1. R AM CT: C OPYRIGHT AND F AIR U SE IN O N -L INE I NSTRUCTION Linda Schutjer Senior Associate Legal Counsel Colorado State University System

2. W HAT IS C OPYRIGHT ? Copyright is a form of protection provided by the laws of the United States to authors of original works of authorship. It is available for both published and unpublished works. It generally gives the owner of the copyright exclusive rights to the work for a period of time before the work goes into the public domain.

3. W HAT D OES C OPYRIGHT P ROTECT ? Original Works of Authorship – A Persons Unique Way of Saying Something Fixed in a Tangible Medium – Does not have to be directly perceptible as long as it can be communicated with the aid of a machine or device

4. C OPYRIGHT E XEMPTIONS §107 - Fair Use Doctrine §109 - First Sale Doctrine §110 – Education Exemptions 110(1) – Classroom or face-to-face teaching 110(2) – TEACH – distance education

5. F OUR F ACTOR F AIR U SE T EST Purpose and character of the use Nature of the copyrighted work Amount and importance of part used Effect on the potential market for or value of the copyrighted work

6. W HAT I S T HE P URPOSE O F T HE P ROPOSED U SE ? Not for Profit Teaching Research/Scholarship Criticism Commentary/ Reporting Parody Transformative Restricted Access For Profit Commercial Entertainment Lack of Attribution Bad Faith Behavior Favors Fair Use:Does Not Favor Fair Use:

7. W HAT I S T HE N ATURE O F T HE W ORK T O B E U SED ? Factual Published Not Copyrightable: Listings of ingredients/contents, directions Ideas, concepts, methods, processes Works authored by the US Government Creative Entertainment Consumable Materials (workbooks, answer sheets) Favors Fair Use:Does Not Favor Fair Use:

8. H OW M UCH O F T HE C OPYRIGHTED W ORK W ILL B E U SED ? Small amount Only as much as necessary for the educational purpose Only used for a limited period of time Large portion or entire work Most important or significant portion – the heart of the work Used year after year Favors Fair Use:Does Not Favor Fair Use:

9. W HAT I S T HE E FFECT O N T HE M ARKET O R P OTENTIAL M ARKET F OR T HE W ORK ? User owns lawfully acquired copy No significant effect on market Copyright holder not able to be identified or located Item out of print or otherwise not available for purchase Replaces sale of copyrighted work Numerous copies made Use makes copy publically available on the internet Copyright permission readily available Favors Fair Use:Does Not Favor Fair Use:

10. F IRST S ALE D OCTRINE Section 109 allows for the sale of a copyrighted work without transferring the underlying copyright. Once you have bought a physical copy of a copyrighted work, you can re-sell that work without it constituting a violation of the authors copyright. In most cases you can even make new works that incorporate the physical work you bought without violating the authors copyright – e.g. incorporate physical books into a piece of sculpture.

11. C LASSROOM T EACHING E XCEPTION Instructors and students at a non-profit educational institution may use, display, and/or perform in a classroom environment any copyright-protected material or work PROVIDED THAT: The work used was legally obtained The intended use of the work is strictly educational Distribution is in a location designed primarily for educational purposes Teaching and learning occur simultaneously (e.g. not a recording) See TILT Guide: Copyright Essentials for EducatorsCopyright Essentials for Educators

12. TEACH A CT Technology, Education and Copyright Harmonization Act of 2002 Total revision of distance education exemption Attempts to equalize distance education and classroom teaching

13. TEACH A CT §110(2) – Distance education – digital transmissions of displays of works via digital networks, including still images, in amounts comparable to typical face to face teaching which transmissions are made to students officially enrolled in the class no matter where the students are located

14. TEACH A CT ( CONT.) Performances of the following are allowed to be transmitted: An entire non-dramatic literary or musical work Readings from novels, poetry and textbooks Pop music, symphonies Reasonable and limited portions of other works Dramatic works Audiovisuals

15. R EASONABLE AND LIMITED ? Although what constitutes a reasonable and limited portion of a work is not defined in the statute, the legislative history of the Act suggests that determining what amount is permissible should take into account the nature of the market for that type of work and the instructional purposes of the performance. For example, the exhibition of an entire film may possibly constitute a reasonable and limited demonstration if the films entire viewing is exceedingly relevant toward achieving an educational goal; however, the likelihood of an entire film portrayal being reasonable and limited may be rare. Congressional Research Service Report http://assets.opencrs.com/rpts/RL33516_20060706.pdf

16. TEACH A CT R EQUIREMENTS Institution Technology Instructor Materials

17. I NSTITUTION R EQUIREMENTS Accredited nonprofit educational institution Institute copyright policies Provide informational materials to faculty, staff and students on compliance with copyright laws Provide notice to students that course materials may be subject to copyright protection

18. T ECHNOLOGY R EQUIREMENTS Transmission of content limited to students officially enrolled in the course Content cannot be retained longer than class session, which is not defined Institution should take technological measures to restrict use of content in violation of law Cannot interfere with technology control measures No material can remain on the system longer than necessary to facilitate transmission May retain copies of transmissions provided only used such materials in compliance with law (i.e. TEACH act)

19. I NSTRUCTOR R EQUIREMENTS Performance or display of materials must be made by, at the direction of, or under actual supervision of an instructor The instructor must use the materials as an integral part of a class session which is offered as a regular part of systematic, mediated instructional activities The materials used by the instructor must be directly related to teaching content – not for entertainment Instructor must use lawfully made and acquired copy

20. M ATERIAL R EQUIREMENTS Digital Educational Work -- Textbooks or other material in any media which are typically purchased by students for use in one or more class sessions may not be used pursuant to the TEACH Act provisions Analog works cannot be converted into digital unless: No digital version is available or A digital version exists but cannot be accessed because it is secured by a technological protection measure that prevents access Amount converted is limited to the amount that is otherwise permitted to be used under the TEACH Act Always include copyright notices/attributions on materials

21. L INKS : Links – You can generally link to materials in your courses. Of course, review the website terms and conditions before you do to make sure you comply with any special requirements they have. You should provide the hyperlink so that it is clear that it is a link to materials outside of the class, as framing can be a problem. Generally, you wont be liable for any infringement represented in the materials you link to – unless you are aware of the infringement and link anyway. That is another reason to link via the web link rather than drawing the materials into your actual course. http://www.bitlaw.com/internet/linking.html

22. I NSTRUCTOR / S TUDENT C REATED M ATERIALS : Author is the owner under CSU policy so if you are not the Author, you will need to treat works by students or other faculty or staff just as if it was third party materials If you do create your own materials, if they include third party images or audio, you will need to consider whether Fair Use or the TEACH Act support your use or whether you need to get permission from the copyright owner

23. A UDIO /V IDEO : Audio – Two Clearances Required: Musical Composition -- notes, lyrics and melodies Copyright(s) usually owned by the music publisher Sound Recording – captured performance Copyright usually owned by the recording company Video – One Clearance – unless audio is included or other copyrighted works shown or used Sampling is not legal Your use must be with permission or within an exception such as fair use, classroom use or the TEACH Act

25. HTTP :// CCS. COLOSTATE. EDU

26. C OPYRIGHT R ESOURCES : US Copyright Office: http://www.copyright.gov/ Two Good Sources for Broad Range of Information: http://www.utsystem.edu/ogc/intellectualproperty/ cprtindx.htm http://www.utsystem.edu/ogc/intellectualproperty/ cprtindx.htm http://www.lib.unc.edu/copyright/ Public Domain/Copyright term chart: http://copyright.cornell.edu/resources/publicdom ain.cfm http://copyright.cornell.edu/resources/publicdom ain.cfm