ELT7007 Activity 11: Review of Issues Associated with the Educational Non-Profit Sector from Course Discussions and Course Materials

Copyright Duration
Copyright materials can be used with permission during the period of protection and once the copyright materials become public domain new uses of the works quickly emerge which benefits all of society (Bonner, 2006). After the expiration of the copyright protection, generally 70 years from the death of the author and for certain works the expiration is based on the date of creation (95 years later) or publication (120) years later the public is free to use the once protected materials resulting in new uses of the once protected materials.

Copyright Protected or Fair Use
When copyright infringement occurs the rights of those protected by copyright have been violated (Waxer & Baum, 2006). Not all instances in which copyrighted materials are used without permission are considered infringement. The statute governing copyright contains what is termed fair use of materials which is defined by Wilson (2005) as “any use that is deemed by the law to be ‘fair’ typically creates some social, cultural, or political benefit that outweighs any resulting harm to the copyright owner” (p. 67). With the passage of the Copyright Act of 1976 the fair use doctrine was codified (Waxer & Baum).

Fair use occurs when use of the materials are in the public interest even though materials normally protected by copyright laws are reproduced in some format and generally fall into four areas (a) news reporting, (b) education, (c) creative works, (d) internet, and (e) commerce (Wilson, 2005). As noted by Waxer and Baum (2006) “fair use may be claimed when you use a portion of a copyrighted work for certain purposes without permission from the owner” (p. 53). The test of whether the copyright materials which are used without permissions or licensing fall under fair use is determined on a case-by-case basis of four factors as outlined by Waxer and Baum:
1) Character and purpose of the use
  • Commentary and criticism (scholarship and parody)
  • New reporting
  • Research
  • Nonprofit versus commercial use
2) The nature of the copyrighted work
  • Primarily factual versus creative
  • Published versus unpublished work
3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  • Qualitative ‘heart of the work’
  • Quantitative (the less the better)
4) The effect of the use on the market or the potential market for the copyrighted work (pp. 54-55).

Fair use does not give free reign to educational institutions to use copyrighted materials unless the use meets the four factors of fair use. In an educational environment the use of musical compositions require a proper musical license to reproduce the musical work which must still adhere to specific conditions (Bonner, 2006). Copyright infringement can occur within the educational environment when the use of musical works falls outside of the specific uses covered by the licensing agreement. In reference to a commercial use of music which does not require a license Bielefield and Cheeseman (2007) referenced the Campbell v. Acuff-Rose Music, Inc. case wherein “the Court found the taking of the tune ‘Oh Pretty Woman’ by the rock group 2 Live Crew to make a parody was a fair use even though it was a commercial use” (p. 74). When it comes to commercial uses what is termed fair use occurs very seldom with the first and fourth factors used to evaluate whether the copyrighted materials used fall under fair use (Wilson, 2005). It is true some uses of copyrighted materials might meet fair use for more than one reason as mentioned by Bonner (2006) “an educational use can also be commercial, as in the case of a textbook authored by a faculty member” (p. 41).

Multimedia and Copyright
The Copyright Act of 1976 incorporated fair use into the law thus allowing nonprofit educational institutions more latitude to use copyrighted materials within the educational setting. With the explosion of worldwide electronic media the emergence of the Digital Millennium Copyright Act of 1998 was intended to amend the prior law to conform to international treaties (Bonner, 2006). The face-to-face classroom performances and displays of copyrighted materials are covered under Section 110(1) of the Copyright Act with the transmission of performances and displays falling under Section 110(2) which is more restrictive (Bonner).Within the educational setting faculty want to disseminate and access materials available digitally for inclusion in their courses to reach the learners across time and space yet not all uses fall under fair use (Bonner).

Access to library materials is no longer limited to the brick and mortar buildings and licenses solely for on-campus use of materials as libraries are able to provide immediate access to materials termed e-reserves which are easily shared with learners. One issue involved with multimedia as Bonner (2006) notes means that “institutions take various steps to ensure that users understand the limits of fair use” (p. 44). Access to the e-reserves and other digital materials is limited to enrolled students and faculty and is to be accessed through appropriate login processes and not directly linked to learning materials which may be accessed via the internet or other means for the general public. This requires educational institutions to create policies and procedures to encourage appropriate fair use of materials and licensed materials along with following the Classroom Guidelines (Waxer & Baum, 2006). Licenses now require a closer look at the terms and conditions given the digital and technology complexities along with how to properly educate faculty and staff in the use of the electronic materials (Bonner, 2006; Waxer & Baum, 2006).

Learning management systems used to interact with the learner pose additional issues for educational institutions as the use of media to engage learners can easily cross over into copyright infringement. Properly crediting the source of the materials used in the e-classroom may easily be overlooked as well as the use off-air videos and digitally combined pieces of original works (Bielefield & Cheeseman, 2007). More globally how students use internet resources provided by an educational institution pose the most copyright issues as the potential for illegal downloading and sharing runs rampant not only for students living in campus housing but also for commuter students. Additional policies and guidelines are required which requires educational institutions to spend more time and money monitoring illegal use of materials and to develop programs to support appropriate use of copyrighted works. The safest bet is to obtain permission whenever possible (Bielefield & Cheeseman, 2007).

Online Courses and Copyright
Fair use of copyrighted materials are uses which do not constitute copyright infringement as long as the use falls under one of the exemptions specifically mentioned in the copyright statute Section 110 (Wilson, 2005). In particular fair use in education lists exemptions which allow teachers and instructors of a nonprofit educational institution to use materials normally protected under copyright law. Fair use was originally limited to the face-to-face instruction and other traditional educational settings yet with the advent of distance education and online courses available via the Internet educational fair use took on a new meaning. As noted by Wilson “for copyright owners, the primary danger presented by the Internet is the possibility that their works will be copied without authorization and disseminated without payment” (p.117). As for copyright users Wilson stated “the danger is infringing the copyrights of others-perhaps unintentionally-in the free-and-easy spirit that has characterized many users of the Internet since its inception” (p. 117). Given the concerns mentioned by Wilson and the lack of online guidelines for educational use of copyrighted materials the Technology, Education, and Copyright Harmonization Act of 2002 commonly referred to as the TEACH Act was “promoted as a welcome modernization of U.S. copyright law, adapting it to new technologies for delivering education” (Bonner, 2006, p. 71). The TEACH Act expanded the uses of copyrighted works to digital distance education (Bonner, 2006).

The TEACH Act is comprised of certain conditions which must be met prior to claiming educational fair use as an exemption to copyright infringement (Bonner, 2006). Certain categories are exempted from copyright infringement and include classes of works for (a) the public performance of nondramatic literary work or musical work, (b) reasonable and limited portions of any other work, and (c) the public display of a work in an amount comparable to that which is typically displayed in the course of a live class session (Bonner, 2006). The caveat here is that the works must have been acquired lawfully and does not protect the instructor or the educational institution from a lawsuit for illegal copies of works. Additionally, certain conditions must still be met for the performance or display of the works as noted by Bonner (2006) which includes (a) made at the direction of, or under the actual supervision of the instructor, (b) an integral part of class session, (c) part of systematic mediated instructional activities, (d) made by an accredited nonprofit educational institution or governmental body, and (e) directly related and of material assistance of the teaching content of the transmission.

There are further responsibilities of the institution to ensure that only students enrolled in the classes are intended to receive the transmission of information as well as developing and properly implementing policies to provide information concerning digital transmissions. In order to take advantage of the provisions of the TEACH act educational institutions “must institute a copyright policy and must provide informational materials on copyright for faculty, staff, and students” (Waxer & Baum, 2006, p. 170). The TEACH Act requirements might be too burdensome for some institutions and instructors which may always fall back on the four criteria for fair use: (1) purpose and character of the use, (2) nature of the copyrighted work, (3) amount and substantiality of the portion used in relation to the copyrighted work as a whole, and (4) the effect of the use on the potential market for or value of the copyrighted work (Bonner, 2006). Instructors of online courses must be just as prudent as instructors in traditional classroom settings and follow the intent of fair use.

World Wide Web and the Internet
Performing an Internet search on the Web can yield a large amount of results depending on how the search is executed as “the Web is an enormous collection of files in various media stored on various computers” (Waxer & Baum, 2006, p. 83). Generally, the goal is to find relevant and reliable resources when doing research and for inquisitive individuals wanting to learn basic information the goal is to find pertinent information based on the query provided in the search. Searching for information is accomplished using search engines and in reference to the hundreds of billions of documents on the web Waxer and Baum (2006) noted there is “no single search engine is capable of locating, not to mention searching, anywhere near that amount” (p. 94). Most users perform searches using search engines which focus on static pages or indexed pages and comprise a small amount of information in comparison to the invisible web which outnumbers static pages by over 200 percent and the indexed pages by more than 1000 percent (Waxer & Baum, 2006).

The vast amount of information available does not always yield quality information. The specialized way in which the scholarlyinformation is posted to the Web results in information searches which are difficult for the average user and truly keeps resources invisible. The trick is to learn how to take advantage of the invisible web to locate sources and information from such databases as transportation, court records, telephone records using the specialized search engines. Specialized search engines focus on specific subjects and the results will be more comprehensive and relevant as well as beings designed for the type of search being conducted.

References:

Bielefield, A., & Cheeseman, L. (2007). Technology and copyright law: A guidebook for the library, research, and teaching professions (2nd ed.). New York, NY: Neal-Schuman Publishers, Inc.

Bonner, K. et al. (Eds.). (2006). The center for intellectual property handbook. New York, NY: Neal-Schuman Publishers, Inc.

Keogh, P. & Crowley, R. (Eds.). (2008). Copyright policies (Clip Note #39). Chicago, IL: American Library Association.

Waxer, B., & Baum, M. (2006). Internet surf and turf revealed: The essential guide to copyright, fair use, and finding media. United States of America: Thomson Course Technology.

Wilson, L. (2005). Fair use, free use and use by permission: How to handle copyrights in all media. New York, NY: Allworth Press.