. How many students are enrolled this term?

Please remember this is an interview and your information could be used in an important ENG161 essay assignment. HA! HA!

Thanks for any help you can give.

Marie
Figure 1

Figure 2

Figure 3

Figure 4