Course Management

Copyright in Distance Education

1. Copyright. Copyright is a right of intellectual property, whereby authors obtain, for a limited time, certain exclusive rights to their works. Copyright protects only an author's original expression. It does not extend to any ideas, system or factual information that is conveyed in a copyrighted work, and it does not extend to any pre-existing material that the author has incorporated into a work. 17 U.S.C. 102(b), 103.
   
   In the United States, these seven rights are recognized:
   1. Reproductive right: the right to reproduce the work in copies;
   2. Adaptative right: the right to produce derivative works based on the copyrighted work;
   3. Distribution right: the right to distribute copies of the work;
   4. the performance right: the right to perform the copyrighted work publicly;
   5. the display right: the right to display the copyrighted work publicly;
   6. the attribution right (sometimes called the paternity right): the right of the author to claim authorship of the work and to prevent the use of his or her name as the author of a work he or she did not create; and
   7. the integrity right: the right of an author to prevent the use of his or her name as the author of a distorted version of the work, to prevent intentional distortion of the work, and to prevent destruction of the work.
   
   
2. Public Domain. In contrast to copyrighted work is "public domain." A work in the public domain is one that can be freely used by anyone for any purpose.
   
   There are a number of ways that a work exists as public domain:
   1. The copyright may have expired (see section 2.4).
   2. The work might be a work of the U.S. Government; such works can't be copyrighted (see section 3.6).
   3. The work might be one that can't be copyrighted. For example, titles, names, short phrases and slogans can't be copyrighted (37 C.F.R. 202.1(a)). Note however they can be trademarks. As far as copyright law is concerned, they're public domain, but as far as trademark law is concerned, they might be protected.
   4. The copyright might have been forfeited. For example, the work may have been published without notice prior to the change in the law that eliminated the notice requirement (March 1, 1988, the effective date of the Berne Convention Implementation Act, PL 100-568, 102 Stat. 2853).
   5. The copyright might have been abandoned. This is pretty rare. Abandonment requires that the copyright holder intend to abandon the copyright, and generally requires an unambiguous statement or overt act on the part of the copyright holder that indicates his or her intent to dedicate the work to the public domain. National Comics Pub. v. Fawcett Pub., 191 F.2d 594, 598 (2d Cir., 1951). A statement that anyone who wishes to may reproduce, perform, or display the work without restrictions might be sufficient. Simply posting it on a computer network is not abandonment.
   
   
3. Fair use. In any analysis of copyright, it's important to remember the constitutional purpose fo the law: to promote science and the useful arts. "Fair use" is a doctrine that permits courts to avoid rigid application of the copyright statute when to do otherwise would stifle the very creativity that copyright law is designed to foster. The doctrine of fair use recognizes that the exclusive rights inherent in a copyright are not absolute, and that non-holders of the copyright are entitled to make use of a copyrighted work that technically would otherwise infringe upon one or more of the exclusive rights. Although fair use originated "for purposes such as criticism, comment, news reporting, teaching, ... scholarship, or research," it also applies in other areas, as some of the examples below illustrate. However, courts seem more willing to accept an assertion of fair use when the use falls into one of the above categories.
   
   There are four factors used to decide whether a particular use of a copyrighted work is a fair use:
   1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
   2. the nature of the copyrighted work;
   3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
   4. the effect of the use upon the potential market for - or value of - the copyrighted work.
   
   
4. TEACH (Technology, Education, and Copyright Harmonization) Act.
   
   In 1998, Congress directed the Copyright Office to prepare a report recommending what should be done to facilitate the use of digital technologies in distance education. The Copyright Office prepared its report and recommended significant changes. In November 2002, the performance and display exemptions were revised and updated to address the digital environment. The revised provisions facilitate digital educational use of materials without requiring copyright permission, subject to several conditions.
   
   The TEACH Act expands the scope of educators' rights to perform and display works and to make the copies integral to such performances and displays for digital distance education, making the rights closer to those in face-to-face teaching.
   
   The conditions are outlined at the Teach Act Toolkit website.
   
   

DCE also maintains a list of materials in the public domain for the use in course production.