Copyright Issues for Course Management Systems © Washtenaw Community College

Fair Use As more face-to-face, blended & online courses depend on course management systems, such as Blackboard, awareness of copyright issues in the online environment becomes more important. Fair Use (Section 107 of 1976 Copyright Act) is the first principle for use of copyrighted materials by college instructors when permission to use the materials has not been obtained. Fair Use o Factor One: Purpose & character of use Use of copyrighted material permissible for research, scholarship, teaching, criticism, comment, parody & transformative uses. 2

o Factor Two: Nature of the work used. Fair use tends to apply more to factual works than to creative works. o Factor Three: Amount & substantiality of the work used. Using a small amount of the work--so long as it does not constitute the heart of the work--tends toward fair use more than using a large amount. o Factor Four: Effect of use on the market. To what extent does one’s use of the copyrighted work impact the market for the creator? 3

Technology, Education & Copyright Harmonization Act (TEACH) The TEACH Act of 2002 amends Sections 110 & 112 of the Copyright Act for the online environment. The Act provides a safe harbor for use of copyrighted material in an online environment when permission of the copyright holder has not been obtained. Consider the following TEACH Act provisions when deciding whether one’s use of copyrighted material on Blackboard will be protected: 4

Material is lawfully acquired. The copyrighted work is a legally acquired copy in the first place, as opposed to, e.g., a pirated copy. Material is part of systematic mediated instructional activities & integral to the course. Use of the copyrighted work is integrated into an instructor-mediated course serving educational purposes. (Note that not all non-profit uses are educational uses, e.g., showing a feature film by a student club.) 5

Copyright notice & warning are present. Using copyrighted material on Blackboard requires a copyright notice, which serves as a warning for students against illegal downstream reproduction & distribution: Notice: This work is protected by copyright. The copyright law of the United States (Title 17, U.S. Code) governs the making of photocopies or other reproductions of copyrighted material. The person who engages in further reproduction and distribution in violation of U.S. copyright law may be liable for copyright infringement. 6

Material is not a substitute for textbooks or coursepacks typically purchased by students. Material used may not also serve as a substitute of copyrighted electronic textbooks or consumables such as worksheets. Material is: o Non-dramatic literary work (may use all) If the literary material used is non-dramatic in nature-- without plots--one may use the entire work, e.g., poetry. o Non-dramatic musical work (may use all) If the musical material used is non-dramatic in nature-- without plots--one may use the entire work, e.g., songs, not musicals or operas. 7

o Reasonable and limited portion of any other work (e.g., dramatic work) for performance. If the material is dramatic in nature, one may use reasonable and limited portions, e.g., novels, plays, musicals, operas, etc. o Display of any work in an amount analogous to live classroom setting. Similar to Fair Use, Factor Three: Amount & substantiality of the work used. See slide 3. Material is limited to students enrolled in the course and only for the duration of the course. That students need to log in to access the Blackboard course site and that the course is made unavailable at the end of the course help meet this requirement. 8

Reasonable downstream controls are in place to prevent retention and distribution of material beyond class. In general, when one uses copyrighted material, one should use links or thumbnails rather than downloading the entire works. ITS also helps secure the Blackboard server and its contents in this regard. Material is stored on a secure server and transmitted only as permitted by law. ITS is in charge of making the Blackboard server secure behind a firewall and password-protected. 9

For conversion of analog material to digital, consider the following: o Digital version is not available for purchase or licensing in the marketplace. o Digital version is protected against further unauthorized reproduction and distribution. o Digital version is only retained for authorized use under TEACH Act. o Only reasonable and limited portions are used. o Fair Use factors apply. 10

U.S. Copyright Office’s 2010 Rulemaking on Circumvention of Technological Controls o Motion pictures on DVD: Circumvention of access controls permissible in order to incorporate short portions into new works for the purpose of :  Criticism or comment  Educational use by college & university professors  Educational use by college & university film & media studies students  Documentary filmmaking  Non-commercial videos 11

Recent Court Cases : o UCLA sued by the Association for Information Media & Ambrose Video Publishing for digitizing and streaming the university’s DVD library. o Georgia State University sued by Cambridge University Press, Oxford University Press, and Sage Publications for violating their copyrights on the university’s ERes and uLearn systems. o Supreme Court will hear a case that will determine if Congress has the right to restore copyright protection to foreign works that have fallen into the public domain in the U.S. while still copyrighted abroad. 12

Scenarios : 1.An instructor in our department would like to stream several sci-fi films in their entirety for limited amounts of time on a password-protected Blackboard course site for her class. Permissible, if the instructor teaching in the subject matter of sci-fi films streams the digital files legally owned or licensed by the library. 2. A student club wants to stream the entire documentary “Food, Inc.” to interested members of the club and the public on its website. Not permissible. Although this is non-profit use, it is not educational use of the copyrighted material. 13

Scenarios : 3.An instructor would like to digitize his personal, lawfully acquired DVD and stream it to his class on the Blackboard course site. Not permissible. The conversion of formats requires that certain conditions be met. See slide An instructor recorded a TV episode of The Bold & the Beautiful on DVD and put it on library reserves for his online class on popular culture. Permissible. DVD can be performed for 10 days after recording, and kept for another 35 days for the instructor’s review. Not repeatable in subsequent semesters. 14

Scenarios : 5.A department purchased a collection of b&w photographs of the civil rights movement of the 1960’s, and an instructor would like to digitize some of these pictures for her Blackboard course site. Questionable. The department may obtain digitization permission from the publisher. Absent that, the conversion of formats requires that certain conditions be met. See slide A Math instructor uses a textbook for his online class. He owns a lawfully acquired copy, and so do his students. He would like to digitize some worksheets from that textbook for his Blackboard course site. Not permissible. Worksheets are considered consumables and do not fall under TEACH Act provisions. See slide 7. 15

Scenarios : 7.The library has a current subscription to an e-journal database. An instructor would like to post a full-text article from the database on her Blackboard course site. Permissible. The library has licensed the database for educational uses. 8. The library provides access to 90,000 e-books. An instructor wants to require one as supplemental reading by providing a link on his Blackboard course site for his students. Permissible. The library has licensed the e-books for educational uses. 16

Scenarios : 9.An instructor owns a lawfully acquired VHS tape with an accompanying audiocassette tape. As these formats are old, she would like to digitize them for instructional use. Not permissible. VHS is not yet considered an obsolete format. The conversion of formats requires that certain conditions be met. See slide An instructor owns a book published in She would like to digitize it for her Blackboard course site. Permissible. Material published before 1923 is in the public domain. 17

For further information on copyright rules & the TEACH Act : o o o