Editors Note: This is a comprehensive review of copyright issues. We are including it in this issue for two reasons: 1. It is a sound, thoughtful article, and 2. The co-authors have never met face-to-face. This research paper was collaboratively written for an online class conducted by Dr. William Lynch at George Washington University called, "Critical Issues in Distance Education." (see URL: http://www.gwu.edu/~etl. It is certainly one answer to the distance learning question, "Quo Vadis?"‚ "Ergo Sumus"‚ we are here!
Survey of Intellectual Property Issues for
Distance Learning and Online Educators
L. Heidi Primo (Hawaii) and Teresa Lesage (Alaska)
"Crime in a Poet, Sirs, to steal a Thought ?
No, that 'tis not; if it be good for aught:
'Tis lawful Theft; 'tis laudable to boot;
'tis want of Genius if he does not do't:
The fool admires--the Man of Sense alone
Lights on a Happy Thought--and Makes it all his own."
--John Byrom, Miscellaneous Poems, 1, 133(1773)
quoted in George J. Buelow, "The Case for Handel's Borrowings: The Judgement of Three Centuries", and in Stanley Sadie and Anthony Hicks, Eds., Handel Tercentenary Collection, Macmillan Press, Houndmills, 1987.
Intellectual Property Defined
Intellectual Property is the original product of our own experiences and thoughts. How can we put a price-tag on it? How can we market it, license it, box it and put it on a shelf? Whenever we share an idea, turn in a paper, or publish a work we are exposing our thoughts not only to criticism, but also to theft. The United States Government, as well as foreign governments and the World Intellectual Property Organization (WIPO), in order to protect intellectual property and to facilitate the free flow of thoughts without fear of pecuniary loss, has attempted to define the barely tangible, the original thought.
One of the rationales for the existence of copyright law is to encourage and promote creativity, which ultimately can only benefit society. The protection of the law acts an incentive to artists and publishers to invest time and money in artistic enterprises. However, in many cases there exists a tension between the need to protect the interests of the creator and the promotion of new art and new forms of artistic expression. Few would argue that the wholesale copying of other peopleís work should be permissible, particularly if it would be possible to obtain a license on payment of a reasonable fee. Although current trends in electronic media could not have been foreseen a century ago, writers in the American Bicentennial year were concerned with protecting intellectual property in all forms and so created a remarkably plastic definition of intellectual property. Section 102 (a) of the 1976 U.S. Copyright Act reads:
"Copyright protection subsistsÖin 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 device." (Brunwelheide, 1995).
According to this definition, then, every part of an American Distance Learning application would be logically protected under U.S. law. So then, would the resources, documents, readings and contributions, which make up the classes. Therein lies the rub. Negotiations are in place to alter some of the laws that apply to analog "Fair Use and Performance Rights" for Distance Learning. If a United States organization creates electronic distance learning materials for limited use within a non-profit educational institution or training organization, current reliance on "fair use" is appropriate. On the other hand, for commercial products or online courses, "fair use" will not normally be protected or upheld by the courts.
The law is unclear, and the U.S. Copyright Office is recommending changes to some aspects of the Copyright Law to accommodate Digital Distance Learning. Rights to transmit materials for distance learning differ from rights to use materials in face-to-face teaching, depending on the medium of expression.
New Challenges to Copyright Issues for Distance Learning
With the explosion in the use of distance education, the amount of information and the degree of public access to it has grown exponentially. Increasing numbers of distance learning courses, especially on the Internet are redefining the boundaries of intellectual property. While course syllabi and materials were once carefully guarded and protected by their creators, putting some of these materials on the Internet for student access has made protection a near impossibility.
"Copyright Act (DMCA), the U.S. Copyright Office As required by Section 403 of the Digital Millennium conducted a study on how to promote distance learning through digital technologies while maintaining the "owners and the needs of the users of copyrighted appropriate balance between the rights of the copyright works." (Educause, 1999)
Recommendations for consideration by the U.S. Congress were submitted on or before April 28, 1999. As yet, no legislation has been enacted. The U.S. Copyright Office has the compiled 353 page document on Report on Copyright and Digital Distance Learning, which is available in Adobe Acrobat format at their website.
Categories of Protected Works
Copyright protection is available for the following categories of works that may be of interest to instructional designers, distance educators and multimedia developers. Literary works includes novels, nonfiction prose, poetry, newspaper articles, magazine articles, computer software, software manuals, training manuals, catalogs, brochures, text ads, and compilations. Musical and dramatic works, pantomimes and choreographic works (dance) are also protected. Images that are protected include pictures, graphics and sculptural works, including photographs, posters, drawings, paintings, cartoon strips and characters, stuffed animals, statues, and any other works of art. Motion pictures and other audiovisual works including documentaries, travelogues, training films and videos, television shows, television ads, and interactive multimedia works are protected. So are sound recordings of music or words. Copying and distribution of copyrighted material without permission can be illegal, even if you do not charge for the copied material. Making copyrighted material available to others can be "contributory infringement.î
Course Designer Ownership
Faculty members are now concerned with the protection of their own creative works including the teacherís syllabus, lectures, examinations and other course materials, whether they are newly created or adapted from existing classes for distance delivery. Potential disputes arise around intellectual property issues specifying who owns the course- the faculty members who developed it or the institution that paid them to create it. Generally, the owner(s) of a copyright is the person (or persons) who created the work. In some institutions, the administration allows faculty members to retain ownership of all courses they create as individuals. Courses that are created within the scope of employment, using substantial institutional resources, or as part of "work-for-hire" arrangements often remain the property of the institution, whether or not there was mutual intent to become co-owners. For courses that fall in-between, the percentage of ownership must be negotiated or contracted, in advance. In order to qualify the work as a "specially commissioned" work-for-hire, there must be a written agreement in place prior to commencement of development of the new product or course.
Multimedia Considerations
Digital technology makes it fairly effortless to combine the work of others. The developer of multimedia creations that incorporate a number of preexisting works by others (i.e. photographs, film clips, text, music) is still under obligation to obtain permission from the copyright holders or the artists who created those original works. Anyone who violates the exclusive rights of any copyright owner is an infringer and could be liable to pay monetary damages. (Brinson & Radcliffe, 1996).
The Role of Online Instructors
Once courses have been posted to the Web, what becomes the role of the faculty member? Some financially strapped institutions look to one-time creation of classes as a way to maximize profits while minimizing costs. To avoid confusion, the right of use, the right of reimbursement for the contribution, and the right to share in proceeds should be negotiated before a course is created, to avoid costly and lengthy litigation afterwards.
Conflicts of Interest
Professors & faculty members teaching or providing online courses for other institutions than their employer create a potential conflict of interest, particularly if this course substantially competes with one their employer offers. In addition, there are questions as to whether the person can mention their affiliation with a University if the course is taught elsewhere. Conflicts also arise when extracurricular projects interfere with time spent or designated duties required by the faculty memberís home institution. This is not a new controversy in Academia that is exclusive to Distance Learning, but potential for conflict exists.
Videotaped Classes
If a faculty member designs an audiovisual course, writes the outline, then "stars" in the video format of the class, should the instructor be entitled to royalties or residual profits resulting from the resale of the course content through time? In the concept of "mediated instruction,î performance and display is analogous to the type of performance or display that would take place in a live face-to-face (F2F) classroom. Section 110 (1) allows performance rights for transmissions regardless of the medium used in F2F teaching; Section 110 (2) authorizes transmissions of still images and performance of non-dramatic literary works and music to distant learners (University of Texas System). A teacherís course should never be recorded without their explicit knowledge or permission. Recordings of courses are academic documents and thus considered works of scholarship. Therefore, the author or creator should retain proprietary rights (American Association of University Professors, 2000).
Liability for Copyright Infringement
Courses to be used in Distance Learning that include materials from archives and special collections, found on the Internet, images that are digitized from analog sources, or content created by merging different kinds of works into multimedia creations all need to avoid copyright infringement. Copyright protects any works of authorship fixed in a tangible medium of expression. It protects a personís unique way of expressing something, even if it only utilizes a minimum amount if creativity. It does not protect underlying ideas or facts. Unauthorized users and their sponsoring institutions share legal liability.
Registration & Length of Copyright
In the United States, for works created during or after 1978, copyright protection begins as soon as a work is "fixed in a tangible medium of expression" and ends 70 years after the death of an author. Protection is automatic and copyright notice is not required, however the benefit of registration follows an author wishes to bring suit, in which case statutory damages and attorneyís fees can be awarded by a court. {Works published before 1978 maintain their copyright for 95 years after publication. If published before 1964, the copyright remains for 28 years, plus another 67 years, if renewed.}
Rights of Copyright Owners
Owners have exclusive rights to make copies, to create derivative modifications of their work, to distribute, display or perform works publicly. For works that are protected, permission must be obtained from the copyright owner to use their work in a distance learning or multimedia work. There are certain exemptions to this law, such as "fair use."
Fair Use
The boundaries of "fair use" (section 107) are not transparent or fixed, and exemptions for instructional broadcasting have been recommended to the U.S. Congress. The doctrine of fair use developed over the years as courts tried to balance the rights of copyright owners with society's interest in allowing copying in certain, limited circumstances. This doctrine has at its core a fundamental belief that not all copying should be banned, particularly in socially important. Special exemptions for legitimate educational activities and learning uses previously existed for teachers and students to make a small number of copies (de minimus copying) of printed materials. Research, criticism, commentary, news reporting, teaching, scholarship and all fall within the traditional boundaries of "fair use." The trend in recent court decisions is towards narrowing the scope of "fair use." (Univ. of Texas System website). (Bitlaw website)
The challenge is to determine how much of this law extends to digital technologies, audiovisual aids and new communications media. By its very nature, a digital transmission implies making a copy, at least at the point where it is received. There is no consensus on guideline status of creation of multimedia works or educational use of digital images and text for distance learning. The Association of American Publishers strongly opposes a "blanket exemption" which could allow works to be exhibited or transmitted on the Internet, rationalizing that existing copyright law provides sufficient protection, and "any substantial changes to copyright law are unnecessary." Copyright owners and providers are concerned that if an exemption is allowed for digital distance learning, it will result in unlimited, unauthorized dissemination of duplicate copies of copyrighted materials over the Internet. Whether or not digital licensing will provide a viable remedy is undetermined, as yet. (Educause, 1999).
Commercial Use
The rights of "fair use" extend to faculty and students for educational "non-profit" activities. If a work is sold to the public for entertainment purposes or commercial gain, the courts do not generally consider this "fair use." This brings up issues about using materials for classes or courses where students are charged tuition. If a web site uses or disseminates copyrighted material, whether or not people are charged to view it, license from the owner must be obtained. If "fair use" does not apply, always seek permission to use content.
Moral Rights
In British law, two additional rights are granted to authors of visual works: the right of attribution, and the right of integrity. The right of attribution, or identification, sometimes referred to in international treaty contexts as the 'right of paternity,í allows an author to prevent misattribution of a work. It gives authors the right to a credit or by-line, or to none if they choose if they mandate that the authorship of the work not be disclosed (i.e. it should remain anonymous). The right of integrity bars intentional distortion, mutilation, or other modification of a work if that distortion is likely to harm the author's reputation, and prevents the destruction of any work of recognized stature. It allows the author or artist to object to any derogatory treatment (Holderness, 1998).
Measures to Control Unauthorized Use
Safeguards like digital licensing and technological remedies such as encryption and digital watermarks exist. Digital Object Identifiers (DOI) can track copyrighted materials. Sometimes an author password protects access to material. Other technologies that hinder unauthorized copying online or off are in various states of research and development. Intentional circumvention of technological measures to control unauthorized access to a work is prohibited under the DMCA. It is also illegal to manufacture or distribute a technology that would gain the means to defeat technological measures to protect the rights of owners (Band, 1998).
Electronic copyright management systems are basically databases containing information about the content of products and works that conceivably could be used to authorize the use of these works by others. This could be managed by a third party or an international agency (presumably, for payment). As yet, no global system exists for collective administration to clear content of transmitted or digital copyrighted works. To be viable, it would need to take into account both national laws and internationally negotiated treaty. A universally acceptable system would also need to negotiate which countryís protection laws take precedence, the place where something is electronically transmitted or where it is received.
Licensing agreements determine the terms of use, and entail the power to deny access to information. Licensing has not worked, thus far, for distance education. Current licensing methodologies are not sufficient to allow students the ability to use copyrighted works for educational purposes. Obtaining permission means delays and often the costs to use licensed materials are prohibitive. Perhaps a well-designed system of making "micro-payments" to authors or artists could be implemented, but it would be difficult to enforce. This also could put undue financial burden on content providers or students who rely on the Internet, and could exasperate the "digital divide" between the richest and the poorest students.
Public Domain Materials
Much material that is on the Internet is in "the public domain," meaning people are free to copy or use it since the copyright ownerís exclusive rights expired. It is a myth to believe that anything people put on a Web server is in the public domain just because it is made available. As simple as it is to do, people are not free to copy from the Internet without getting permission.
Patents, Trademarks and Trade Secrets
Design patents for inventions and processes that are electrical, mechanical or chemical in nature should be registered with the U.S. Patent Office. This is necessary to gain protection, or to exclude others from duplicating the idea and commercially marketing it. The invention must meet the requirements of novelty, utility and there must be nothing in any printed publication in the world that describes this invention. Unlike copyright law, this is no automatic protection. This could apply to Distance Education if staff members develop an original software program for manipulating images.
Trademarks are devices used in commerce to identify business goods or services, and are protected if they are filed and registered. Logos, images, symbols and even words (slogans) can all be considered trademarks. Trade secrets include valuable information that is not generally known to the public, and can only be protected under state laws. (Brinson and Radcliffe,1996).
Network Servers & Online Service Providers
The institution providing distance learning is responsible for the technological delivery or conveyance of courses. Liability to the network server that provides Internet or intra-net access for copyright infringement that occurs during the course of providing remote instruction has also come into question. At this point, the Online Service Provider (OSP) is not liable if they take down the infringing material after the copyright owner orders them to "cease and desist" transmission. The network server or OSP is not responsible for content placed online.
Electronic Lists (Listservs) and Discussions
It is not allowable to include quotes or citations of another authorís works within a posting to an electronic bulletin board or discussion group without obtaining express permission.
Administrative & Institutional Policies
Established policies that anticipate any potential problems that might occur with the creation of online courses or distance learning should be in place before an institutionís faculty develops distance education programs. This will not only enable faculty to feel confident in sharing their intellectual property through distance learning media, but will assure administrators that what the professors do wonít hurt the institution. Institutions must have reasonable assurances that their staff and faculty will avoid unlawful uses of copyrighted works. Written policies protect an institution from liability if a genuine effort has been made to educate and increase awareness about intellectual property issues. The institution should facilitate access to legal measures to gain licenses and copyright permission. There also needs to be criteria for establishing ownership, future use and distribution rights for material produced by faculty, students, and the institution and logical consequences for violation of institutional policies. Ideally, an educational institution that provides distance learning should designate an agent to respond to complaints of illegal copyright infringement or to resolve conflict of interest issues.
New Challenges, Few Answers
Legislation and accepted practice must change and adapt in order to make the most out of the possibilities of distance learning. The fairness of intellectual property law and recognition of ownership of ideas by contributors must be balanced with the necessity of access and open-ended discussions. (Chang, 1998). Without the support and confidence of distance educators in their ability to protect their rights after publishing on the Internet, asynchronous learning and web-based classes will not flourish. Faculty members already uncertain about the uses of technology will gain yet another excuse for not updating their teaching and delivery methods to accommodate the changing need of students. (Naylor, 1985) (Parrott, 1995). Guiding principles should determine the extent of digital istance learning exemptions to copyright law until binding legislation has been enacted by Congress and signed into law.
The Distance Educatorís Annotated Bibiliography/
Webography
of Online Intellectual Property and Copyright Resources
American Association of University Professors, Statement on Distance Education, Preamble at: http://www.aaup.org/spcdistn.htm
American Association of University Professors, Committee R on Government Relations, Report on Distance Learning, In June 1998, the Council of the American Association of University Professors established a Special Committee on Distance Education and Intellectual Property Issues. The committee prepared two policy statements, the first on distance education, and the second on copyright. Links to both are at: http://www.lawworks-iptoday.com/
Band, Jonathan, The Digital Millennium Copyright Act discusses recent U.S. changes to copyright law in relation to WIPO Copyright Treaty and circumvention of copyright protection systems at: http://www.arl.org/info/frn/copy/band.html
Bitlaw, a resource on Technology Law, lots of information, very clearly explained at: http://www.bitlaw.com/copyright/fair_use.html
Brinson, J. Dianne and Mark F. Radcliffe, (1996) An Intellectual Property Law Primer for Multimedia and Web Development, although dated, if you read only one document this is the one that most clearly lays out the issues at: http://www.eff.org/pub/CAF/law/ip-primer
Bruwelheide, Janis H. (1995), Copyright Issues for the Electronic Age, ERIC Digest, at: http://www.ed.gov/databases/ERIC_Digests/ed381177.html
Carnevale, Dan, (2000), Duke University Policy Sets Rules for Online-Course Ownership & Conflicts of Interest article from the Chronicle of Highter Education at: http://chronicle.com/free/2000/05/2000052301u.htm
Chang, Vivian (1998), Policy Development for Distance Education, ERIC Digest at: http://www.ed.gov/databases/ERIC_Digests/ed423922.html
Congress of the United States of America (105th), Digital Millenium Copyright Act, final joint version of H.R. 2281, DMCA, October 20, 1998, signed into law Oct. 28, 1998 as Public Law 105-304 at: http://www.eff.org/ip/DMCA/hr2281_dmca_law_19981020_pl105-304.html
Copyright Bay, George Washington University graduate students
developed "Copyright Bay". This site uses coastal metaphors
to help teachers and faculty navigate "Fair Use Harbor"
with guidelines on what can be copied or posted on-line. The site
includes "Dist-Ed Point" which is very close to the
dreaded "Infringement Reef" at:
http://www.nmjc.cc.nm.us/copyrightbay/coprbay.htm
(Beware broken links)
Copyright Website, The, U.S. Centric Copyright Website accents some notorious pillagers of copyright in visual, audio, and digital formats and has constantly updated information on laws as well as forms at: http://www.benedict.com/contents.htm
Duke University School of Law, Copyright Society of the U.S.A.; This nonprofit corporation fosters the study of copyright law in literature, music, art, the theatre, motion pictures, and other forms of intellectual property. http://www.law.duke.edu/copyright/index.htm
Educause, (April, 1999) Current Issues: Copyright Office Conducts Study on How to Promote Distance Education through Digital Technologies outlines recommendations from the comprehensive report to Congress on how best to update section 110 (2) to allow for "fair use" exemptions at: http://www.educause.edu/issues/digitaltech.html
Enghagen, Linda K., J.D.(1999) Educators, Technology and the Law- Common Questions/ Direct Answers, an attorneyís point of view on questions of "fair use" concerning software, video and the Internet at: http://www.horizon.unc.edu/projects/resources/educators.asp
Gervais, Daniel J., (Dec., 1998) Electronic Rights Management and Digital Identifier Systems an article at the web site of the Copyright Clearance Center tht discusses technical solutions and analysis their progress and success at: http://www.copyright.com/News/JEP_March1999.html
Harvard Law School, The Berkman Center for Internet & Society, Intellectual Property in Cyberspace, Free Open Learning Class, Lawyers, legal scholars, judges, lawmakers, and Internet users disagree concerning how the existing set of legal rules should be applied to this ownership of information on the Internet. This site also explores whether and how those rules should be modified to manage the medium better at: http://eon.law.harvard.edu/property/syllabus/
Holderness, Mike (1998), Moral Rights and Authors' Rights: The Keys to The Information Age at: http://elj.warwick.ac.uk/jilt/infosoc/98_1hold/
Intellectual Property Today, This online publication with 20,000+ subscribers focuses solely on patent, trademark and copyright law. They have been called the "bible" of intellectual property law. at: http://www.lawworks-iptoday.com/
Intellectual Property Rights Organization, Intellectual Property Rights and Their Protection, this site from the United Kingdom provides a more global view of digital issues and links to the World Intellectual Property Organization and amongst sites at: http://inf2.pira.co.uk/top007.htm
Library of Congress, U.S. Copyright Legislation This site has an overview of recent legislative changes in the copyright law, revised from the 106th Congress, with Links to DMCA introduced at the 105th Congress at: http://lcweb.loc.gov/copyright/penleg.html
Lutzker, Arnold P. and Susan J., and Carl Settlemyer, III, (1998), The Digital Millennium Copyright Act Highlights of New Copyright Provision Establishing Limitation of Liability for Online Service Providers, at http://www.arl.org/info/frn/copy/osp.html
Mann, Charles (1998), Who Will Own Your Next Good Idea? This Atlantic Monthly article (in 3 parts) explores the legalities of translating works from foreign languages and intellectual property in the Information Age, talks about the future of copyright and the impact of inventions like electronic paper. at: http://www.theatlantic.com/issues/98sep/copy.htm
Morrison, James L. , Intellectual Property, Copyright and Distance Learning, a University of North Carolina Law School website that seeks to link articles that post substantive arguments regarding distance learning and copyright protection at: http://www.horizon.unc.edu/projects/resources/intellectual_property.asp
National Education Association (NEA), Center for Educational Technology, Technology Briefs, A series of Technology Briefs including, Intellectual Property Rights, and Distance Education. Discusses the lucrative business of universities that have generated millions of dollars by licensing and patenting intellectual property generated by their faculty members at: http://www.nea.org/cet/briefs.html
Naylor, Michele (1985) Adult Development: Implications for Adult Education. Overview, ERIC Digest No. 41, at: http://www.ed.gov/databases/ERIC_Digests/ed259211.html
Parrott, Sarah (1995), Future Learning: Distance Education in Community Colleges, in ERIC Digest at: http://www.ed.gov/databases/ERIC_Digests/ed385311.html
Tulchin, Harris, Media Lawyer: Copyright and Related Issues for Multimedia and Online Entrepreneurs, Lecture Notes for UCLA Multimedia Law Classes at: http://www.medialawyer.com/lec-copy.htm
University of Texas System, Copyright for Distance Learning, very current summary of issues plus a Copyright Crash Course Tutorial at: http://www.utsystem.edu/OGC/IntellectualProperty/distance.htm
University of Texas System, Sample Educational Materials Agreements including copyright use permission letters at: http://www.utsystem.edu/OGC/IntellectualProerty/edmatrls.htm
The U.S. Copyright Office was created "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries" (U.S. Constitution, Article I, Section 8)/ The official web site is at: http://lcweb.loc.gov/copyright/
The U.S. Copyright Office, Report on Copyright and Digital Distance Education, the entire 353 page Adobe Acrobat document can be downloaded as a PDF file at: http://www.loc.gov/copyright/disted/
About the Authors:
L. Heidi Primo is currently a distance education graduate student in ìEducational Technology Leadershipî (ETL) through the George Washington University, living on the Big Island of Hawaii. She works full time as an Educational Specialist for the State of Hawaii teaching male and female inmates in the Hilo jail. In the past, she taught pre-primary and elementary classes in public and private schools. After completing a Masterís program in ìPacific Island Studiesî at University of Hawaii at Manoa, she became a full-time faculty member in the Divisions of Social Sciences and Education at the College of Micronesia-FSM in 1993. Ultimately, this led to a 3 year job in the Presidentís Office for the National Government of the Federated States of Micronesia doing public education, policy analysis, and research as well as United Nations negotiating on the topics of Climate Change, Coastal Zone Management and Sustainable Development. Ms. Primo may be reached via email: L. Heidi Primo <mindweave@hotmail.com>
Teresa Lesage lives in North Pole, Alaska, and recently completed the George Washington University ETL Masters Degree program as a distance learning student. She teaches second grade in a classroom that has 11 computers. She incorporates CCTV, online lessons, the Internet and HyperStudio into most of her lessons. Her 14-year old son is a competitive swimmer and one of the 16 fastest 200-meter butterfly swimmers in his age group in the nation. Her husband retired from the Navy last year, and is setting up his first classroom this year as a K-1 multi-age teacher. Ms. Lesageís email address is: Teresa Lesage <lesage@ptialaska.net>