copyright issues

Copyright Issues Relating to On-Line Courses

Melanie Hill, State University of West Georgia, 1997

Introduction
Before examining copyright as it applies to the internet, it is important to understand copyright law in general. Copyright law governs materials posted to the Internet, just as it applies to books, videotapes, and materials produced through other media. Many people wrongly assume that anything posted to the Internet is public domain, because copyright law used to apply only to works that displayed a copyright notice. Current law, however, dictates that any expression on a tangible medium, including computer media, becomes copyrighted even without a copyright notice. (Harper 1997)
The Copyright Law of 1976 (17 USC section 106) gave the copyright holder exclusive rights to reproduce the copyrighted work, to prepare derivative works, to distribute copies by sale, rent, lease of gift, to perform the work, or to display the work publicly. The law also created the concept of "fair use," in which copyrighted materials may be used in specific situations without the permission of the copyright holder (17 USC section 107). Fair use is determined by four factors:
- the purpose and character of the use (should be nonprofit, educational or personal; not commercial);
- the nature or value of the copyrighted work (should be factual);
- the amount portion of the copyrighted material used (must be an excerpt and not a critical portion);
- the effect of the use upon the marketability of the copyrighted work. (Graf 1997)
Publishers and educators have agreed to more specific guidelines that give educators an operating framework. Although these guidelines are not law, they are widely recognized and generally accepted. These guidelines define the length of works that may be copied (complete article or story less than 2500 words, one graphic per book, one article or two excerpts per author per course); specify that the original copyright notice must be included; and specify that copies may not be made to avoid purchasing a text. (Touchstone and Anderson 1996)
However, because these laws were created long before the widespread use of the Internet, and other technologies, their applicability to these situations is ill-defined and unclear. Furthermore, there is very little case law as of yet to provide any clarity. Because of the very nature and purpose of the Internet, an author may expect that works posted to the Internet will be downloaded, printed out, and perhaps forwarded to others. Many believe that the Internet provides for an implied license in this area, but still maintain that this would not pertain to a commercial use without permission. (Harper 1997)

Using Materials Found on the Internet
One of the greatest strengths of the web is that it makes a tremendous amount of information, written materials, graphics, and pictures readily available. It is also very easy to directly copy these materials and place them into one's own web site. Thus, if one is creating a web page about Hawaii, one can simply find a picture on the web and copy it, rather than going to the trouble of trying to get their own picture. Likewise, there are so many articles on so many subjects available that it is often much easier to use them than to recreate similar information in another form. While it seems to be common practice for many people to use graphics and photos of other pages when creating their own personal pages, a university may put itself at risk when it allows course developers to follow this practice when creating web pages for classes.
Many people argue that simply putting something on the web and making it available to the public creates an implied license. And finding out who the original creator of a graphic or photo can be quite difficult, particularly if the work is being copied from a page in which the creator copied it from another page. Again, the absence of a copyright does not mean that it's okay to copy. But for purposes of education under fair use, wouldn't it be okay to use a photo of Hawaii since actually going there to take the picture would be so impractical? Since there is no case law as of yet, the answer is not clear. And thus far, net photographers have appeared to be quite lenient in allowing non-commercial uses of photos. (Brocke) However, to make this decision, one would need to begin by asking the four fair use questions. One very important factor that could make a determining difference is whether or not the course is password-protected to limit access only to those enrolled in the course. If so, then it would fit as classroom use rather than public display. (Oppedahl 1997) Guidelines from the University of Tennessee recommend that instructors never use images that are for sale, and to terminate access at the end of the course.
In the case of using articles and other informational matter on the web, the simplest and perhaps safest approach seems to be to link to the information rather than copying it. This is a very simple step, and one that takes advantage of the intended purpose of the web. (Oppedahl 1997)

Linking to Other Sites
Linking allows users to click on a title and instantly access another page. Links may be used quite effectively in a web course to allow students to jump to materials or articles related to the subject matter. It is exactly this capability to link to sites and ideas from all over the country and the world that makes the Internet such a valuable tool for on-line learning. For example an on-line course in political science could include links imbedded in the on-line course materials that would allow a student to instantly access the White House web site, various government web sites, and articles written and posted by others on related subjects. Is a professor at UWG liable for copyright violation when he or she links to an article written by a professor at UCLA without the author's permission? Although there are no clear answers, most present interpretations contend that it is okay to link under most circumstances (under fair use).
Many argue that a URL (or web address) is just like a phone number or a street address and is thus not protected by copyright law. (Oppedahl 1997) However, creating a link in such a manner that it appears that the material linked was created by the linking page may be in violation. In a pending case, Washington Post Co. v. Total News., Total News linked its pages to current news pages of The Washington Post without consent. The news content was surrounded by paid advertising, in which revenues went to Total News. Though the case has yet to be decided, the Post's claims are based on that Total News received revenue while providing "little or no content of their own." Although in this case, Total News would not fall under fair use, the case merits consideration by course developers. As colleges and universities become increasingly competitive for students in the world market, there could feasibly be an argument that linking to materials created by an instructor of another institution has the effect of diminishing the marketability of the original course materials. Furthermore, it is important in certain circumstances to clearly establish the originator of the on-line materials, so that it does not appear that linked materials were created by or express the views of the university. And what about the possible liability for linking to other pages that may be themselves in violation of copyright? Is this contributory infringement? Again, there are no clear answers as of yet.
The best way to handle linking is probably to proceed with caution. A course developer should include with the link enough information to make it clear who the originator of the material is. While the intention of the web is to create a fully cross-linked access to a portion of human knowledge so that one may "click" from link to link until he or she finds the sought-after information, there are relatively easy ways to enable the web surfer to identify the true source. Instead of naming a link, "Examples of Copyright Infringement," one should perhaps name it "Examples of Copyright Infringement from the University of Alabama." (Oppedahl 1997)

Posting Other Materials to a Web Course
Of course, one can place their original materials on the web. While this seems simple, there are some cases in which one's perceived original materials may actually need copyright clearance. For example, if an instructor takes a digital photograph of several students working in a chemistry lab, he or she should obtain permission to use their likeness, just as would be required in a publication. Another assumption that gets some people into trouble is believing that they can use any materials, such as a newsletter, that they have previously published in printed form, on a web page. But if someone else has contributed articles to the newsletter, then their permission should be obtained to re-publish the materials. (English 1997)
Any other materials created by someone else, such as articles, graphics, or photos are subject to the same copyright laws that they are otherwise. But again, there will be some difference in using portions of materials under fair use depending upon the accessibility of the course. If it is accessible to anyone, then it may not fall under fair use. A password-protected course will be considered like a regular classroom. (Regents Guide)
Course developers must be especially cautious in developing on-line courses because of the temptation to provide all course materials on-line since students are at a distance. If materials are placed on-line to avoid students having to purchase a textbook, then it would not be fair use. In the case of Basic Books, Inc. v. Kinko's Graphics Corp, the courts found in favor of Basic Books, Inc., who purported that Kinko's had infringed on their copyrights when it copied book chapters for students as "coursepacks" for classes. In this case, the courts found that the copying had a direct effect on the marketability of the books, which students would have bought if the coursepacks had not been created. (Crews 1995)

Recent Approaches to Copyright and Internet-Based Distance Learning
The number of colleges and unversities offering courses over the Internet went from 93 to 762 in four years (1993 to 1997). Presently, there are an estimated 1 million students taking courses on the web, and this number grows every day. (Forbes 1997) Creation of these courses requires a tremendous investment of human resources in terms of people to learn the software, train faculty, design graphics, develop policy, and market the courses. In the race to get courses on-line, many universities have not found time to address copyright issues at length. An informal survey of 20 institutions offering distance courses on-line showed that only 3 had any type of formal policy. Many admitted that they were leaving it up to individual faculty or course developers to interpret and adhere to general copyright laws, or had not really thought about the issue at all. Others said that their courses were developed and created by outside consultants who were assumably not breaking the law. (Hill 1997)
One of the most extensive policies found was that of Nova Southeastern University, a distance learning institution in Florida. Nova's policy is clear in that one "may not place any materials owned by others . . without the expressed permission of the copyright owner." The policy allows for short, footnoted quotations, and linking to other materials. The policy also states that photos may not be used without permission of the people in the pictures.
The policy of Washington State University is somewhat more vague, and suggests using copyrighted materials only on a web site only when all four criteria of Fair Use have been met. Their policy also advises limiting access to a web site "to enhance a claim of Fair Use", and to never post another's e-mail to a large group, since electronic mail is also copyrighted. (Internet copyright guidelines 1997)
The Consortium of College of College & University Media Centers (used by the Public Schools of North Carolina) has published a short guide entitled "Copyright in an Electronic Environment." Although it discusses general guidelines and Fair Use, it makes only two references to internet materials, advising educators to write for permission to use web materials "until further clarification."
The State University of New York published "An Introduction to Copyright Issues for WWW Publishers at SUNY," which contends that it is up to the individual web publishers and course developers "to make sure that they have a legitimate right to publish any materials they put online." The article summarizes Fair Use, and suggests that course developers restrict course access to students enrolled in the course. (Hill 1997)
In October, the Georgia Board of Regents published on their web site an extensive "Regents Guide to Understanding Copyright and Educational Fair Use," in an attempt to clarify some of the many questions of educators in Georgia. The guidelines present several scenarios in question-answer format, and makes a big distinction between internet courses that have open access and those that do not. According to the guidelines, it is fair use to transmit a telecourse, make available a searchable database of copyrighted materials, distribute student projects that include positions of copyrighted materials, and place a portion of a book on electronic reserve so long as the course has restricted access. In all of the above cases, the guidelines state that it is probably not fair use if the web distribution is unlimited. (Regents guide 1997)
According to Diane Chubb, the state of Georgia GSAMS coordinator, the Board of Regents guidelines were developed in response a great number of inquiries from university system institutions and evidence of some potential abuses. The guide is intended to provide direction to system faculty and staff, and will be updated on its web site as more questions arise. Initial reaction to the guidelines has been very positive, she said. (Chubb 1997) The guidelines were based on the 1976 copyright act, consitutional principles, and case law, according to Bill Potter, Director of Libraries at the University of Georgia and chair of the committee that developed the guidelines. (Potter 1997)

Proposed Copyright Guidelines for Developing Web Courses at UWG
Using the Board of Regents guidelines, the above interpretations of copyright as it applies to Internet Courses, and the guidelines from other institutions as a model, I have developed the following "copyright tips" for those involved in the development and creation of web courses at the State University of West Georgia.
1. Limit access through password to all on-line courses whenever using materials that are not original or of which you do not have expressed copyright permission. This will enable the course to fall under Fair Use. Terminate access at the end of the quarter or semester.
2. Keep in mind that everything on the Internet is copyrighted whether there is a notification or not. When using something that does not absolutely meet the criteria of Fair Use, obtain expressed permission before using the materials. Give proper credit (through footnotes or other reference) to any copyrighted materials used.
3. E-mail is copyrighted. Although you may forward e-mail, you should not post it to a larger audience without the writer's consent.
4. If you take a picture or make a video to be distributed in a web course, obtain written permission from the people in the photo.
5. Rather than copying another's materials found on the web, try to link to them if possible. But be sure that it is clear to the viewer who the originator of the materials is. Do not lead readers to mistakenly believe that the linkers ahve an affiliation or association with the linkees.
6. There are now hundreds of web sites with copy-free images available. Use these whenever possible rather than taking a chance using a photo or graphic that may be protected.
7. A copyright notice is not required to assert your rights to your original material. However, you may want to include a minimal notice if appropriate. (Ex: Copyright 1997 State University of West Georgia. All Rights Reserved).
8. Read and utilize the copyright policy adopted by the Board of Regents, University System of Georgia.
9. When in doubt, ask for permission or seek legal advice.
The above guidelines would probably protect a course developer under current circumstances. But as the internet continues to expand and cases arise, laws are certain to be reinterpreted and changed to some degree. Although people will always disagree somewhat about the applicability of fair use, we must ultimately turn to the four fair use factors to reach our own conclusions regarding the development of on-line courses, at least until given further notice. The key to copyright is balancing the interests of the copyright owners with the general public interests, and these interests should continue in the electronic era. (Fair use in the electonic age 1995)

References

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Chubb, D. (1997) Personal interview. (21 November 1997)
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