Copyright Issues associated with the Regents’ On-Line Degree Program Training for TBR faculty and administrators Presented by the Office of Academic Affairs And the Office of General Counsel February 19, 2001 --- Afternoon Session Tennessee Board of Regents Regents' On-Line Degree Program, Copyright Issues

Regents' On-Line Degree Program, Copyright Issues Today’s Schedule 10 am to 12 noon: Session 1: Copyright Ownership 12 noon to 1 pm: Lunch in the Genesco Cafeteria 1 pm to 2 pm: Session 2: Copyright Issues in Digital Distance Education Tennessee Board of Regents Regents' On-Line Degree Program, Copyright Issues

Regents' On-Line Degree Program, Copyright Issues Today’s Objectives: Session 2: Copyright Issues in Digital Distance education Copyright basics Exempted uses in the classroom Exempted uses in the digital context Fair use analysis I’ve got a question…who do I call? Obtaining permission Group questions and answers Tennessee Board of Regents Regents' On-Line Degree Program, Copyright Issues

Regents' On-Line Degree Program, Copyright Issues Copyright Basics Creation of copyright Original expression Mere “modicum” of originality Fixed in a tangible medium Protection adheres on creation Notice not required, but desirable (identifies owner, negates innocent infringement defense) Tennessee Board of Regents Regents' On-Line Degree Program, Copyright Issues

Regents' On-Line Degree Program, Copyright Issues Copyright Basics Creation of copyright (continued) Protection lasts for life of the author + 70 years (individual author) Or lesser of 95 years from publication or 120 years from creation, corporate authors Registration with Copyright Office not required, but desirable (prerequisite to infringement suit, necessary for statutory damages, public record). Tennessee Board of Regents Regents' On-Line Degree Program, Copyright Issues

Regents' On-Line Degree Program, Copyright Issues Copyright Basics Rights granted to copyright owners: Right to reproduce the work; Right to prepare derivative works; Right to distribute copies by sale; Right to publicly perform the work; Right to publicly display the work. Tennessee Board of Regents Regents' On-Line Degree Program, Copyright Issues

Regents' On-Line Degree Program, Copyright Issues Copyright Basics Works which cannot be copyrighted: Works lacking “originality” (but a very low threshold) Works in the public domain Works which the owner has expressly made available to the public Federal government works Tennessee Board of Regents Regents' On-Line Degree Program, Copyright Issues

Regents' On-Line Degree Program, Copyright Issues Copyright Basics Works which cannot be copyrighted (continued): Facts The ideas, methods, processes, etc. underlying the work Tennessee Board of Regents Regents' On-Line Degree Program, Copyright Issues

Regents' On-Line Degree Program, Copyright Issues Copyright Basics Penalties for infringement: Injunctive relief Impoundment of infringing materials Actual damages and lost profits, or Statutory damages: $750 to $30,000 per work infringed, or Up to $150,000 per work, if the infringement is willful Tennessee Board of Regents Regents' On-Line Degree Program, Copyright Issues

Regents' On-Line Degree Program, Copyright Issues State Immunity 11th Amendment says States cannot be sued in Federal Court. Supreme Court created two exceptions: 1) State consents to suit or 2) if Congress authorizes the suit. Federal copyright law authorizes suits in Federal Court against State agencies and State employees for copyright infringement. Tennessee Board of Regents Regents' On-Line Degree Program, Copyright Issues

Regents' On-Line Degree Program, Copyright Issues State Immunity In 1996, the Supreme Court held that Congress could not legislatively authorize suits in Federal Court against the States. In 1998, two lower Federal Courts held that the 1996 decision prevented copyright infringement suits against state agencies in Texas. Tennessee Board of Regents Regents' On-Line Degree Program, Copyright Issues

Regents' On-Line Degree Program, Copyright Issues State Immunity In 1999, the Supreme Court held that a state agency could not be sued in Federal Court for patent infringement. So, why worry? Law is not settled. Suit based on another theory in State Court. Ethical considerations. And State immunity is not an issue if Author owns the copyright. Tennessee Board of Regents Regents' On-Line Degree Program, Copyright Issues

Exempted Uses: §§110(1), 110(2) and 107 Title 17, Chapter 1, Section 110(1) of the U.S. Code Performance or display of a work; In the course of face-to-face teaching; In a classroom; Using a lawful copy (audiovisual works). Tennessee Board of Regents Regents' On-Line Degree Program, Copyright Issues

Exempted Uses: §§110(1), 110(2) and 107 Section 110(2) Performance of a non-dramatic literary or musical work, or display of a work; By a transmission; To be received in a classroom. Tennessee Board of Regents Regents' On-Line Degree Program, Copyright Issues

Exempted Uses: §§110(1), 110(2) and 107 Section 107 “Fair Use” evaluated on the basis of a four factor test: Purpose and character of the use Nature of the copyrighted work Amount and substantiality of the portion used Effect of the use upon the work’s potential market Details of the four factor analysis to be discussed. Tennessee Board of Regents Regents' On-Line Degree Program, Copyright Issues

Exempted Uses in the Digital Context Section 110(1) “Face-to-face” teaching in the classroom. Exemption not pertinent to digital distance education. Tennessee Board of Regents Regents' On-Line Degree Program, Copyright Issues

Exempted Uses in the Digital Context Section 110(2) “Transmissions”, but in 1976, they were thinking about TV. Only a couple of categories To be received in a classroom Not of general applicability in the context of distance digital education Tennessee Board of Regents Regents' On-Line Degree Program, Copyright Issues

Exempted Uses in the Digital Context Section 107 Fair use is technology neutral. The most important exemption in the digital context Two approaches: Guidelines Fair Use Analysis Tennessee Board of Regents Regents' On-Line Degree Program, Copyright Issues

Regents' On-Line Degree Program, Copyright Issues Fair Use Guidelines US Copyright Office, Circular 21, “Reproduction of Copyrighted Works by Educators and Librarians” Books & Periodicals Music Attachment 1 Other guidelines Conference on Fair Use (CONFU) Proposal for Fair Use Guidelines for Distance Learning Tennessee Board of Regents Regents' On-Line Degree Program, Copyright Issues

Regents' On-Line Degree Program, Copyright Issues Fair Use Analysis Qualitative analysis Factor 1: Purpose and character of the use Uses favoring a finding of fair use Nonprofit Educational Research Personal Criticism Tennessee Board of Regents Regents' On-Line Degree Program, Copyright Issues

Regents' On-Line Degree Program, Copyright Issues Fair Use Analysis Factor 1: Purpose and character of the use Uses favoring a finding of fair use Commentary Reporting of news “Transformative” = modification of the work Restricted access Parody Tennessee Board of Regents Regents' On-Line Degree Program, Copyright Issues

Regents' On-Line Degree Program, Copyright Issues Fair Use Analysis Factor 1: Purpose and character of the use Uses opposing a finding of fair use Commercial Profits Entertainment Bad faith Tennessee Board of Regents Regents' On-Line Degree Program, Copyright Issues

Regents' On-Line Degree Program, Copyright Issues Fair Use Analysis Factor 2: Nature of the copyrighted work Characteristics favoring a finding of fair use Published work Factual work Nonfiction work Important to educational purpose Tennessee Board of Regents Regents' On-Line Degree Program, Copyright Issues

Regents' On-Line Degree Program, Copyright Issues Fair Use Analysis Factor 2: Nature of the copyrighted work Characteristics opposing a finding of fair use Unpublished work Fanciful (highly creative) work Fictional work Tennessee Board of Regents Regents' On-Line Degree Program, Copyright Issues

Regents' On-Line Degree Program, Copyright Issues Fair Use Analysis Factor 3: Amount and substantiality of the portion used Characteristics favoring a finding of fair use Small quantity Portion used not “central” to the work Tennessee Board of Regents Regents' On-Line Degree Program, Copyright Issues

Regents' On-Line Degree Program, Copyright Issues Fair Use Analysis Factor 3: Amount and substantiality of the portion used Characteristics opposing a finding of fair use Large portion or entire work used Portion used “central” to the work Tennessee Board of Regents Regents' On-Line Degree Program, Copyright Issues

Regents' On-Line Degree Program, Copyright Issues Fair Use Analysis Factor 4: Effect on the potential market for the work Characteristics favoring a finding of fair use One or few copies made Use unlikely to replace owner’s sales Dysfunctional licensing market Tennessee Board of Regents Regents' On-Line Degree Program, Copyright Issues

Regents' On-Line Degree Program, Copyright Issues Fair Use Analysis Factor 4: Effect on the potential market for the work Characteristics opposing a finding of fair use Use could replace potential sale Numerous copies made Repeated or long term use Functioning licensing market Tennessee Board of Regents Regents' On-Line Degree Program, Copyright Issues

An alternative to fair use If the information you desire to incorporate is available on the Internet, then you can incorporate a link to the pertinent site, and eliminate any concern about copyright infringement. Tennessee Board of Regents Regents' On-Line Degree Program, Copyright Issues

If you need a second opinion… If you want to use a copyrighted work… And if you’re still not confident whether the use would be a “Fair Use”…… You can contact the TBR Office of General Counsel for an opinion. kgoodwin@tbr.state.tn.us Tennessee Board of Regents Regents' On-Line Degree Program, Copyright Issues

Regents' On-Line Degree Program, Copyright Issues Getting permission Licenses can be troublesome to obtain Finding the copyright owner Lack of response Cost (to be borne by the copyright owner) Copyright Clearance Center, www.copyright.com Electronic Course Content Center Payment through normal Institution procurement procedures Tennessee Board of Regents Regents' On-Line Degree Program, Copyright Issues

Regents' On-Line Degree Program, Copyright Issues Getting permission “Getting Permission” on the University of Texas Office of General Counsel website, www.utsystem.edu/ogc/intellectualproperty/permission.htm Sample Permission Request Letter Attachment 2 Tennessee Board of Regents Regents' On-Line Degree Program, Copyright Issues

Regents' On-Line Degree Program, Copyright Issues Group Questions and Answers Tennessee Board of Regents Regents' On-Line Degree Program, Copyright Issues