RAMCT: COPYRIGHT AND
FAIR USE IN
ON-LINE INSTRUCTION
Linda Schutjer
Senior Associate Legal Counsel
Colorado State University System
WHAT IS COPYRIGHT?
 Copyright
is a form of protection
provided by the laws of the United
States to authors of original works of
authorship.
 It is available for both published and
unpublished works.
 It generally gives the owner of the
copyright exclusive rights to the work
for a period of time before the work
goes into the public domain.
WHAT DOES COPYRIGHT PROTECT?
Works of Authorship –
A Person’s Unique Way of Saying
Something
 Fixed in a Tangible Medium – Does
not have to be directly perceptible as
long as it can be communicated with
the aid of a machine or device
 Original
COPYRIGHT EXEMPTIONS
§107
- Fair Use Doctrine
§109 - First Sale Doctrine
§110 – Education

Exemptions
110(1) – Classroom or face-to-face teaching
 110(2) – TEACH – distance education

FOUR FACTOR FAIR USE TEST
 Purpose
and character of the use
 Nature of the copyrighted work
 Amount and importance of part
used
 Effect on the potential market for
or value of the copyrighted work
WHAT IS THE PURPOSE OF THE PROPOSED USE?
Favors Fair Use:
Not for Profit
 Teaching
 Research/Scholarship
 Criticism
 Commentary/
Reporting
 Parody
 Transformative
 Restricted Access

Does Not Favor Fair Use:
For Profit
 Commercial
 Entertainment
 Lack of Attribution
 Bad Faith Behavior

WHAT IS THE NATURE OF THE WORK TO BE USED?
Favors Fair Use:
Factual
 Published
 Not Copyrightable:

Listings of
ingredients/contents,
directions
 Ideas, concepts,
methods, processes
 Works authored by the
US Government

Does Not Favor Fair Use:
Creative
 Entertainment
 Consumable Materials
(workbooks, answer
sheets)

HOW MUCH OF THE COPYRIGHTED WORK WILL
BE USED?
Favors Fair Use:
Small amount
 Only as much as
necessary for the
educational purpose
 Only used for a limited
period of time

Does Not Favor Fair Use:
Large portion or entire
work
 Most important or
significant portion – the
heart of the work
 Used year after year

WHAT IS THE EFFECT ON THE MARKET OR
POTENTIAL MARKET FOR THE WORK?
Favors Fair Use:
User owns lawfully
acquired copy
 No significant effect on
market
 Copyright holder not
able to be identified or
located
 Item out of print or
otherwise not available
for purchase

Does Not Favor Fair Use:
Replaces sale of
copyrighted work
 Numerous copies
made
 Use makes copy
publically available on
the internet
 Copyright permission
readily available

FIRST SALE DOCTRINE
Section 109 allows for the sale of a copyrighted
work without transferring the underlying
copyright.
 Once you have bought a physical copy of a
copyrighted work, you can re-sell that work
without it constituting a violation of the author’s
copyright.
 In most cases you can even make new works that
incorporate the physical work you bought without
violating the author’s copyright – e.g. incorporate
physical books into a piece of sculpture.

CLASSROOM TEACHING EXCEPTION
 Instructors
and students at a non-profit
educational institution may use, display, and/or
perform in a classroom environment any
copyright-protected material or work
PROVIDED THAT:
 The
work used was legally obtained
 The intended use of the work is strictly
educational
 Distribution is in a location designed primarily
for educational purposes
 Teaching and learning occur simultaneously
(e.g. not a recording)
See TILT Guide: Copyright Essentials for Educators
TEACH ACT
 Technology,
Education and Copyright
Harmonization Act of 2002
 Total revision of distance education
exemption
 Attempts to equalize distance
education and classroom teaching
TEACH ACT
§110(2)
– Distance education –
digital transmissions of displays
of works via digital networks,
including still images, in amounts
comparable to typical face to face
teaching which transmissions are
made to students officially
enrolled in the class no matter
where the students are located
TEACH ACT (CONT.)

Performances of the following are
allowed to be transmitted:
An entire non-dramatic literary or
musical work
Readings from novels, poetry and
textbooks
Pop music, symphonies
“Reasonable and limited” portions of
other works
Dramatic works
Audiovisuals
REASONABLE AND LIMITED?

“Although what constitutes a ‘reasonable and
limited portion’ of a work is not defined in the
statute, the legislative history of the Act suggests
that determining what amount is permissible
should take into account the nature of the market
for that type of work and the instructional
purposes of the performance. For example, the
exhibition of an entire film may possibly constitute
a ‘reasonable and limited’ demonstration if the
film’s entire viewing is exceedingly relevant
toward achieving an educational goal; however,
the likelihood of an entire film portrayal being
‘reasonable and limited’ may be rare.”
Congressional Research Service Report
http://assets.opencrs.com/rpts/RL33516_20060706.pdf
TEACH ACT REQUIREMENTS
Institution
Technology
Instructor
Materials
INSTITUTION REQUIREMENTS
 Accredited
nonprofit educational
institution
 Institute copyright policies
 Provide informational materials to
faculty, staff and students on
compliance with copyright laws
 Provide notice to students that
course materials may be subject to
copyright protection
TECHNOLOGY REQUIREMENTS
 Transmission
of content limited to students
officially enrolled in the course
 Content cannot be retained longer than “class
session,” which is not defined
 Institution should take technological measures
to restrict use of content in violation of law
 Cannot interfere with technology control
measures
 No material can remain on the system longer
than necessary to facilitate transmission
 May retain copies of transmissions provided
only used such materials in compliance with
law (i.e. TEACH act)
INSTRUCTOR REQUIREMENTS
 Performance
or display of materials must
be made by, at the direction of, or under
actual supervision of an instructor
 The instructor must use the materials as
an integral part of a class session which is
offered as a regular part of systematic,
mediated instructional activities
 The materials used by the instructor must
be directly related to teaching content –
not for entertainment
 Instructor must use lawfully made and
acquired copy
MATERIAL REQUIREMENTS


“Digital Educational Work” -- Textbooks or other
material in any media which are typically purchased by
students for use in one or more class sessions may
not be used pursuant to the TEACH Act provisions
Analog works cannot be converted into digital unless:
No digital version is available or
 A digital version exists but cannot be accessed because it is
secured by a technological protection measure that
prevents access



Amount converted is limited to the amount that is
otherwise permitted to be used under the TEACH Act
Always include copyright notices/attributions on
materials
LINKS:
Links – You can generally link to materials in your
courses. Of course, review the website terms and
conditions before you do to make sure you comply
with any special requirements they have. You
should provide the hyperlink so that it is clear that it
is a link to materials outside of the class, as
“framing” can be a problem. Generally, you won’t be
liable for any infringement represented in the
materials you link to – unless you are aware of the
infringement and link anyway. That is another
reason to link via the web link rather than drawing
the materials into your actual course.
 http://www.bitlaw.com/internet/linking.html

INSTRUCTOR / STUDENT CREATED
MATERIALS:
 Author
is the owner under CSU policy so if
you are not the Author, you will need to
treat works by students or other faculty or
staff just as if it was third party materials
 If you do create your own materials, if they
include third party images or audio, you
will need to consider whether Fair Use or
the TEACH Act support your use or
whether you need to get permission from
the copyright owner
AUDIO/VIDEO:

Audio – Two Clearances Required:

Musical Composition -- notes, lyrics and melodies


Copyright(s) usually owned by the music publisher
Sound Recording – captured performance

Copyright usually owned by the recording company
Video – One Clearance – unless audio is included
or other copyrighted works shown or used
 Sampling is not “legal”
 Your use must be with permission or within an
exception such as fair use, classroom use or the
TEACH Act

HTTP://CCS.COLOSTATE.EDU
COPYRIGHT RESOURCES:
US Copyright Office:
 http://www.copyright.gov/
Two Good Sources for Broad Range of
Information:
 http://www.utsystem.edu/ogc/intellectualproperty/
cprtindx.htm
 http://www.lib.unc.edu/copyright/
Public Domain/Copyright term chart:
 http://copyright.cornell.edu/resources/publicdom
ain.cfm