Copyright, Distance Copyright, Distance Learning, and Digital MediaLearning, and Digital Media

Barbara M. WaxerDelgado Community College

January 9, 2007

Know the law, empower your students… and breath easier

OverviewOverview Myths we love Copyright 101 Online and distance education Finding work you and your students

can use

2

MythsMyths You can use anything you can

download from the Internet You can use any amount of any work

as long as it’s for class If a work does not contain the

copyright symbol ©, it is not protected by copyright

As long as you’re not making a profit, you can use copyrighted materials in class

3

MythsMyths If you change an original enough, then

you can consider it a new work you created

You can use anything as long as you give credit

If you buy a book or movie, you can digitize it and use it however you want

No one will find out or come after little old you

4

TRUE orTRUE or The sole purpose of copyright protection

is to protect an author’s exclusive rights to their work [The goal is to] promote the Progress of

Science and useful Arts. To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This result is neither unfair nor unfortunate.”

―Justice Sandra Day O'Connor

5

FALSEFALSE

Copyright FundamentalsCopyright Fundamentals Authority to establish Copyright

Law comes from the US Constitution

Is a balance between the interests of owners/authors with interests of the public

Gives authors exclusive rights to control over how their work can be used

6

Copyrightability FactorsCopyrightability Factors Expression: a person’s unique

output Photography, writing, music, dance

Originality: some modicum of creativity Not necessarily novel or unique

Fixation: established in a tangible medium The work exists and can be experienced

7

CopyrightabilityCopyrightability

8

Protected WorksProtected Works Literary works Musical works, including any

accompanying words Dramatic works, including any

accompanying music Pantomimes and choreographic works Pictorial, graphic, and sculptural works Motion pictures and other audiovisual

works Sound recordings Architectural works

9

Works Not ProtectedWorks Not Protected Ideas, processes, systems Facts themselves v. selection and

arrangement Public domain Federal government publications Titles, names, short phrases,

slogans May be eligible for trademark

protection

10

Scenes Scenes àà Faire Faire & & Merger Doctrine Merger Doctrine

11

Haunted House = scary storyCowboy = Old West

Variations on a Zoom Tool from different applications

You write a story about You write a story about your vacation–at what your vacation–at what point is it protected by point is it protected by copyright?copyright?A) When you first think of itB) When you write it downC) When you register it with the

Copyright OfficeD) When you present it in class

12

Start and DurationStart and Duration Copyright attaches as soon as work

is created - Automatic Scribbled, drawn, keystroked, recorded

Generally, copyright lasts the life of the author plus 70 years

Registration and notice not required but provide warning to world and special legal protections © Copyright symbol no longer required

on a work

13

Term of CopyrightTerm of Copyright

14

or FALSEor FALSE The following statement is an official

statement made by a member of Congress:

“Copyright should last forever minus one day”

— Mary Bono, widow of Sonny, who sponsored the CTEA

15

TRUETRUE

Copyright OwnershipCopyright Ownership Vests initially in author or authors of

work Work made for hire

Work prepared by an employee within scope of employment

Work specifically ordered or commissioned and contract says so

Employer or person for whom work prepared is considered author Academic Exception cloudy, especially with online

classes Technological solutions (DMCA and DRM)

16

Rights of Copyright OwnersRights of Copyright Ownerssection 106section 106

17

Limitations to Exclusive RightsLimitations to Exclusive Rights

Fair Use (section 107)Libraries and Archives (section 108)

First Sale Doctrine (section 109) Copyright does not transfer to the buyer

when you buy a book, CD, or DVD—the sale transfers only the physical copy to you

Educational exception for certain activities (section 110)

18

19

Fair UseFair Use Purposes include:

Criticism Comment News reporting Teaching (including multiple copies for

classroom use) Scholarship Research

20

Fair Use FactorsFair Use Factors Factors include but are not limited to:

Purpose and character of use (commercial v. nonprofit educational purposes)

Nature of the copyrighted work (fact v. fiction)

Amount and substantiality of the portion used in relation to the copyrighted work as a whole

Effect of the use on the potential market for or value of the copyrighted work

Fair UseFair Use Decided in courts on case-by-case basis

No set formula Educational safe harbor guidelines -

CONTU Minimum not maximum standards of

educational fair use Brevity, spontaneity, cumulative effect

Fair Use argument legally trumps any guidelines But will educational institution agree to

defend

21

22

How much can I copy?How much can I copy?

InfringementInfringement Violating one of the exclusive rights

granted to a copyright owner Making unauthorized use of a work

Damages can be up to $150,000 for each instance of willful infringement

Intent of the infringer is not a defense

Ignorance of the law is not a defense

23

Proving InfringementProving Infringement

24

Infringement ScenariosInfringement Scenarios

25

26

InfringementInfringement

27

Dost Thou Infringe?Dost Thou Infringe?

28

Dost Thou Infringe?Dost Thou Infringe? http://ccnmtl.columbia.edu/projects

/law/library/cases/case_campbellacuff.html

29

A Mouse or THE Mouse?A Mouse or THE Mouse?

30

Dost Thou Infringe?Dost Thou Infringe?

If a work is in the public If a work is in the public domain:domain:

A. You can create a derivative work from it only if no one else does so first

B. You can use it however you wantC. You can only use it onceD. It must be very old

31

Public DomainPublic Domain Works no longer protected by

copyright Copyright expired or lost over time or

by circumstance Work donated to public domain

Can use and modify work in the public domain however you wish

Generally, works created before 1924 are in the public domain

32

33

Can I Use It? Decision ChartCan I Use It? Decision Chart

Some consider the laws Some consider the laws guiding online education to:guiding online education to:

A. Limit copyright protectionB. Expand copyright protectionC. Clarify copyright protectionD. Confound the entire concept

34

TEACH ActTEACH Act Deals exclusively with virtual classroom Purpose is allow some copying

Still based on live classroom paradigm Focus is on centralized policy Duties of institutional policymakers

Accredited nonprofit institution Establish copyright policy and inform staff,

faculty, and students Inform students that materials are protected Only for enrolled students

35

Duties of IT StaffDuties of IT Staff Provide limited access Ensure technological controls on

storage and dissemination Cannot interfere with controls in

digitally protected work Ensure limited copy retention Ensure limited long-term retention

36

Duties of InstructorsDuties of Instructors Engage in decision making based on

tradition of academic freedom Types of work expanded for transmittal

All of a non-dramatic literary or musical work

Reasonable and limited portions Amounts comparable to typical face-to-face

displays Work an integral part of the class

session Reasonable portions of work used

37

Duties of InstructorsDuties of Instructors Explicitly excluded

Commercial works sold or licensed for purposes of digital distance education

Works suspected to be unlawfully acquired

E-coursepacks E-reserves allowed Limit works to what would be used

or displayed in a live classroom

38

Checklist for ComplianceChecklist for Compliance

https://www.cu.edu/ip/copyright/downloads/TeachActChecklist.pdf http:// www.copyright.iupui.edu/teachlist.htm http:// fp.uni.edu/teachact/checklist.htm http://www.lib.ncsu.edu/scc/legislative/teachkit/

expanded_checklist.pdf39

40

Finding MaterialFinding Material Get permission from copyright

holder Conform to terms of use Use sites that include public

domain works Use site that include flexible

copyright licenses Creative Commons

Use compilations

Seeing the phrase “for Seeing the phrase “for educational use only” on educational use only” on two Web sites tells you:two Web sites tells you:A) You can use material from both

sites if you are an instructorB) You can use material from both

sites if you are a studentC) You should find out what each

Web site means by educational use

D) You can use material from both sites in any instructional setting

41

42

TermsTerms of Useof Use

43

44www.course.com/downloads/illustrated/copyright/onlineresources.cfm

ResourcesResources Audio

A1FreeSounds The Free Sound Project

Music Looperman Internet Archive

Video Blip TV Library of Congress

Photos Flickr – includes Creative Commons search capability MorgueFile Stock xchng

45