Fair and Ethical Use of Information Adapted for the 2007 Institute for Technology Assisted Learning. Draws upon prior presentations and works by Susan

Fair and Ethical Use of Information

Adapted for the 2007 Institute for Technology Assisted Learning. Draws upon prior presentations and works by Susan Beck, Molly Molloy, and Norice Lee, Library; James Caufield and the NMSU Plagiarism Task Force; Mark E. Workman, Office of Distance Education/Extended Learning, and Bruce Kite, Office of General Counsel, New Mexico State University

Legal Background & Educational PracticesBackground on Copyright and Fair UseExemptions and ComplianceDE Delivery Modes: Special ConsiderationsCopyright Infringement

Helping StudentsEncouraging Good PracticeMinimizing Plagiarism

Session Outline

• Scholarly Process – faculty both produce and consume research that may be copyrighted

• Pros/Cons of Digital Age – can more easily access and disseminate resources, can also increase liability in cases of infringement

From Copyright Law in the Electronic Environment - Georgia Harper, General Counsel,

University of Texas System

Exemptions & Compliance

Why Should We Care?

• Balancing intellectual property with “work for hire” NMSU Intellectual Property policy: http://research.nmsu.edu/docs/IP/intelPropPP.html

• Protecting access to scholarship – faculty authors surrender copyright to their research; libraries “buy back” research products at greatly inflated costsCreate Change: http://www.createchange.org

From Copyright Law in the Electronic Environment - Georgia Harper, General Counsel, University of Texas System


Why Should We Care?

• A balance between the rights of the author and the need for a democratic society to have access to information.

Protects authors encourages productionProtects access to information encourages flow of ideas

• Both are necessary to meet the rationale for copyright law as stated in the Constitution: “To promote the progress of science and the useful arts.”

-Gretchen McCord Hoffman. Copyright in Cyberspace: Questions and Answers for Librarians. NY: Neal-Schuman, 2001, p.4.

Background on Copyright & Fair Use Copyright: The Basic Rationale

• Defined basic rights of copyright holders, • Codified doctrine of fair use• Converted the term of copyrights from a fixed period

requiring renewal to an extended period based on the date of the creator's death.

• Amended in 1992 to offer automatic copyright renewal. Also, for works protected by copyright before 1978, their reversion to public domain greatly curtailed.

Background on Copyright & Fair Use Copyright Act of 1976

Sonny Bono Copyright Term Extension Act - 1998– Life of author + 70 years (was life + 50 years)– Limited exceptions for libraries and other non-profit educational

institutions to treat works as public domain.

Digital Millennium Copyright Act - 1998– Greater protections for the software & entertainment industries – Greater restrictions to public access usually favored by scientists,

librarians and academics.

Technology Education and Copyright Harmonization (TEACH) Act - 2002– Pertains to transmissions of performances and displays of copyrighted

materials, such as those used in distance education courses.

Background on Copyright & Fair Use Copyright Revisions: Post 1976

When does copyright occur?• Begins from the time the work is created in fixed form, be it

published or unpublished.• Creator of the work immediately holds the copyright.• Possible exception of “work for hire” (§101)

Exclusive rights granted to copyright owners• Reproduce the Work or Make Derivative Copies• Distribute and/or Sell Copies• Perform or Display the Work Publicly

1976 Copyright Act, §106


How Does it Work?


What Is and Is Not Protected?

• Literary works• Musical works• Dramatic works• Motion pictures and other A.V.• Sound recordings• Architectural works

PROTECTED

• Works not fixed in a tangible form of expression

• Titles, names, slogans, familiar symbols, ingredients, etc.

• Ideas, procedures, methods, systems, concepts, etc.

• Works consisting entirely of “common property” information such as calendars

NOT PROTECTED

• Since the 1989 Berne Convention, use of a copyright notice is no longer required.

• Copyright notice will defeat a claim of “innocent infringement”.

• Some may argue that information posted on the Internet implies consent.


Copyright Notice

§107: Fair Use§108: Library & Archival Copying§109(a): First Sale Doctrine§109(c): Exception for Public Displays§110: Displays & Performances in F2F Teaching§110(2): Displays & Performances in DE§117: Computer Software§120: Architectural Works§121: Special Formats for Persons with Disabilities


Copyright Exemptions

Four Factor Test

1. The Purpose and Character of the Use

2. The Nature of the Copyrighted Work

3. The Amount and Substantiality of the Portion Used in Relation to the Whole

4. The Effect of the Use Upon the Potential Market for, or Value of, the Original Work


Fair Use Doctrine

Scenario 1: In a class last semester, one of my students created a PowerPoint presentation that I want to use in my online course this semester. She has given me permission to use it, so I can upload it into the course.

Adapted from Washburn University copyright course for faculty: http://www.washburn/edu/copyright/faculty/online-courses.html


Scenarios: Fair Use or Violation?

Compliance! While the student’s work would be considered copyrighted, you did contact the student and ask for permission. You may post it to course content, but you should add a notice of the author’s name and that you have permission to reproduce it. Also, it would be best to get a signed release form to post any student work to the Web (including online courses).




Scenario 2: A history teacher taped the original ABC news report showing Richard Nixon leaving the White House after he resigned. She made it at home on her personal VCR and used her own tape. She uses the entire news program every year in her classroom. This is fair use.

Adapted from California State University Sacramento copyright tutorial:

http://www.csus.edu/indiv/p/peachj/edte230/copyright/quiz.htm



Violation! Congress holds that videotapes of publicly broadcast shows can only be shown for 10 days afterwards unless the copyright holder grants greater allowances for educators. By this point, she should have asked permission or purchased the tape. Note: exceptions are granted by some educational programs such as Bill Nye, the Science Guy.

Adapted from California State University Sacramento copyright tutorial:

http://www.csus.edu/indiv/p/peachj/edte230/copyright/quiz.htm



Scenario 3: For my course on ancient Egypt, I want to use some copyrighted photos of the burial chamber of Tutankhamun to discuss death rituals. I can use them without permission.




Compliance! Although the law prior to the TEACH Act may not have allowed the use of copyrighted images without permission, the TEACH Act states that one may display "a work in an amount comparable to thatwhich is typically displayed in the course of a live classroom session.” Considerations: How many images will you use? Will you use them in successive courses?




Scenario 4: I read an interesting article in this morning’s paper and decided that it would be a good part of this week’s discussion. I can copy the article to my course site for my students’ use.




Grey Area: The easiest way to make the article available would be to create a link to it from your course or to see if it is available through a Library database. Considerations: spontaneity of use, availability of material (is course restricted only to students?), will you use again in the future? Also, include notice of copyright.




They do NOT have the force of law behind them

Have not been enacted into law by Congress

Have not been adopted as a binding standard in any court decision.

They DO help us answer common fair-use questions

Provide “good faith” practices that help us comply

Negotiated by private, interested, and often conflicting parties (libraries, publishers, societies, etc.)


Copyright Guidelines

Distance Education Delivery Modes

Considerations

Is the class face-to-face?Is the access restricted to current

students?

Examples:

WebCT, Centra, ITV Classroom,

PROTECTED

Is the class on an open web site?Is the class transmitted through

some form of open broadcast medium?

Examples:

Cable or Open Air TV, Satellite, Open class websites, radio broadcasts

UNPROTECTED

You work at an accredited nonprofit educational institution with a copyright use policy Your institution makes educational materials on copyright available The work is not a digital educational work and is lawfully made and acquired The work is integral to class sessions and directly related to teaching The work is part of systematic and mediated instructional activities Non-dramatic literary or musical works = you may use all Any other work = you may use reasonable and limited portions Reception must be limited to students enrolled in course with reasonable

downstream controls instituted Do not retain work longer than class session or disseminate beyond recipient(s) Provide warning notices to students

Adapted from North Carolina State University – TEACH Toolkit - http://www.lib.ncsu.edu/scc/legislative/teachkit


Teach Act Checklist

The Notice to StudentsThe Notice to Students

The materials on this course Web site are only for the use of students enrolled in this course for purposes

associated with this course and may not

be retained or further disseminated.

Distance Education Delivery ModesWhat’s Missing From Some NMSU Classes?

• Are you using software packages?• Are you using purchased video courses?• Are you using e-Packs?• Are you using prerecorded music?• Are you using audio clips?

If your answer is If your answer is YESYES to any of the above, to any of the above, then read the fine print!then read the fine print!


Beyond Copyright - Licenses

Access works in the public domain. Consider “copyleft” or “tiered” protections. Access existing Library materials (PURLs,

ereserves). Obtain permissions (or use Library services that

obtain permissions for you). Restrict access to content


Alternatives

Step 1: Select the Work

Step 2: Permission Required?

Step 3: Obtain Permission

Step 4: You’ve Hit “Dead End”

See: IUPUI Copyright Management Center-Permissions Information


Steps in Seeking Permission


Copyright Clearance Center


Obtaining Sample Price Quote

• Educate yourself.• Practice in good faith …Don’t willfully infringe!• Be consistent in your practices.• Keep detailed records of permissions

sought/obtained.• Proactively seek legal and/or other expert

advice if questions arise.


Safe Harbor

Strict Liability– Innocent $200

Actual Losses– Hard to prove– May be few

Statutory Damages– $750 - $30,000 per infringed copyright– $150,000+ per willful infringement

Other Damages– Court Costs– Fees– Injunction– Imprisonment

Copyright Infringement

Damages

Why do students plagiarize?Why do students plagiarize?

• Lack of timeLack of time• Path of least resistancePath of least resistance• Internet pastiche (Edland, Cal State L.A.)Internet pastiche (Edland, Cal State L.A.)• Unfamiliar with documentation practicesUnfamiliar with documentation practices

Helping Students

Understanding Problems

Helping Students

Resourceshttp://lib.nmsu.edu/instruction/plagiarism

Discuss Plagiarism with Your StudentsDiscuss Plagiarism with Your Students• Include a statement in your syllabus, for instance the NMSU definition of Include a statement in your syllabus, for instance the NMSU definition of

plagiarism and inform students of consequences.plagiarism and inform students of consequences.• Clarify how much collaboration is allowed.Clarify how much collaboration is allowed.• Present examples of plagiarism and show how to correct them. Present examples of plagiarism and show how to correct them. • Model proper citation strategies. Model proper citation strategies.

Design Assignments to Minimize PlagiarismDesign Assignments to Minimize Plagiarism• Specify the number and type of sources needed. Specify the number and type of sources needed. • Require students to submit copies of articles and brief selections from Require students to submit copies of articles and brief selections from

books. (Students should be informed of this requirement early on). books. (Students should be informed of this requirement early on). • Incorporate instruction in library research skillsIncorporate instruction in library research skills• Require multiple drafts Require multiple drafts • Consider oral presentations where students demonstrate their Consider oral presentations where students demonstrate their

understanding of the topic. understanding of the topic.

Helping StudentsSample Tips from

http://lib.nmsu.edu/instruction/plagiarism

Documents

Fair and Ethical Use of Information Adapted for the 2007 Institute for Technology Assisted Learning. Draws upon prior presentations and works by Susan