1. 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, Afternoon Session
Tennessee Board of Regents
Regents' On-Line Degree Program, Copyright Issues

2. 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

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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

17. 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

18. 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

19. 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

20. 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

21. 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

22. 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

23. 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

24. 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

25. 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

26. 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

27. 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

28. 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

29. 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

30. 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.
Tennessee Board of Regents
Regents' On-Line Degree Program, Copyright Issues

31. 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,
Electronic Course Content Center
Payment through normal Institution procurement procedures
Tennessee Board of Regents
Regents' On-Line Degree Program, Copyright Issues

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

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