Note: The information provided in this site is for informational and guidance purposes only and may not be construed as legal advice. If you have specific issues or areas that need clarification, you are encouraged to consult with a qualified attorney.

Copyright FAQ's What is Copyright? Is it Fair Use? How do I get Permission? Can I use it on the Web? What do Students Need to Know? Who Owns the Work? How do I Protect my Work?

Background | The Issues | Misconceptions | DMCA | The TEACH Act

Prior to November 2002, parameters for the use of copyrighted materials in the cyber environment were not well defined and there was a lot of disagreement between all parties about what was and was not permitted.

Digital technology offers significant advantages for access, increased capacity and speed of distribution, making it a natural channel for marketing and distributing intellectual property in digital formats and via the Web. Those qualities pose serious challenges to controlling access to and the use of copyrighted material by others. The conflict between the ideal of 'freedom of access' to anything on the Web, and the desire to protect copyrighted material posted in easily accessible formats and locations, poses a dilemma that caught educators squarely in the middle.

Fortunately, we have some leeway as educators, and the landscape is much clearer now. There are two major Federal laws that impact your ability to use copyrighted materials in digital formats, Web-based resources and course sites: The Digital Millennium Copyright Act of 1998 and the TEACH Act of 2002. But before we get into the specifics, let's review some key points:

Under U.S. Copyright Law the following are commonly accepted:

1. The accepted definitions of 'copying' include:

• work placed on computer disk, Zip disk, CDROM, DVD or other storage device, or works stored in RAM for more than a brief period
• printed work scanned to digital file
• digitized still images, motion, and sound media
• digital files uploaded to server and downloaded from server
• files transferred between network users
• dumb terminal access to files on computer

2. For e-mail, bulletin boards, discussion boards:

• Copyright remains with the writer. The receiver has no right to copy or further distribute the material against the writer's wishes.
• Users of a system (network, shared software, shared Web site) may agree to waive their rights in exchange for access.

Businesses, publishers, distributors, museums and other copyright holders have two major concerns:

1. The potential that you might infringe on their rights by incorporating copyrighted materials (from the Web or other 'published' sources) in your Web sites. Remember, the rights reserved to the owners of protected works include:

• the right to reproduce the work

• the right to create derivative works

• the right to display the work

• the right to disseminate the work

Web publishing has the potential to infringe on all of these rights.

2. How you use the materials and resources they post to their Web sites. This concern relates to "ethical rights:" the right to ensure that the nature, intent or character of the work is not compromised.

For educators and librarians the major concerns are:

1. the need and right to use copyright protected resources for teaching or scholarship without infringing on another authors' rights (or incurring unreasonable expense!)

2. the need to provide students and faculty with the easiest way to access the broadest range of materials possible – at a reasonable cost

3. your need as a creator of intellectual property and creative works to preserve your copyright interests

Misconceptions About Copyright

There are some misconceptions about the relationship between copyright materials and the Web that have serious implications for how you and your students use materials posted to the Web, or the sources and materials they find there for subsequent use:

• ‘Implied consent' - Merely posting something to the Web cannot be taken as an immediate grant of permission for anyone to use that material in any other way or context, other than the intended display.
• ‘No copyright marks' - The absence of a copyright marking or notice does not mean that the material is not copyrighted, or that the creator doesn't care if you copy the material. All works that qualify as original and creative are automatically protected by copyright, and the requirement for copyright marking and identification was eliminated in the U.S. in 1978. Copyright notification is entirely optional.
• Fair Use covers any educational use. There are limits and restrictions on what you can and cannot do as a Fair Use. The amount of material to be used should be limited; the distribution and use should be restricted to authorized users; and the length of time for the use is limited. There are also specific requirements for acknowledging the original sources.

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Now that we're familiar with the issues and potential problems, let's consider what we can and can't do with copyrighted materials in digital formats and for uses on the Web. As we noted, there is some degree of leeway, but there are some important caveats and limitations to consider. Two Federal laws impact your ability to use copyrighted materials in digital formats and as Web-based resources and course sites: The Digital Millennium Copyright Act of 1998 and the TEACH Act of 2002.

DMCA: The Digital Millennium Copyright Act, 1998

U.S. Copyright Office. Digital Millennium Copyright Act of 1998,
U.S. Copyright Office Summary. Washington D.C., December 1998.
Full text available from http://lcweb.loc.gov/copyright/legislation/dmca.pdf (PDF)

The Digital Millennium Copyright Act was signed in October 1998 after months of debate and discussion. The act has three major provisions that impact educational uses of copyrighted material:

Title I of DMCA (17 U.S. Code, Section 1201) implements two international treaties on digital issues and copyright protection (The WIPO Copyright Treaty Act and the WIPO Performances and Phonograms Treaty). The WIPO treaties provide for international standards for intellectual property protection, and protection of copyrighted works, performances and sound recordings from international piracy. In effect, this provision brings U.S. Copyright Law in to conformity with international law. A significant and controversial element of this section (17 U.S. Code, Section 1201 (a) (1)(A) established criminal penalties and significant fines for disabling or circumventing technology-based copy protection mechanisms included in copyrighted products (CDs, DVD) and intentionally distributing information about techniques or tools intended to disable or circumvent copy protection technology.

Title II of the DMCA outlines several provisions that are important to educational institutions and practitioners:

1. DMCA establishes a 'safe harbor' for online service providers (ISPs), stating that the provider can't be held liable for unknowingly transmitting copyrighted works for its users. The DMCA also establishes specific guidelines for the ISP to remove material that appears to be an infringement. Under this provision, a university that provides Internet service for students, faculty and staff cannot be held liable for copyright infringements 'posted' to web sites or transmitted over its network. The university also has a responsibility as the ISP to respond to claims of infringement, require users to remove the infringing material, and to impose appropriate penalties for failure to comply.
2. DMCA limits the institutions' liability when faculty members use its facilities for electronic publishing.
3. The act upheld the doctrine of fair use as a viable defense in copyright infringement cases.
4. DCMA updated the library copyright exemptions to permit broader use of digital technology.
5. DMCA directed the register of copyrights to research and submit recommendations for promoting distance education through digital means.

Overall, reactions to the DMCA have been mixed. While most commercial providers view the law as appropriate and seek higher levels of enforcement, many educational institutions, libraries and technology-related associations view it as excessive and restrictive. The activities that have generated the most publicity and several visible court cases are peer-to-peer file sharing and anti-circumvention measures. The file sharing issue involves enforcement of DMCA conditions for educational ISPs, due to students use of campus networks to share illegally acquired music and movie files. The anti-circumvention issue is more complex: software developers believe they have valid reasons to circumvent protection technology for reverse engineering research, and library specialists believe digital protection measures unnecessarily restrict the library's ability to provide reasonable and cost-effective access to these materials for their patrons.

To date there have been no court actions filed against individual educators for activities related to their instructional activities.

Technology, Education and Copyright Harmonization (TEACH) Act, 2002

The Technology Education and Copyright Harmonization Act, popularly known as the TEACH Act, was passed by the Senate and became effective on November 2, 2002. The TEACH Act represents a major advance in thinking about how copyright, educational uses and digital applications intersect; and it offers a measure of clarity and direction for copyright applications for the Web that has been lacking for nearly three decades. Since its passage, there has been lots of discussion and misunderstanding about the implications of the act, and how it impacts our ability to use copyrighted works in digital formats, but the leading authorities in this field agree on the following key points:

1. Contrary to some early interpretations, the TEACH Act does not give us any new rights; it simply expands the scope of our rights as educators to perform and display copyrighted works (and make the copies needed for such display or performance) in the classroom to include digital distance education.
   
2. Most authorities in this area interpret TEACH provisions to include any digital distribution to students in the context of organized course activity regardless of location, so uses in courseware formats, or in individual course Web sites are included, even if you are not engaging in true distance education.
   
3. In essence, the TEACH Act makes what you can do online closer to what you can do in the classroom. For example, in the face-to-face classroom, you can show or perform any work related to the curriculum, regardless of the media format, without any limitations: still images, musical recordings, videos, film or DVD, texts, periodicals, etc. In the classroom you can use the entire work and repeat it as often as you wish. Under the TEACH provisions you are permitted to use copyrighted works in digital distribution formats that are:
   • performances of non dramatic literary works
   • performances of non dramatic musical works
   • reasonable portions of performances or display of any other work, comparable to that typically displayed in a live classroom setting.

 

You may not use: Digital education works, created or marketed specifically for online learning/distribution, or works you know (or reasonably suspect) are not lawfully made copies.

4. Works used in digital distribution must be used under the following conditions:
   • They must be an integral part of the class experience.
   • They must be part of a systematic mediated instructional activity.
   • They must be directly related to and of material assistance in teaching the content.

   They may not be used as:

   • Supplemental activities, reading assignments, self-study activities or other activities that would typically take place outside the classroom.
   • Substitutes for textbooks, workbooks, course packs or other materials that the student would normally purchase.

5. There are additional requirements of the TEACH Act involving limits and conditions. For example: putting anything online requires making a copy of it. TEACH authorizes this kind of copying but only to the extent authorized under Section 110-2 of the Copyright Law and only if they are not available digitally in a format free of technological protection.
   • You can copy portions of material from an analog source (still images, audio recording, video recordings) and convert them to digital format if the original is not available in a digital format
   • You can copy portions of analog material if the available digital version is technologically copy protected.
   • You cannot copy material from a DVD or other digital source that is protected by technological means. It is illegal to circumvent the protection technology.

6. There are requirements regarding the security of and restricted accessibility to the material digitized and placed online.
   • The digital material must be maintained on a secure server.
   • Access to the material must be restricted to students enrolled in the course and the course material must be password protected.
   • The material should incorporate technological measures to reasonably prevent students from retaining copies of the works or distributing it to others.
   • You must not interfere with technological measures intended by the copyright owner to protect the work.
   • The materials may be retained in accessible form for the duration of a class session. (This provision is poorly defined. Some interpretations indicate the material should be made available to students for specific, limited periods of time, or capable of being turned on and off by the instructor.)

7. You need to be aware that there are alternatives to explore if you cannot meet the conditions of the TEACH Act, such as:
   • using alternative means to deliver materials to students, including course packs, library reserves (print and online) or links to external online sources
   • securing permission from the copyright owners for the use of materials beyond the limits of the law
   • applying the Fair Use principle of the U.S. Copyright Law of 1976, which has a broader scope that may allow the intended use beyond those defined in the TEACH Act

For additional information about the TEACH Act, these are some of the best resources we've found:

1. Analysis of the TEACH Act , prepared by Georgia Harper, University of Texas System Copyright Management Center
2. Article by Kenneth Crews (PDF) of Indiana University School of Law, prepared for the American Library Association
3. “The TEACH Tool Kit”   from North Carolina State University Libraries and Office of Legal Affairs

Working With the TEACH Act at Towson

CIAT has developed a TEACH GUIDE to help you with developing resources under the TEACH provisions.

• TEACH Guide (PDF)

The packet includes:

• a TEACH Act checklist to help you determine if the use you plan is appropriate under the provisions and conditions of the act
• recommendations on formats, file conversion, compression and protective measures you can use to comply with the technology requirements
• a process guide to
  • creating and posting media files for copyrighted materials on your own
  • the procedure for securing CIAT assistance in developing media files for your project
• recommendations and instructions for managing your own media files

If you need further information or wish to discuss a particular situation, e-mail Rick Davis, cataloging librarian for Cook Library, at rkdavis@towson.edu or call 410-704-4116.