Copyright Issues
in Distance Education
This section includes an overview of the
application of copyright law to distance education, prepared by the University
of Florida General Counsel's Office. You can access the Florida
Campus Direct's information about copyright at this Web site: http://www.fcd.ufl.edu/copyright.asp.
This section's content is supplemented by some "rules of thumb" generated
by the University of Texas System.
What
is Copyright?
Copyright is a means of protection
provided under federal law (title 17, U.S. Code) to authors of "original
works of authorship." Works of authorship include literary, musical, and
dramatic works, works of fine art, films, sound recordings, photographs
and computer programs. Works of authorship may be published or unpublished
and include compilations or derivative works. Copyright cannot extend to
materials used unlawfully, nor can a copyright affect the copyright of
any preexisting material used in the work.
Copyright does not protect ideas, but rather
"original works of authorship fixed in any tangible medium of expression,
now known or later developed, from which they can be perceived, reproduced,
or otherwise communicated, either directly or with the aid of a machine
or devise." [17 U.S.C.§ 102] Copyright is intended to secure to the
author (owner of the copyright) for a limited period the exclusive right
to (and to authorize others to) reproduce, distribute, sell, perform, or
publicly display the copyrighted work and to prepare works derivative of
the work. There are limitations on these rights, the most important of
which is the "fair use" doctrine.
The copyright immediately becomes the property
of the author when the work is created except in the case of a work for
hire when the employer is the owner. Simply owning the "fixed tangible
form" of the original manuscript, painting, computer program, or the like
does not give the owner/possessor any rights in the copyright. These
rights belong to the owner of the copyright.
Copyright protection is secured immediately
upon creation of the work. No formalities are necessary to secure
copyright protection. At the same time, the use of a formal copyright
notice is recommended in order to protect against "innocent infringers."
The proper notice is as follows: © (or the word "Copyright" or "Copr.")
1998 (year of first publication) University of Florida (name of owner of
the copyright). The notice should be placed where it provides "reasonable
notice of the claim of copyright." [17 U.S.C.§ 401] A copyright
claim may be registered with the Copyright Office. Registration is
a prerequisite to an infringement suit for a work originating in the United
States.
When
and How May Copyrighted Works be Used?
In general, permission should be secured
for the use of materials protected by copyright. However, under copyright
law, the fair use of copyrighted works is not an infringement of
copyright. Thus, "the fair use of a copyrighted work, including
such use by reproduction in copies...for purposes such as criticism, comment,
news reporting, teaching (including multiple copies for classroom use),
scholarship, or research, is not an infringement of copyright." [17 U.S.C.§
107] To determine if a use constitutes a fair use, each of the following
factors must be considered:
-
The purpose and character of the use, including
whether such use is of a commercial nature or is for nonprofit educational
purposes;
-
the nature of the copyrighted work;
-
the amount and substantiality of the portion
used in relation to the copyrighted work as a whole; and
-
the effect of the use on the potential market
for or value of the copyrighted work.[17 U.S.C. § 107]
If there is any question as to whether a use
constitutes a fair use, the user should seek the written permission
of the owner of the copyright and/or seek legal advice from the Office
of the General Counsel. Please refer also to the rules of thumb, provided
later in this section, established by the University of Texas System
for general guidelines.
Ownership
of Distance Education Courses
A distance education course developed
at the University of Florida will be a "University-supported work," as
defined in the Collective Bargaining Agreement between the United Faculty
of Florida and the Board of Regents and in the University's Rule 6C1-7.0392,
F.A.C. As such, the University owns the copyright to any materials
developed. All rights to the work will be assigned to the University.
-
The University has the right to use the course
(including all related materials) developed by the faculty member and/or
other employees involved in the development of a distance learning course
for the University's own educational, research, and other purposes (which
shall include the activities of University of Florida direct support organizations)
without any additional compensation to the faculty member or any other
employees who are authors of the course. Academic departments determine
which courses will be offered and who will teach these courses.
-
If the course and/or related materials are
licensed, sold, or otherwise conveyed to a third party, the University
of Florida Intellectual Property Policy will govern the distribution
of any proceeds. (Please refer to the University of Florida Intellectual
Property Policy at http://web.otl.ufl.edu/pdf/otl/ipp.pdf.)
Any such licensing or other transfer will be accomplished through the Office
of Technology Licensing.
-
As to revisions and updates of a distance
learning course, the faculty member(s) or other employees who are the authors
of the course will have the primary responsibility for revising and updating
the course and related materials as long as he/she/they are employed by
the University of Florida. If a faculty member (or other employee) who
is an author is no longer employed by the University or is unable to revise
and update the course as needed (as determined by the department), the
material may be revised and updated by other University of Florida faculty
members and other employees.
Other
Legal Issues in Distance Education
-
Releases should be obtained from any
person whose image or voice is used in a work (i.e. a videotape of the
classroom session) unless the use is purely "incidental."
-
Federal disability law, federal student
financial aid rules, and the Telecommunications Act of 1996 may also
need to be considered in a distance learning program.
-
If the course is given in other states, the
particular
state's laws and regulations concerning educational delivery must be
followed.
Rules
of Thumb
These rules of thumb were
established by Georgia Harper, manager of the Intellectual Property Section
of the University of Texas System's Office of General Counsel. Harper's
online publication The Copyright Crash Course (http://www.utsystem.edu/OGC/IntellectualProperty/cprtindx.htm)
provides guidance to faculty who use copyrighted materials as part of their
course development. These rules are drawn in part upon the Fair
Use Guidelines and Principles for educational multimedia, digital
imaging, and distance learning, developed by the Conference on Fair
Use (CONFU). Both the CONFU and UT guidelines represent general recommendations
to help faculty avoid copyright infringement. Faculty members are urged
to seek legal advice from the University of Florida General Counsel's
Office to clarify any specific applications.
Displaying and performing others'
works in distance education*: CONFU Distance Learning Guidelines
only tackle fair use to perform and display others' works in two contexts:
live interactive distance learning classes and delayed transmission of
faculty instruction. They do not cover fair use of (performance of) others'
works in on-line course materials.
-
Incorporate performances of others' works
sparingly and only if a faculty member or the institution possesses a legal
copy of the work.
-
Include any copyright notice on the original
and appropriate citations and attributions to the source.
-
Limit access to students enrolled in the class
and administrative staff as needed.
-
Terminate access at the end of the class term.
-
Obtain permission for materials that will
be used repeatedly by the same instructor for the same class.
Digitizing and using images for educational
purposes*: Is the image you wish to digitize readily available
on-line or for sale or license at a fair price?
-
If YES, point 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. [At the
University
of Florida, the faculty members must seek prior consultation with appropriate
departmental and college administrators or the General Counsel's office
prior to any purchase or license. Individual faculty members cannot
enter into license agreements or make purchases on behalf of the University
of Florida.]
-
If NO, digitize and use the
image in accordance with the following limitations:
-
Limit access to all images except "thumbnails"
(define) 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, and may keep works containing images in their portfolios.
-
Periodically review digital availability.
Digitizing and using others' works in
multimedia materials for educational purposes*: The rights described
here are rights to create unique works, but not to make multiple copies
and distribute them.
-
Students, faculty and staff may incorporate
others' works into a multimedia work and display and perform a multimedia
work in connection with or creation of class assignments, curriculum materials,
remote instruction, examinations, student portfolios, and professional
symposia.
-
Be conservative. Use only small amounts of
other's works.
-
Don't make any unnecessary copies of the multimedia
work.
*Am I a Crook? Copyright
Issues on the Internet, PBS Broadcast, April 2, 1998. Reprinted with permission.
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