RAMCT: COPYRIGHT AND FAIR USE IN

ON-LINE INSTRUCTIONLinda Schutjer

Senior Associate Legal Counsel

Colorado State University System

WHAT IS COPYRIGHT?

Copyright is a form of protection provided by the laws of the United States to authors of original works of authorship.

It is available for both published and unpublished works.

It generally gives the owner of the copyright exclusive rights to the work for a period of time before the work goes into the public domain.

WHAT DOES COPYRIGHT PROTECT?

Original Works of Authorship – A Person’s Unique Way of Saying

SomethingFixed in a Tangible Medium – Does

not have to be directly perceptible as long as it can be communicated with the aid of a machine or device

COPYRIGHT EXEMPTIONS

§107 - Fair Use Doctrine§109 - First Sale Doctrine§110 – Education

Exemptions 110(1) – Classroom or face-to-face teaching 110(2) – TEACH – distance education

FOUR FACTOR FAIR USE TEST

Purpose and character of the useNature of the copyrighted workAmount and importance of part

usedEffect on the potential market for

or value of the copyrighted work

WHAT IS THE PURPOSE OF THE PROPOSED USE?

Not for Profit Teaching Research/Scholarship Criticism Commentary/

Reporting Parody Transformative Restricted Access

For Profit Commercial Entertainment Lack of Attribution Bad Faith Behavior

Favors Fair Use: Does Not Favor Fair Use:

WHAT IS THE NATURE OF THE WORK TO BE USED?

Factual Published Not Copyrightable:

Listings of ingredients/contents, directions

Ideas, concepts, methods, processes

Works authored by the US Government

Creative Entertainment Consumable Materials

(workbooks, answer sheets)

Favors Fair Use: Does Not Favor Fair Use:

HOW MUCH OF THE COPYRIGHTED WORK WILL BE USED?

Small amount Only as much as

necessary for the educational purpose

Only used for a limited period of time

Large portion or entire work

Most important or significant portion – the heart of the work

Used year after year

Favors Fair Use: Does Not Favor Fair Use:

WHAT IS THE EFFECT ON THE MARKET OR POTENTIAL MARKET FOR THE WORK?

User owns lawfully acquired copy

No significant effect on market

Copyright holder not able to be identified or located

Item out of print or otherwise not available for purchase

Replaces sale of copyrighted work

Numerous copies made

Use makes copy publically available on the internet

Copyright permission readily available

Favors Fair Use: Does Not Favor Fair Use:

FIRST SALE DOCTRINE

Section 109 allows for the sale of a copyrighted work without transferring the underlying copyright.

Once you have bought a physical copy of a copyrighted work, you can re-sell that work without it constituting a violation of the author’s copyright.

In most cases you can even make new works that incorporate the physical work you bought without violating the author’s copyright – e.g. incorporate physical books into a piece of sculpture.

CLASSROOM TEACHING EXCEPTION

Instructors and students at a non-profit educational institution may use, display, and/or perform in a classroom environment any copyright-protected material or work

PROVIDED THAT:

The work used was legally obtained The intended use of the work is strictly educational Distribution is in a location designed primarily for

educational purposes Teaching and learning occur simultaneously (e.g.

not a recording)See TILT Guide: Copyright Essentials for Educators

TEACH ACT

Technology, Education and Copyright Harmonization Act of 2002

Total revision of distance education exemption

Attempts to equalize distance education and classroom teaching

TEACH ACT

§110(2) – Distance education – digital transmissions of displays of

works via digital networks, including still images, in amounts comparable to typical face to face teaching which transmissions are made to students officially enrolled in the class no matter where the students are located

TEACH ACT (CONT.)

Performances of the following are allowed to be transmitted:An entire non-dramatic literary or musical work Readings from novels, poetry and textbooks

Pop music, symphonies“Reasonable and limited” portions of other worksDramatic worksAudiovisuals

REASONABLE AND LIMITED?

“Although what constitutes a ‘reasonable and limited portion’ of a work is not defined in the statute, the legislative history of the Act suggests that determining what amount is permissible should take into account the nature of the market for that type of work and the instructional purposes of the performance. For example, the exhibition of an entire film may possibly constitute a ‘reasonable and limited’ demonstration if the film’s entire viewing is exceedingly relevant toward achieving an educational goal; however, the likelihood of an entire film portrayal being ‘reasonable and limited’ may be rare.” Congressional Research Service Report

http://assets.opencrs.com/rpts/RL33516_20060706.pdf

TEACH ACT REQUIREMENTS

InstitutionTechnologyInstructorMaterials

INSTITUTION REQUIREMENTS

Accredited nonprofit educational institution

Institute copyright policiesProvide informational materials to

faculty, staff and students on compliance with copyright laws

Provide notice to students that course materials may be subject to copyright protection

TECHNOLOGY REQUIREMENTS

Transmission of content limited to students officially enrolled in the course

Content cannot be retained longer than “class session,” which is not defined

Institution should take technological measures to restrict use of content in violation of law

Cannot interfere with technology control measures

No material can remain on the system longer than necessary to facilitate transmission

May retain copies of transmissions provided only used such materials in compliance with law (i.e. TEACH act)

INSTRUCTOR REQUIREMENTS

Performance or display of materials must be made by, at the direction of, or under actual supervision of an instructor

The instructor must use the materials as an integral part of a class session which is offered as a regular part of systematic, mediated instructional activities

The materials used by the instructor must be directly related to teaching content – not for entertainment

Instructor must use lawfully made and acquired copy

MATERIAL REQUIREMENTS

“Digital Educational Work” -- Textbooks or other material in any media which are typically purchased by students for use in one or more class sessions may not be used pursuant to the TEACH Act provisions

Analog works cannot be converted into digital unless: No digital version is available or A digital version exists but cannot be accessed because it

is secured by a technological protection measure that prevents access

Amount converted is limited to the amount that is otherwise permitted to be used under the TEACH Act

Always include copyright notices/attributions on materials

LINKS:

Links – You can generally link to materials in your courses. Of course, review the website terms and conditions before you do to make sure you comply with any special requirements they have. You should provide the hyperlink so that it is clear that it is a link to materials outside of the class, as “framing” can be a problem. Generally, you won’t be liable for any infringement represented in the materials you link to – unless you are aware of the infringement and link anyway. That is another reason to link via the web link rather than drawing the materials into your actual course.

http://www.bitlaw.com/internet/linking.html

INSTRUCTOR / STUDENT CREATED MATERIALS:

Author is the owner under CSU policy so if you are not the Author, you will need to treat works by students or other faculty or staff just as if it was third party materials

If you do create your own materials, if they include third party images or audio, you will need to consider whether Fair Use or the TEACH Act support your use or whether you need to get permission from the copyright owner

AUDIO/VIDEO:

Audio – Two Clearances Required: Musical Composition -- notes, lyrics and melodies

Copyright(s) usually owned by the music publisher Sound Recording – captured performance

Copyright usually owned by the recording company

Video – One Clearance – unless audio is included or other copyrighted works shown or used

Sampling is not “legal” Your use must be with permission or within an

exception such as fair use, classroom use or the TEACH Act

HTTP://CCS.COLOSTATE.EDU

COPYRIGHT RESOURCES:

US Copyright Office: http://www.copyright.gov/

Two Good Sources for Broad Range of Information:

http://www.utsystem.edu/ogc/intellectualproperty/cprtindx.htm

http://www.lib.unc.edu/copyright/

Public Domain/Copyright term chart: http://copyright.cornell.edu/resources/publicdom

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