Thoughts on copyright and fair use:
Charleen Worsham

The proliferation of and increased access to creative, scholarly and artistic works in digital form has brought the issue of copyright to the forefront of many industries as well as education. It is obvious that there is a lack of legal interpretation and case law to easily address the issues (Napster, for example.) "Cut and paste" technology and the current copyright law is not "cut and dried" issue. Schools have an ethical and legal responsibility "to respect the intellectual property rights of others, whether that property is available in printed or electronic form." (Weidner, 2001). All works on the Internet are in digital form; works that exist in digital form are literary works for purposes of the U. S. Copyright Law; and literary works are a category of intellectual property covered by copyright protection. (Tallman, 2000).

One important concept in U. S. Copyright Law is that of fair use. According to Section 107 of the Act, fair use of a copyrighted work for such purposes as criticism, comment, news reporting, teaching, scholarship or research does not constitute a copyright violation. There are four tests used in order to determine if the fair use exemption can be claimed. They are: 1) What is the purpose and character of the use? If there is commercial gain for the citing author, then fair use may not apply; 2) What is the nature of the copyrighted work? Factual works have greater public value, while fiction involves more creativity, therefore more copyright protection; 3) What is the amount and substantiality of the portion used in relation to the work as a whole? The more the work is used, especially the portion that presents the main idea or thesis, the less fair use can be claimed; and 4) What is the effect on the potential market for the value of the copyrighted work. An excellent website that gives examples of cases and the application of the four rules can be found at
www.iupui.edu/~copyinfo/highered2000.html

In determining if copyright infringement has occurred, these factors are analyzed on a case by case basis. Therefore, a final question must be asked which is "Would a reasonable copyright owner have consented to the use?" (Tallman, 2000). The best policy for institutions of higher education and their faculty to follow is that when copyright is in question, it is better to ask permission than to ask for forgiveness.

The DMCA recommended a further study of copyright issues as they relate to distance education. A piece of pending legislation is a result of this study. The summarized proposal and a portion of recent congressional testimony that illustrates the potential problems of schools regarding the issue follows.

http://thomas.loc.gov/cgi-bin/bdquery/z?d107:SN00487:@@@D&summ2=m&

Technology, Education and Copyright Harmonization Act of 2001 - Revises Federal copyright law to extend the exemption from infringement liability for instructional broadcasting to digital distance learning or distance education. Allows under specified conditions: (1) the performance and display of reasonable and limited portions of any copyrighted work; (2) the reproduction of such work in transient copies or phonorecords created as a part of the automatic technical process of a digital transmission; and (3) distribution of such copies or phonorecords in the course of such transmission, to the extent technologically necessary.

Revises the conditions of such transmission to: (1) require the performance or display to be made by or at the direction of an instructor as an integral part of a class session; (2) limit its reception to students officially enrolled in the course for which it is made or officers or employees of governmental bodies as part of their official duties or employment; (3) require transient copies to be retained for no longer than reasonably necessary to complete the transmission; and (4) require the transmitting body or institution to take specified actions to provide copyright protection of such works.

Extends the current ephemeral recording exemption, under specified conditions, to copies or phonorecords embodying a performance or display in digital form for use in making transmissions authorized by this Act.

http://www.arl.org/info/frn/copy/heeg0313.html

TESTIMONY OF GERALD A. HEEGER
PRESIDENT
UNIVERSITY OF MARYLAND UNIVERSITY COLLEGE

CONCERNING THE
TECHNOLOGY, EDUCATION AND COPYRIGHT
HARMONIZATION ACT OF 2001

ON BEHALF OF
ASSOCIATION OF AMERICAN UNIVERSITIES
AMERICAN COUNCIL ON EDUCATION
NATIONAL ASSOCIATION OF STATE UNIVERSITIES AND LAND-GRANT COLLEGES
AMERICAN ASSOCIATION OF COMMUNITY COLLEGES
AMERICAN LIBRARY ASSOCIATION
ASSOCIATION OF RESEARCH LIBRARIES
CONSORTIUM FOR SCHOOL NETWORKING
EDUCAUSE
INTERNATIONAL SOCIETY FOR TECHNOLOGY IN EDUCATION
NATIONAL SCHOOL BOARDS ASSOCIATION
UNIVERSITY CONTINUING EDUCATION ASSOCIATION

MARCH 13, 2001
WASHINGTON, DC

Let me give just one example of how current law impedes the development of digital distance education. At a major university, the highly ranked cinema program recently tried to develop a distance education film course. The institution was committed to invest $600,000 in the effort. Part of the course involved the use of film clips ranging from 5 to 30 seconds. Negotiations for rights went on interminably. Permissions had to be gotten from, and payments had to be made to, copyright owners and actors. Some people never responded, others demand a great deal of money, some simply said no. In the end, after losing a substantial amount of money, the failure to secure the rights to film clips less than a minute long shut down a promising program.

This example illustrates two stark realities confronting digital distance education. First, it is very expensive. The university above was prepared to invest $600,000 in a single program; how many institutions can contemplate such an investment? Elementary and secondary schools, colleges and universities will have to find substantial new resources to invest in the computers, networks, and applications necessary to support digital educational activities, as well as in faculty development, teacher training, and the development of courseware and other course materials. Although digital distance education may in the future produce genuine economies, in the short run the start-up and delivery costs are very expensive, so that all institutions are limited by cost in what they can do, and some institutions are simply kept out of significant digital education activities because of its steep costs.

The second reality confronted by digital distance education is that, even if we find the resources to build the necessary infrastructure, digital education will be threatened with second-class status unless and until local and remote educational content are brought into closer accord. The inescapable fact is that for digital distance education to achieve its full potential, instructors must be able to conduct remotely all educational activities permitted in a physical classroom. Yet consider the university's effort to establish a distance education film course. This ultimately abandoned effort highlights four key points: (1) the copyright barriers are real, (2) no aspect of the proposed program would have possibly threatened anyone's market, (3) yet an opportunity to expand a first-class educational program beyond its residential boundaries was lost, and (4) if legislation such as that which we are considering today had been in place, a new distance education film course would be reaching new students.

References:

Tallman, John (2000). Who owns knowledge in a networked world? In Donald E. Hanna (Ed.), Higher education in a era of digital competition: choices and challenges. (pp. 185-213). Wisconson: Atwood.