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 Works of authorship may be published or unpublished and include compilations or derivative works.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 pre-existing 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
• 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/pdfs/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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