Copyright, Ownership, Fair
Use, DMCA, and the Online
Environment
Kimberly B. Kelley, Ph.D.
University of Maryland, University
College
Intellectual Property Issues
Fair Use – when is it OK and when do I
need permission?
 The Congressional Guidelines.
 The Guidelines for Multimedia.
 The Guidelines for Images.
 Ownership – “who owns this course?”

Fair Use Guidelines for
Educators

Guidelines for Reproduction (photocopying) of
copyrighted materials:
– brief
– spontaneous
– not cumulative

Guidelines for multimedia
– http://www.libraries.psu.edu/mtss/fairuse/guidelinedoc.
html

Proposed guidelines for images
– http://www.utsystem.edu/OGC/IntellectualProperty/ima
gguid.html

Safe harbors, not law
Online Materials and
Copyright

The copyright holder has the same rights
regardless of the format of the work (e.g., online,
Web-based, CD-ROM).
 The right to copy the work remains with the
owner, this includes a copy to your computer.
 If you make a copy for your personal use, it is
likely to be regarded as fair use. If you post it to a
public Web site, it is unlikely to be considered fair
use
Guidelines for Using Online
Materials

Check if the copyright holder provides
information on how his/her document or
computer program may be used.
 If possible, get permission from the
copyright holder and keep a record of the
permission granted.
 If you intend to use something repeatedly,
get permission.
What is Copyright?

Exclusive rights to publish, copy, and
distribute an author’s work, conferred on
the owner of copyright by 17 USCS 106,
vest in author of original work from the
time of its creation.
 Intent: to advance the progress of
knowledge by giving the author of a work
an economic incentive to create new works.
What Can Be Copyrighted?

Tangible, original expression
 Three Fundamental Requirements:
– Fixation
– Originality
– Minimal Creativity

Literature, drama, art, and music
What Cannot be Protected by
Copyright?

The “Public Domain”
– Ideas
– Facts
– Words, names, slogans

Blank Forms
 Government works (e.g., judicial opinions,
public ordinances)
What Cannot be Protected by
Copyright Continued:

Documents created by employee of the
Federal Government
 Works for which copyright was not obtained
or has expired.
What Does Copyright Protect?






The right to make copies
The right to sell or distribute copies of a work in
public
The right to prepare new works based on the
copyrighted work
The right to perform the work in public
The right to display the work in public
Protection lasts for the creator’s lifetime plus 70
years
Good Reasons for Fair Use

You are making a productive use of
someone else’s creativity in which the other
person’s creativity is an indispensable
component:
– Example 1: Literary criticism. You must quote
an author’s work in order to critique it.
– Example 2: Parody. You must use some
elements of an author’s work in order to satirize
it.
Good Reasons for Fair Use
Continued

You are engaged in one of the public
interest activities that Congress has
explicitly recognized:
– Criticism
– Comment
– News reporting
– Teaching, scholarship, or research
Good Reasons for Fair Use
Continued:

What you are taking is too trival for the law
to note: “De minimus non curat lex.”
 What you are doing has no commercial
impact on the author, not even a lost
opportunity
How to Judge Fair Use

Purpose and character of the use.
– Commercial vs. non-profit educational purposes.

Nature of the copyrighted work.
 The amount of the work used.
 The effect of the use on the market potential of the
work.
 NOTE: all four factors are weighed, no one factor
ensures fair use.
Congressional Guidelines for
Multiple Copies for Classroom
Use

The copying must meet the “brevity” and
“spontaneity” tests.
– Brevity – limits how much you may copy
– Spontaneity – the inspiration to use the work
happens suddenly, making a request for
permission virtually impossible. The “one
semester” rule.
Fair Use Copying Guidelines
for Instructors

Single copies:
– A chapter from a book (not the entire book).
– An article from a periodical or newspaper.
– A short story, essay, or poem whether from an
anthology or not.
– A chart, graph, diagram, drawing, cartoon, or
picture from a book, periodical, or newspaper.
Congressional Guidelines for
Instructors: Limits

MUST acknowledge the creator in all
instances.
 Special Works:
– “works which often combine language and
illustrations and which are intended sometimes
for children and other times for a general
audience.”
– May NEVER be copied in their entirety, an
excerpt of 10% or less may be used.
Cumulative Effects

The copying may be for only one course.
 No more than one short poem, article, story, or
essay or two excerpts from longer works by one
author.
 No more than three works from the same
anthology, collective work, or periodical volume.
 No more than 9 instances of multiple copying
during a semester.
Prohibited Copying

Multiple copies may never be used to
substitute for the purchase of books,
publisher reprints, or periodicals.
 Multiple copies cannot be used to create an
anthology or compilations to substitute for
purchase of works.
 The same instructor may not copy the same
items from semester to semester.
Examples in the Law

Marcus v. Rowley
 Harper & Row v. Nation Enterprises
 Basic Books v. Kinko’s Graphic
Corporation
Different Uses of Digital
Resources in Teaching

Identifying and referring students to free and
proprietary resources on the Web.
– Free links from a Web page or through an instructional
management system (e.g., Blackboard, WebCT)
– Commercial library databases.

Retrieving resources from the Web for inclassroom use.
 Electronic reserves.
Online Materials and
Copyright

The copyright holder has the same rights
regardless of the format of the work (e.g., online,
Web-based, CD-ROM)
 The right to copy the work remains with the
owner, this includes a copy to your computer.
 If you make a copy for your personal use, it is
likely to be regarded as fair use. If you post it to a
public Web site, it is unlikely to be considered fair
use.
Guidelines for Using Online
Materials

Check if the copyright holder provides
information on how his/her document or
computer program may be used.
 If possible, get permission from the
copyright holder and keep a record of the
permission granted.
 If you intend to use something repeatedly,
get permission.
Educational Multimedia
Guidelines

Definition:
 “educational multimedia projects that incorporate
educators’ original material, such as course notes
or commentary, together with various copyrighted
media formats including motion media, text
material, graphics, illustrations, etc.
 For use, without permission, of portions of
lawfully acquired copyrighted works.
Guidelines Continued:

The guidelines provide safe minimums.
More copying may be considered fair use.
 The work incorporating copyrighted works
may only be used for learning activities.
 It is only considered fair use for two years
after the first instructional use.
When is Permission
Required?

When you plan to use the project for
commercial purposes.
 When you intend to duplicate the project
beyond the amounts permitted in the
guidelines.
 When you plan to distribute the project
beyond the guidelines.
Copyright Compliance: Tips

Permanent course content? Get permission.
 Required or recommended reading? After
first use, get permission.
 Links to other Web sites? No need.
 Referral to online databases? No need.
 E-reserves or coursepacks? Get permission.
Scenarios for Discussion: Is It
Fair Use?

Nancy, a book reviewer, quotes several
passages from a novel in her book review.
 George, an international management
professor, incorporates a 30 second
commercial into his online course.
 Phil, a historian and biographer, quotes
from several unpublished letters and diaries
written by his subject.
Scenarios for Discussion: Is It
Fair Use?

John, an English professor, puts up a Web page for
his class which contains three poems by Emily
Dickinson.
 Kate, a computer instructor, creates her own Web
page with contains 10 animated icons from John
Doe’s page.
 Betsy, a business professor, puts up three articles
on her personal Web page for student use.
Scenarios for Discussion: Is it
Fair Use?

Alice, a law professor, puts up the text of the
Supreme Court decisions on three cases in her
online course.
 Emily, a geography professor, puts up three
articles in her online course for students to
download.
 Eric, a computer science faculty member, creates a
webliography with links to hundreds of Web sites
for his online students to use.
The Digital Millenium
Copyright Act

Outlines how copyright will be handled in the
digital environment.
 No digital copies permitted .
 Briefly addresses university uses. It is OK to
make a digital copy if:
– A faculty member is performing a teaching or research
function, not an administrative function.
– A faculty’s infringing activity does not involve the
provision of online access to materials that were
required or recommended within the preceding three
year period.
The DMCA: The University
and the Faculty

The institution has not, within the preceding
three year period, received more than two
notifications of infringement by such
faculty member.
 The institution provides all of its users with
informational materials that accurately
describe and promote copyright compliance.
Liability under DMCA

Faculty and/or the institution are liable for
copyright infringement.
 Distance education is not exempt.
 Institutions need a point of contact.
 Copyright infringement claims must be
pursued.
Who’s Liable?

Professor Appleby not only teaches courses
for USM, but provided administrative
support by showing fellow faculty members
how to create and post Web pages. For
those faculty members who do not have a
Web page, Appleby gives them a sample
web page to work with. On a sample page,
there is a graphic from an Andy Warhol
painting. The Warhol estate sues.
Who’s Liable?

Professor Boulder, in performance of her
teaching function, posts her syllabus to the
university’s server. She recommends, but
does not require, her students to read Martin
Luther’s speech, I have a Dream which she
posts, in entirety, along with her syllabus on
her Web page. Coretta Scott King sues.
Who’s Liable?

Professor Conway, in performance of his
teaching duties, responds to a student’s
email inquiry asking him to suggest a poem
which the student can model. Conway
sends the student, through the university’s
Web server, a poem by Carl Sandburg. The
estate of Carl Sandburg sues.
Additional Resources

The Center for Intellectual Property and
Copyright in the Digital Environment:
http://www.umuc.edu/distance/cip
 Copyown:
– http://www.inform.umd.edu/CompRes/Nethics/
copyown/

The Copyright Management Center
– http://www.iupui.edu/~copyinfo/disted.html