Copyright and Intellectual Property Rights in the Digital Information Age

by Andy Howard, revised by Hayley Garcia 2005

Introduction

The Internet has transformed the way we work, learn, and play in the United States; therefore, It is unavoidable that the Internet has also created revolutionary changes in our legal system. This module looks at how digital law affects community college teaching in areas of copyright, privacy, and intellectual property rights.

A Primer on Copyright, Privacy and Intellectual Property in the Digital Information Age*

Penalties for infringement of copyright

It may seem backwards to start with the penalty for breaking the law before discussing what the law is, but in teaching theory this is called an "attention getter." The penalty is stiff. The court can award up to $100,000 for each separate act of willful infringement. Willful infringement means that you knew you were infringing on someone else's property rights, but you did it anyway. Don't think that ignorance of the law is a valid excuse. Even if you didn't intend to or know that you were infringing, you are still liable for damages (though the amount of the award may be slightly less). Then there are the attorneys' fees, the time spent addressing the situation, the stress involved .... The point is, copyright isn't something you should ignore - you should pay close attention to the following information.

Copyright basics

What is copyright? In essence, copyright protection turns on the existence of two essential elements: (1) the creation of an original expression; (2) that it is fixed in a tangible medium of expression. Facts, discoveries, and ideas in and of themselves are not subject to copyright protection, because they do not exist as a result of an act of authorship. It is not required to register a copyright or even include a copyright notice on a work, since protection is granted automatically as soon as the work is fixed in a tangible medium.

Who can claim copyright?

There are four forms of copyright ownership:

  1. The author of the work.
  2. Joint ownership when there are two or more authors.
  3. Collective ownership contains a number of contributions, each of which is a separate and independent work that are assembled into a collective whole (e.g., an encyclopedia).
  4. A "work made for hire": The first is a work prepared by an employee within the scope of his or her employment; the second type is a work that has been specifically ordered or commissioned.

Exclusive rights of copyright owners include the right to:

  1. Reproduce the copyrighted work .
  2. Prepare derivative works or adaptations based on the copyrighted work.
  3. Distribute copies of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.
  4. Perform the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, motion pictures, and other audiovisual works.
  5. Display the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work.

How long does copyright last?

Works created after January 1, 1978
The term of copyright protection is the life of the author plus 70 years. For joint works, the term is 95 years from publication or 120 years from creation, whichever is shorter.

Works created before January 1, 1978 and published from then to December 31, 2002
The term of copyright protection is the life of the author plus 70 years or December 31, 2047, whichever is later.

Works created before January 1, 1978, but not published
The term of copyright protection is the life of the author plus 70 years or December 31, 2002, whichever is later.

Works published from 1964-1977
For works published between 1964 and 1977 with a copyright notice, the term of the copyright is 28 years plus an additional 67 years (95 years total).

Works published from 1923-1963
For works published between 1923 and 1963 with a copyright notice, the term of the copyright is 28 years with the option to renew for an additional 67 years (if not renewed, these works are now in the public domain).

Works published before 1923
Copyright is no longer in effect for these works and they are now in the public domain.

See the When Works Pass Into the Public Domain Chart

Which works are not protected by copyright?

Works that are not protected by copyright law are said to be "in the public domain" (i.e., they belong to the public as a whole). Copyright does not apply to public domain works, and the authors of these works do not possess any of the exclusive rights of copyright owners. As a result, works in the public domain may be used freely by everyone.

The fact that a work is readily available to the public does NOT mean that it is "in the public domain." For example, while freeware and shareware may be given away to the public for free, the software is still protected by copyright law and the author retains his/her exclusive rights.

Works in the public domain include:

  1. Common knowledge information such as facts, numbers, and ideas.
  2. Works for which the copyright has expired.
  3. Works published before March 1, 1989 that did not include a proper notice of copyright (after March 1, 1989 the copyright notice is no longer required in order to secure copyright).
  4. Works created by the United States federal government.
  5. Works that are expressly contributed to the public domain by their authors.

Educational Fair Use Policy

Now for the good news: Teachers are granted special exemptions to use copyrighted material without obtaining permission under what is called the "fair use policy."  Whether a particular use qualifies as fair use depends on the circumstances.

Fair use balancing test

There are four primary factors used to determine if instructors can use copyrighted material in their classroom: (1) The purpose and character of the use; (2) the nature of the work; (3) the amount and substantiality of the portion used; (4) the economic impact on the value of the work.

  1. The purpose and character of the use
    including whether such use is of a commercial nature or is for nonprofit educational purposes. While not at all determinative, courts have generally ruled that preference will be granted to works that were created for non-profit educational purpose.


    Fair Use
    line
    Get Permission
     

    Nonprofit

    Health    

    Commercial
     
    Teaching
    Parody    
    Research
    Personal 
    Criticism
    Commentary

  2. Uses on the left tend to tip the balance in favor of fair use. The use on the right tends to tip the balance in favor of the copyright owner, that is, in favor of seeking permission. The uses in the middle, if they apply, are very beneficial - they add weight to the tipping force of uses on the left and subtract weight from the tipping force of uses on the right.


  3. Nature of the work
    This second factor acknowledges that fact that some works are simply more deserving of copyright protection than others. Consequently, this portion of the test looks at the original work and attempts to determine where that work is in the spectrum of worthiness of copyright protection.

    Fair Use
    line
    Get Permission
     

    Factual

    Factual & Imaginative 

    Imaginative
    Consumable Materials      
     
    Unpublished
    Published     

    Uses on the left tend to tip the balance in favor of fair use. The use on the right tends to tip the balance in favor of the copyright owner, that is, in favor of seeking permission. The uses in the middle have little effect on the balance.

  4. Amount & substantiality of the portion used
    The third factor looks at the amount and substantiality of the use in relation to the work as a whole; however, the critical determination is whether the quality and value of the materials used are reasonable in relation to the purpose of the use. This is not a pure ratio test in that using a whole work may be fair use in some circumstances, whereas using a tiny fraction of a work may not qualify for fair use in other circumstances. Therefore, the quantity as well as the quality and importance of the material used must be taken into consideration. Some justices have looked to see that "no more was taken than was necessary" to achieve the purpose for which the materials were used as a measure of amount and substantiality.


    Fair Use
    line
    Get Permission
     

    Small amount

    Large amount         
     
    Only what is necessary
    More than required

  5. Economic impact on market value of the work
    The fourth factor considers the extent of harm to the market or potential market of the original work caused by the infringement. This test takes into account harm to the original work, as well as harm to derivative works.

    Fair Use
    line
    Get Permission
     

    Small economic impact

    Significant economic impact
     

The TEACH Act

The Technology, Education, and Copyright Harmonization (TEACH) Act was signed into law on November 2, 2002, and expanded the scope of educational fair use in distance education. The TEACH Act was the result of joint discussions between academic institutions, publishers, library organizations and Congress, and sought to strike a better balance between protecting the rights of copyright owners and enabling those who use copyrighted works for educational purposes. The TEACH Act updates the existing copyright law as it pertains to the transmission of performances and the display of copyrighted works.

What does the TEACH Act say?

Under the following conditions:

  1. By/under the direction or supervision of an instructor at an accredited nonprofit educational institution or governmental body.
  2. As part of mediated instructional activities.
  3. Directly related to the course content.
  4. As an integral part of the class session.
  5. Transmission is made solely for and reception is limited to students enrolled in the course (technological measures used by the copyright holder may not be tampered with or circumvented).

The TEACH Act allows:

  1. Students to participate in distance learning sessions from virtually any location.
  2. Instructors to perform non dramatic literary and musical works in their entirety, and perform other works in reasonable portions.
  3. Instructors to display any copyrighted work in an amount comparable to what would be displayed in a face-to-face classroom setting.
  4. Analog materials to be converted to digital format provided no digital version is available for purchase (analog can be converted to digital if the available version is technologically protected).

The TEACH Act does NOT allow:

  1. The transmission of textbook materials, electronic reserves, course packs, or interlibrary loan materials.
  2. The transmission of works produced, marketed or licensed primarily for performance/display as part of mediated instructional activities distributed via digital networks.
  3. The display/performance of unlawfully made or acquired copies.

Review the TEACH checklist


Some "Rules of Thumb"

Here's some basic "Rules of Thumb" adapted from the University of Texas Fair Use Rules of Thumb that will help you determine how and when you may use copyrighted materials in your class. For more comprehensive information, refer to the Guidelines assembled by the College of DuPage.

While these guidelines are based upon copyright law they are not the law itself, and are not intended to replace qualified legal opinion. Be sure to check to see if your college has specific policies on permissible use of copyrighted material.

Course packs

Limit course pack materials to:

  • Single chapters
  • Single articles from a journal issue
  • Several charts, graphs or illustrations
  • Other similarly small parts of a work

Include in the course pack materials:

  • Any copyright notice on the original
  • Appropriate citations and attributions to the source

Obtain permission for materials that will be used repeatedly by the same instructor for the same class.

Images

Is the image you wish to digitize readily available online or for sale or license at a fair price?

YES
Link to, purchase or license the image. Do not digitize it unless you are in the process of negotiating a license. If you have a "contract pending," digitize and use the image in accordance with these "Rules of Thumb" until the license is finalized and you have received the licensed digital image.

NO
Digitize and use the image in accordance with the following limitations:

  • Limit access to all images except thumbnails to students enrolled in the class and administrative staff as needed. Terminate access at the end of the class term.
  • Faculty members also may use images at peer conferences.
  • Students may download, transmit and print out images for personal study and for use in the preparation of academic course assignments and other requirements for degrees, may publicly display images in works prepared for course assignments etc., and may keep works containing images in their portfolios.

See more comprehensive guidelines for images

Multimedia Projects

Students, faculty and staff may incorporate others' works into a multimedia work and display/perform that multimedia work in connection with or creation of:

  • Class assignments
  • Curriculum materials
  • Remote instruction
  • Examinations
  • Student portfolios
  • Professional symposia

Keep in mind that the rights described here are rights to create unique works, but not to make multiple copies of copyrighted materials and distribute them.

See more comprehensive guidelines for multimedia development

Off-Air Recordings

Fair use allows:

  • Nonprofit educational institutions to record a television program simultaneously with broadcast transmission only at the request of an instructor (programs may not be regularly recorded and may only be taped once for the same instructor).
  • Institutions to retain an off-air recording for 45 consecutive calendar days following recording . Instructors to show off-air recordings no more than twice in the first 10 consecutive school days in the 45-day period.

Fair use does NOT allow:

  • Recorded programs to be altered from their original content.
  • Off-air recordings to be physically or electronically combined/merged to create teaching anthologies or compilations.
  • Off-air recordings to exclude the original copyright notice on the broadcast program as recorded.
See more comprehensive guidelines for off-air recordings

Getting Permission

Who is authorized to give permission to use a copyrighted work?

Only the copyright owner is authorized to give you permission to use his/her copyrighted work. The copyright owner may be an author, an artist, an organization, or a publisher. Keep in mind that copyrights can be transferred to others, for example, heirs of deceased authors/artists.

How to identify the copyright owner?

Identifying the copyright owner may not always be straightforward, but do not let this discourage you. Many publishers, authors, and artists use licensing agencies, like the Copyright Clearance Center, which take care of permissions for them. This makes it a bit easier to find out who owns the rights to a work. Furthermore, the U.S. Copyright Office maintains a searchable online database of works registered since 1978.

See Locating Copyright Holders for more information

How to request permission

Many publishers require permission requests in writing on institutional letterhead. While a copyright owner may give you oral permission, it is best to obtain written documentation, which you can then file for later reference.

Permission letters should include:

  • A complete description of the material for which you are seeking permission with all available bibliographical information (i.e., author, title, editor, compiler, translator, publisher, place of publication, year of publication, edition, ISBN, etc.).
  • A description of the exact part and portion of the work, which you are seeking to use (i.e., page numbers, minutes, etc.).
  • A description of how the work will be used, how long it will be used, how many people will be using it, and where, on campus or off, it will be accessed or distributed.
  • Your contact information should the copyright owner need to get in touch with you.
  • A signature line for the copyright owner to sign authorizing you to use the work as described.
See sample permission letters

Intellectual Property Rights

Intellectual property rights starts with a general assumption that the author is usually the owner. The major exception is what is referred to as a "work made for hire." A "work made for hire" is a work created by an employee within the scope of his/her employment. In the case of a "work made for hire" the author's employer owns the property rights to the work unless the employer and author have expressly agreed otherwise in writing. The manner in which property rights are handled for a "work made for hire" varies, so consult your own institution's policies for more specific information.

A "work made for hire" falls within one or more of the ten statutory categories, where the agreement commissioning the work is documented in writing and signed by the author before work begins.

"Work made for hire" categories include:

  • Contribution to a collective work
  • Part of a movie or other audiovisual work
  • A translation
  • A supplementary work
  • A compilation
  • An instructional text
  • A test
  • Answer material for a test
  • An atlas
  • A sound recording

If a work does not fit within the statutory definition of a "work made for hire," the employer may still own the property rights if it is created pursuant to a contract with an assignment of copyright.


*Disclaimer: This information is intended to provide basic copyright information and guidelines for faculty and staff and should not be considered legal advice. Please keep in mind that these guidelines are subject to change as new legislation is introduced and existing copyright law is amended.