Copyright in the Digital Age

National Business Education Association

Workshop Topics

• What is Copyright?

• Copyright Law and Teaching

• Fair Use Essentials

Is Copyright Important Now?

• Intellectual products fuel US economy

• Accounts for about 1/3 of the market value for all U.S. Stocks--$5 trillion to $5.5 trillion

• 42% of the US GDP

The Economic Value of Intellectual PropertyRobert J. Shapiro and Kevin A. HassettOctober, 2005

What is Copyright?

• A system that protects “original works of authorship fixed in any tangible means of expression, now known or later developed, from which they can be perceived, reproduced or otherwise communicated directly or with the aid of a machine or device.”

Three Fundamental Concepts

• Fixation Tangible form others

can perceive

• Originality Work created by

author

• Eligibility Within defined

category of works

What is Protected?Direct from Title 17, §102, U.S. Code

• Literary Works• Musical Works• Dramatic Works• Pantomime and choreographic works• Pictorial, graphic and sculptural works• Motion Picture and other audiovisual works• Sound recordings• Architectural Works• Computer Software

What is not Protected?

• Ideas, concepts, discoveries

• Titles, names, short phrases, slogans

• Works not fixed in tangible medium

• Works commonly available

• Works with no originality

• Most U.S. Government works

The Copyright Owner’s Exclusive Rights Under §106

• The right to reproduce the work• The right to create a derivative work• The right to distribute copies• The right to perform the work publicly• The right to display the work publicly

Who Owns the Copyright?

• Copyright exists from the time it is created in a fixed tangible expression

• The copyright for the work of authorship becomes the property of the author who created the work

• Only the author or those deriving the rights through the author can claim the copyright.

Who owns the Copyright? (con’t)

• Works made for hire: An employer may own the works created by the author while in his employ

• Joint works: Two or more authors can own a work together

Violation of Rights

• The reproduction, republishing or redistributing of a work belonging to a copyright holder without permission constitutes copyright infringement

• You may be violating or infringing on his/ her

rights under the Copyright Act.

What About Infringement?

• A copyright infringement takes place when the exercise of any of the exclusive rights of the copyright owner takes place without his permission

What can happen if infringement is found?

• A copyright owner may be able to recover financial compensation for his loss, including:

– Compensation for loss of profits

– Statutory damages

– Injunctive relief

Criminal Penalties for Infringing

• Criminal penalties may also apply if the work has been willfully copied for profit or financial gain

Balancing Needs of Owners and Users

• Built into copyright law are some common sense provisions

The Fair Use Statute Title 17, §107, US Code

“Not withstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified in that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”

Fair Use Statute: Four Factors

In determining whether the use made of a work in any particular case is a fair use, the factors to be considered shall include—.”

Fair Use Statute: Four Factors

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational uses(2) the nature of the copyrighted work;

Fair Use Statute: Four Factors

(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.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon the consideration of all the above factors.”

Exceptions for the Use of Materials in an Educational

Setting • Section 110 of the Copyright Act outlines

provisions for the performance and display of copyright-protected content in the classroom so long as certain requirements are met.

• Section 110 (1) allows for the performance and display of copyright-protected works in face-to-face classroom settings, with some specific limitations related to the use of motion pictures.

Coursepacks

• A coursepack is a collection of materials used with, or as a substitute for, a course textbook.

• Prior to 1991, it was commonly believed that reproduction in the form of coursepacks fell within fair use.

• In 1991, a Federal court ruled that Kinko’s copying of portions of books for use in an academic coursepack was not fair use.

The Digital Shift

Workshop Topics

• Copyright and Digital Content

• The TEACH Act

• Distance Learning

• Course Management System Implications

The Digital Sky is Falling

• As in the past, new technology creates new concerns and the need for new legislation to protect the exclusive rights of the copyright owner

• Also, as in the past, the new era causes the “Chicken Little Effect”

What is copyright protected in digital content?

• Digital or electronic content is subject to the same protections under the US Copyright Act as non-digital, traditional or analog works

• In 1998, the Digital Millennium Copyright Act (DMCA) amended the Copyright Act, adding specific provisions relating to digital content

Distance Education Recommendations to Congress• The Digital Millennium Copyright Act

mandated that the US Copyright Office complete a study and submit recommendations for revision of Section 110(2)

• The Copyright Office conducted studies and held public hearings and issued a report in May, 1999

What is the TEACH Act?

• Technology, Education and Copyright Harmonization Act of 2002

• Revises section 110(2) which provides for distance education

• Equates the classroom setting with the distance education setting

Benefits of the TEACH Act

• Facilitates and enables the performance and display of copyrighted materials for distance education

• Permits student participation in distance learning sessions from virtually any location

• Allows for greater latitude in storing, copying and digitizing analog works

Institutional Conditions of TEACH

• Must be a non-profit, accredited educational institution

• Must have instituted copyright compliance policies

• Must provide informational materials to impacted parties

• Students need to be informed about copyrighted course material

Technological Conditions of TEACH

• Must limit access to only those students enrolled in the course

• Must have functionality that prevents retention of the work beyond the length of the course/session and disallow further dissemination by the recipient

• Limited temporary and long term retention of copies

What TEACH does not allow

• Conversion of material from analog to digital formats except in certain circumstances

• Use of unlawful copies (copies not lawfully made or acquired)

• Electronic reserves, coursepacks, (electronic or paper) or interlibrary loan (ILL)

Course Management Systems

• Applications such as BlackBoard, WebCT, Jenzabar, Sakai

• Are often used to:– Post course content readings– Post Syllabi– Facilitate interactive student chat– Instructor Q & A– Testing and assessment– Submitting assignments– Submit/Inform students of grades

Course Management Systems

• Students are demanding access to course information and materials in electronic, online format

• Speed of adoption has outstripped information regarding copyright compliance

Posting of Content on a CMS

• Copyright requirements for CMSs are similar to those for classroom handouts

• If the use is planned, repeated or involves works that one could reasonably expect to receive permission, permission must be obtained

Final Thoughts

• For more information go to

www.copyrightoncampus.com

• As technology changes, expect more changes to copyright law

A Good Beginning….