Myths and Perceptions of Copyright in Higher Education

Educators, students, and higher education institutions are involved in copyright law as users and producers. The Internet has created a space where it is easier to create and copy works than in times past. With the innovation of online education, the legalities of copyright law now become everyone’s business and cannot be left entirely to a council of intellectual property professionals. Though the need for them becomes greater as laws become deciphered. The Web has become the new classroom and with that comes the confusing and convoluted law of copyright permissions. There are many myths and misconceptions about copyright within the context of education. Too many believe that everything is Fair Use within the field of education. Five common myths are addressed:

• 1.     If it doesn’t have the copyright symbol, it’s not protected.
• 2.     It’s already on the Web, so it’s in public domain.
• 3.     I only have to give credit to the copyright holder.
• 4.     It’s for education, so it’s fair to use.
• 5.     The TEACH Act covers anything I put online.

            A common misconception among students and teachers is that if there is no copyright symbol or other mark indicating that the material is copyright protected, then it is safe to use. Before 1989, the copyright law required all works to be officially registered with the Copyright Office in the Library of Congress and carry a legal indication, the copyright symbol (Waxer & Baum, 2007).  However, a formal registration with the Copyright Office became unnecessary, as of March 1, 1989, when copyright law was updated to cover any creative work, “where it can be fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” (17 U.S.C. § 102, 2012). This includes creative works you produce on your computer, the back of an envelope or even an email message. Ideas, procedures, methods of operation, processes, concepts, principles or discovery are not covered under copyright law, even when they are described or illustrated in a work (17 U.S.C. § 102, 2012). Verbal communication is not covered.

            The whole copyright matter is further confused because prior to 1989, some copyrighted works may have expired and are now in the public domain, but some may have been re-registered. The easiest way to circumvent this problem is to use works created prior to 1923, which have now entered the public domain as of Jan. 1, 2012 (Waxer & Baum, 2007). Otherwise, the date an item enters the public domain varies based on any of these variables:  the year it became tangible, the year it was formally copyrighted, whether it was renewed, the death of the author, whether the work was the author’s own or for “work for hire,” and within what year this all happened (Waxer & Baum, 2007).  Needless to say, it is easy to understand why educators and students may have difficulty knowing any of this, unless they are within the practice of intellectual property law. Higher education institutions usually have a better grasp on the laws and are in a better financial position to hire experts to oversee their programs.

            However, this does not relieve students and educators from the legal responsibilities. In my survey I found that no one knew the details of copyright law and all believed that if there was no distinguishing sign of copyright, then it was free to use it. They were also confused about whether items already on the web were in the public domain. The combination of no copyright registration symbol and already on the Web leads many to believe it is in the public domain. It may be helpful to have info-graphics or charts that educators can refer to when deciding if a work is in the public domain. There are several options available on the Internet, all with varying degrees of ease of use and understanding. One option that is offered by the author, free of copyright follows:

DATE OF WORK	PROTECTED FROM	TERM
Created 1-1-78 or after	When work is fixed in tangible medium of expression	Life + 70 years1 (or if work of corporate authorship, the shorter of 95 years from publication, or 120 years from creation2
Published before 1923	In public domain	None
Published from 1923 - 63	When published with notice3	28 years + could be renewed for 47 years, now extended by 20 years for a total renewal of 67 years. If not so renewed, now in public domain
Published from 1964 - 77	When published with notice	28 years for first term; now automatic extension of 67 years for second term
Created before 1-1-78 but not published	1-1-78, the effective date of the 1976 Act which eliminated common law copyright	Life + 70 years or 12-31-2002, whichever is greater
Created before 1-1-78 but published between then and 12-31-2002	1-1-78, the effective date of the 1976 Act which eliminated common law copyright	Life + 70 years or 12-31-2047 whichever is greater

1 Term of joint works is measured by life of the longest-lived author.
2 Works for hire, anonymous and pseudonymous works also have this term.  17 U.S.C. § 302(c).
3 Under the 1909 Act, works published without notice went into the public domain upon publication. Works published without notice between 1-1-78 and 3-1-89, effective date of the Berne Convention Implementation Act, retained copyright only if efforts to correct the accidental omission of notice was made within five years, such as by placing notice on unsold copies. 17 U.S.C. § 405 (Gasaway, 2011).

            Another helpful source for checking copyrights is the online Stanford Copyright Renewal Base, where students and faculty can check copyright dates of works published between 1923 and 1964 (Calter, n.d.). Institutions may help prevent intellectual property infringements by providing information on copyright laws in an easy-to-read format. An additional option is to provide educators and students with resources to find materials that are already in the public domain or encourage them to create their own. Several sites offer images that are in the public domain or under the Creative Commons License, such as Wikimedia Commons, Public Domain Sherpa, PublicDomainPictures.net, Public-domain-photos.com, and The Library of Congress.

            A common myth is that you can use copyright materials as long as you credit the owner. Copyright protects the creator from unauthorized copy of his materials, which means you must get the rights first and you may have to pay for those rights. This includes making derivative works (17 U.S.C. § 106, 2012).  Copyright law does two things – encourage the creation of works and empower the author to benefit monetarily for a long period of time; and protect that right (Waxer & Baum, 2007) Currently, copyright lasts the lifetime of the author plus 70 years; if it was a “work for hire,” it is 95 years from the date of publication or 120 years from the date of creation, whichever date expires first (17 U.S.C. § 301, 2012). Included in copyright notice are the “terms of use” but the interpretation of these terms is often difficult unless you are well versed in legal verbiage.  Educators and students may interpret copyright words differently -- words such as “personal,” “educational,” “non-profit,” “corporate,” “free,” and “professional.” (Waxer & Baum, 2007) For example, personal may mean on your personal web page. However, the public will have continual access to this information.

            Educational use is not that easy to decipher, for student or educator; online or in the classroom has become vexing.  Most educators and students believe they have a free ticket of copyright usage because of something called “fair use” for education.  Although there are provisions in the law to allow fair use in education, it does not apply to anything and everything (Stim, 2010). The law provides four guidelines:  (1) The purpose and character -- of which nonprofit educational is favored, though it does not exclude commercial, (2) The type of copyrighted work – fact based rather than imaginative, published rather than unpublished is preferred, (3) The amount and significance of the work – thirty seconds of music, three minutes of video, ten percent of prose, and (4) The potential market value – if this work takes profits away from the owner (Waterhouse & Rogers, 2004).

            Educators and students do not know much about the TEACH Act, a copyright law passed in 2002 defining the usage of copyright works within the constructs of education (Crews, 2002). In my survey of students and teachers, no one was familiar with the law. The TEACH act focuses on E-learning and specifies the terms when accredited, non-profit educational institutions in the U.S. want to use copyrighted materials without permission (Crews, 2002). Distance education was once confined to closed-circuit television, paper and pencil, and the U.S. postal service for the delivery of written materials between higher institutions and students.

Leigh Blackall

With technology constantly advancing distance learning has become online learning. What worked and was allowed in a face-to-face classroom situation is questionable in an online course where materials are easily copied, downloaded and shared (Waterhouse & Rogers, 2004). The TEACH act allows distance education to reach students at any location, which includes a students home or the nearby Starbucks (Crews, 2002).

The TEACH act does not resolve all issues and seems to be structured around the dissemination of materials online but in activities that simulate a classroom setting. This means time constraints for information to be displayed -- they cannot be stored for long periods of time (Crews, 2002).  The law tries to protect copyright holders of educational textbooks and does not permit the scanning and uploading of entire texts that a student would otherwise purchase (Crews, 2002).

            Some educators mistakenly believe that the TEACH act replaces the “fair use” law, and that this newer law allows anything for education (Ashely, 2004). The “fair use” of copyrights has not been altered so much as the TEACH act has added another dimension of protection (Waterhouse & Rogers, 2004). In some cases, online educational institutions may find better protection with “fair use” than the TEACH act. This may be true for higher education institutions that are not classified as non-profit. Fair use favors non-profit, but does not exclude commercial (Christopher, 2004).  TEACH is directed at only non-profit educational institutions. In fact, the non-profit clause of this act excludes institutions that are in the business of educating and should have the same benefits. In my opinion, the non-profit classification is helpful to avoid other legal requirements, such as taxes. Many non-profits are huge corporations or government entities that handle large sums of money to pay for salaries, materials, and expenses, but show no profit.

            In my survey of five teachers I found that none of them had a clear understanding of copyright law. Since all of them taught in a classroom, they had not understanding of the TEACH Act. None of them understood that copyrights are part of any published work once it becomes tangible. They believed that “fair use” covered most of their needs and understood that textbooks could not be copied in whole. Educators need good intellectual property legal counsel and an easy method to assimilate materials that explain copyright law. Graphics, teaching videos, and someone they can ask at the educational institution are possible remedies. The more knowledgeable educators become the better they can still have some control over their “hand-outs,” online curriculum, and web sites. The fear of costly lawsuits could impact higher education and make innovative instructors march to the same drum of approved materials. With the expanding universe, so-to-speak, the Internet will continually bring up new questions about copyright laws that impact all of us.

          

References

Gasaway, L. (2011). University of North Carolina. When U.S. works pass into the public domain. Retrieved from http://www.unc.edu/~unclng/public-d.htm

Calter, M. (n.d.). Stanford University Libraries and Academic Resources. Copyright. Renewal Database. Retrieved from http://collections.stanford.edu/copyrightrenewals/bin/page?forward=home

Christopher, A. (2004). The TEACH Act: Higher education challenges for compliance. Educase Center for Applied Research, (13). Retrieved from http://net.educause.edu/ir/library/pdf/erb0413.pdf

Copyright Act of 1976, 17 U.S.C. § 101 (2012). Retrieved from http://www.copyright.gov/title17/92chap1.html

Crews, D. (2002). Amercian Library Association. New copyright law for distance education: The meaning and importance of the TEACH Act. Retrieved from http://www.ala.org/PrinterTemplate.cfm?Section=distanceed&Template=/ContentManagement/ContentDisplay.cfm&ContentID=25939

Stim, R. (2010). Stanford University Libraries: Copyright & Fair Use. Overview and Resources. Retrieved from http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/

The TEACH Act. Retrieved from http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=107_cong_bills&docid=f:s487es.txt.pdf

Waterhouse, S., & Rogers, R. (2004). The importance of policies in e-learning instruction. Educause Quarterly, 27(3). Retrieved from http://net.educause.edu/ir/library/pdf/EQM0433.pdf

Waxer, B. M., & Baum, M. L. (2007). Copyright on the Internet. Boston, MA: Thomson Course Technology.

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An Evaluation of Copyright Ownership and Infringement

Scrooge McDuck (Photo credit: Wikipedia)

Case Study Challenge 1
You’ve had an idea for an animated character in your head and have talked about it with your friends for years. One day, you sketch out the character using pen and paper and name it Tex Tip Top. You give a copy of the sketch to a friend who does 3D animation, and you ask her to help you fill in details and smooth it out. She does all that and more. Unbeknownst to you, she creates an entire storyline around your character and makes it into a 3D animated film that wins the top prize at an online film festival. In the credits, she thanks you for your idea.

1. Based on your knowledge of copyright, answer the following questions:

a. Who owns the copyright to Text TipTop’s name, the overall character, and his specific attributes? Include arguments for and against both sides, and then state which one you believe is correct.
b. Based on you answer, who can make Tex TipTop into an action figure and why?
c. Who do you think owns the movie, and why? 
d. Can these items become public domain? How? 

Copyright covers the fixation of an idea -- it must be expressed in a solid, tangible form of written word, drawing, photograph, recording -- it cannot just be an idea.(Stim, 2010). However, once that idea is fixed, in a tangible form, the author has copyright protection, even without applying for a copyright. Since 1989, all original works expressed in a tangible medium become instantly copyrighted (17 U.S.C. § 101, 2008).  However, it is not always that straight forward.

Examine Case Study 1: “You had an idea for an animated character in your head and have talked about it with your friends for years. One day, you sketch out the character using pen and paper and name it Tex Tip Top. You give a copy of the sketch to a friend who does 3D animation, and you ask her to help you fill in details and smooth it out. She does all that and more. Unbeknownst to you, she creates an entire storyline around your character and makes it into a 3D animated film that wins the top prize at an online film festival. In the credits, she thanks you for your “idea.”

One of Scrooge's first panels in Christmas on Bear Mountain. (Photo credit: Wikipedia)

Since you drew the fictional character on paper and named it, you automatically have a copyright; cartoons and drawings are not the exception. “Thus a drawing, picture, depiction, or written description of a character can be registered for copyright.” (U.S. Copyright Office 2010, p.1). However, if you have no evidence that you drew this character first, no dated copy, no registration with the copyright office, then you could be unprotected and without copyright benefits. When you file with the copyright office, the date of registration is the date the office receives the materials and fees (U.S. Copyright Office, 2010). Fictional characters are often worth more than the books and stories from which they gain their attributes (Foley, 2009). Intellectual property has become the legal means to protect fictional characters that are worth millions. According to Foley, Forbes magazine lists the net worth of the top fictional characters each year. In 2007, Walt Disney’s character, Scrooge McDuck was valued over $28.8 billion (Foley, 2009). The character, Tex, may have protection under copyright law, but only after he has character and life, “usually copyright law protects a fictional character within the context of the work in which the character appears.” (Zecevic, 2005, p. 365).  However, fictional animated characters have the potential to reap large profits as is evident in the fact that heirs of Jack Kirby have tried to reclaim copyright of the comic book characters he created in Marvel Comics (Scipior, 2011).

Although it is always difficult to bring up legal matters with friends, the friendship will have a better chance if the business relationship is outlined on paper in the form of a legal agreement. Most companies will not share any ideas until you have signed a legal non-disclosure form. It is better to take this stance with a friend as well. Unfortunately, at the end of the award-winning film, your friend only credits you with the “idea,” which does not bind her legally to share any copyright benefits. However, you have a case in that you gave her a fixed, tangible drawing of the character, and in doing so; you held a copyright of that drawing (17 U.S.C. § 101, 2008).  She could actually be infringing on your copyright of Tex, even if you did not file a formal copyright (Stim, 2010). The fact that she completed the 3D animation without including you may indicate that she thought you had no interest and you freely gave her the drawing, or she knew it was a good character and decided to run with it so she could have all the benefits. Of course, your idea, even though sketched-out, would not have resulted in the film without your friend.  A legally binding agreement should have been spelled out in a formal contract at the beginning. In all likelihood, she holds the rights to the film and you may hold the right to the character, as you drew it.

The name of your character, Tex Tip Top, though clever enough, cannot be copyrighted, as names and titles are excluded from copyright protection (Stim, 2010). There is still the possibility of a trademark, but that is not clear either.  “Federal trademark protection does not attach automatically when a character is created (Feldman, 1990, p. 705). The name cannot be trademarked until it is identified with goods or services (Feldman, 1990). If Tex Tip Top is made into an action figure, his name can be trademarked with legal protection. There is some conflict in who can make the action figure. Legally, you hold a copyright of the figure drawn on paper. She most likely has the film right, where Tex gets his character. Since the character was fully developed by your friend, you may not be able to trademark the name Tex Tip Top as the sole owner, because of another complication of the trademark law that requires the character to have developed “secondary meaning” (Foley, 2009).  For example, Mickey Mouse is immediately connected with Disney. Therefore, Tex has not been in the public view long enough to be associated with it’s creator, and probably cannot be trademarked until years later, if he gains in popularity. Tex would have secondary meaning with the film of your friend. This seems to be a bit backwards, no protection until the character becomes as famous as Mickey Mouse, but for some creators, such as the characters of Star Wars, their infamy was not delayed.  The time to file the trademark seems to be difficult to determine. If you claim the copyright to your fictional character as drawn on the paper you gave your friend, you may be able to produce the action figure, after which time a good is now provided and a trademark may be assigned.

The fictional character, Tex Tip Top may have copyright protection, separate from the movie. This means two copyrights – the movie and the fictional character. Tex Tip Top must be “deserving of copyright protection separate from the original work in which the character first appears.” (Foley, 2009, p. 925). Tex cannot be just a stock character; he must have originality. The creator of the film, who took your drawing and turned it into a fictional character within a story, may not be able to claim the copyrights. Assuming she wrote the script and story for Tex, she may apply for a copyright on Tex and have “exclusive right to create derivative works.” (Foley, 2009, p. 926). But, this is complicated, because the drawing of the character was already fixed on paper by you, the originator, who can claim copyright (U.S. Copyright Office, 2010). However, the law is not that clear and the courts must often decide on copyright infringement of fictional characters, determining if the character is even worthy of protection. (Foley, 2009) For example, “Detective Comics, Inc. sued Bruns Publications for infringement of the fictional character Superman.” (Foley, 2009). In this case, the court ruled that the Bruns character, Wonderman, infringed on the character of Superman under the distinct delineation standard, that Superman embodied “an arrangement of incidents and literary expressions original with the author” (Foley, 2009, p. 928). The court found that Wonderman had too many similarities to Superman, yet they did not want to forbid any and all characters that were heroic in nature. Superman had protection under law by his character – the method of power he used and his costume (Foley, 2009). The more distinctive the fictional character of Tex Tip Top, the better chance he will hold up in court as a distinct delineation. Under this description, the friend who produced the Tex Tip Top into a 3D animation film, writing the story and giving Mr. Top character in a tangible form, may claim to have ownership. However, if she developed that character and did not give him a unique personality and costume, she could be infringing on another fictional character already famous, such as the Superman controversy. She could be infringing on your original drawing, or if she changed it, and copied another, she may be infringing there.  An equitable agreement would be to share the trademark and copyrights of the character and film, and all proceeds from the sale of any action figures or other paraphernalia. But of course these legalities should have been formed prior to any disclosure.

The question of when Tex Tip Top enters the public domain remains to be answered. When a fictional character is covered by both a trademark and copyright, he may never enter the public domain. The copyright can expire, but the trademark continues (Foley, 2009).  In the 1970s, two cases went to court that seemed to support the protection of the trademark after the copyright expires for illustrations and “graphic representations of characters.” (Foley, 2010, p. 955). With respect to a fictional character, the other case in court ruled “if the fictional character serves a trademark function, it will be removed from the public domain in the same manner as any other trademark.” (Foley, 2010). Also, of conflict is the possibility that the trademark can limit the fair use copyright. This is of particular concern, when the purpose of the copyright is not only to protect the creator for a designated period of time, but also to encourage more creative talent by building upon previous creations (Stim, 2010).

Case Study Challenge 2
You find a great photo on the Web, download it to your computer, modify the photo with one of your own photos in an image-editing program such as Adobe Photoshop, and then silk-screen it onto 20 shirts.

1. Based on your knowledge of copyright, identify whether the following are copyright myths or facts, and give the reasons for your answer.

a. There was no copyright symbol on the Web page where you found the photo, so it is not protected by copyright.
b. Because the photo was freely available on the Web, it is in the public domain.
c. The picture looked really old, so it is probably in the public domain.

2. Based on your answers, read the following statements and identify any rights of the original author that might have been violated.

a. You’re going to donate the shirts for a charity’s silent auction, so you won’t make any money off of it.
b. You’re not selling the photo, just the shirt.
c. You plan to send half the proceeds from your t-shirt sales to the Web site where you found the photo.
d. Determine if the image is public domain. 

In Case Study Challenge 2, you find a great photo on the Web, download it to your computer, modify it with Adobe Photoshop and silkscreen it onto 20 shirts. Even though there was no copyright symbol on the Web page where you found the photo, this is no indication that the photo is not copyrighted. As of 1989, the U.S. Copyright Law does not require creators of fixed works to formally register their works to have a copyright (Waxer & Baum, 2007). Once the author of the photo published it on the Internet, unless he specifies that it is in the public domain, you have no way of knowing the legal implications of using the photo. In fact, you would have to assume that the owner holds a copyright, since it is automatically granted once fixed on that Web page (Stim, 2010). The only way to determine if the owner has placed it in the public domain is to contact the said author. Otherwise, the owner of the photograph has reason to notify you to cease and desist, and can file a suit against you for using it without authorization. Even a photo that appears to be old is not a safe download. The only photos that are in the public domain are (1) those that were published prior to 1923; the copyright has expired  (2) those from 1923 to 1964 when the owner did not renew the copyright, (3) the owner placed them into public domain (4) works published before 1989 that were not officially copyrighted (Waxer & Baum, 2007).

            The owner of the photo has all rights and therefore you cannot legally silk screen the photo on a shirt. Copyright protects the creator of the photo and prohibits its use by others, as an original or in altering it (Waxer & Baum, 2007). Donating the proceeds from the sale of said shirts to the owner of the photo does not preclude a lawsuit being filed against you. There are no legal provisions for use of a copyrighted photo and forwarding the monetary benefits to the owner. In fact, the purpose of copyright is to protect the owner from infringement that might result in the use of the protected photo in a manner that the owner would not approve (Stim, 2010).

            A better option than selecting a photo with no indication of copyright is to choose among those that are in the public domain or creative commons. Photos taken before 1923 are in the public domain and can be used without complication of law. The Library of Congress has a searchable database of available photos (Waxer & Baum, 2007). Other sites are universities, government sites, public libraries, and photo sharing sites that display the Creative Commons mark. Photos taken before 1989 may be difficult to determine if the creator filed a copyright. You also have the problem of earlier photos that may or may not have been renewed with a copyright. For this reason, it is best to assume that photos are copyrighted unless specified otherwise. Those that are in the Creative Commons will be available with some restrictions, most notably, to give attribution. The Creative Commons site allows creators/authors to choose the type of restrictions they desire and post them with the photo – the “copyright holder keeps copyright but allows people to copy and distribute copyrighted work provided they meet stipulations in the license.” (Waxer & Baum, 2007).

  United States Capitol, 1830s

Collection: A. D. White Architectural Photographs, Cornell University Library

Accession Number: 15/5/3090.00571

Title: United States Capitol, 1830s

Architect: Benjamin Henry Latrobe (English, 1764-1820)

Print date: ca. 1829-ca. 1839

Building Date: 1793-1962

Location: North and Central America: United States; District of Columbia, Washington

Materials: lithograph

Persistent URI: http://hdl.handle.net/1813.001/5spn

There are no known U.S. copyright restrictions on this image. The digital file is owned by the Cornell University Library which is making it freely available with the request that, when possible, the Library be credited as its source.

References

Copyright Act of 1976, 17 U.S.C. § 101 (2011). Retrieved from http://www.copyright.gov/title17/92chap1.html

Feldman, D.B. (1990). Finding a home for fictional characters: A proposal for change in copyright protection. California Law Review, 78(3). Retrieved from http://ehis.ebscohost.com/ehost/pdfviewer/pdfviewer?sid=b980221e-258c-4e0a-b60d-0baefa3cb7c9%40sessionmgr4&vid=2&hid=116

Foley, K. (2009). Protecting fictional characters: Defining the elusive trademark-copyright divide. Connecticut Law Review, 4(3). Retrieved from

http://burger.law.uconn.edu/system/files/private/foley.pdf

Scipior, V. J. (2011). The amazing spider-man: Trapped in the tangled web of the termination provisions. Wisconsin Law Review, (1).

Stim, R. (2010). Stanford University Libraries: Copyright & Fair Use. In Overview and Resources. Retrieved from http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/.http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview

United States Copyright Office. (2010). Cartoon and Comic Strips. Retrieved from http://www.copyright.gov/circs/circ44.pdf

Waxer, B. M., & Baum, M. L. (2007). Copyright on the Internet. Boston, MA: Thomson Course Technology.

Zecevic, J. (2006). Distinctly delineated fictional characters that constitute the story being told: Who are they and do they deserve independent copyright protection? Vanderbilt Journal of Entertainment and Technology Law. 

Copyright Laws in Higher Education

Credit: Dr. Marcus Gossler

Copyright laws continually present problems for institutions and faculty in higher education as the profitability of electronic materials increase (Simon, 2010, p. 457).  There has been a steady increase in “two- and 4-year degree-granting institutions in the United States, or 56%, offered distance education courses” (Kranch, 2008, p. 350).  As higher institutions disseminate course information via the Internet, the likelihood of copyright ownership and their infringements becomes apparent.  Instructors, students, and colleges become involved when their works become fixed in media through software and online platforms (Kranch, 2008). Students may not know that their “fixed” works are immediately copyrighted and that they have an exclusive ownership of their writings and photographs (Lyons, 2010). Web surfers are less likely to know that all the material they peruse, copy and paste is owned by someone or some institution, regardless of a copyright mark. The question of ever more laws to circumscribe the existing copyright laws must be addressed (Samuelson, 2011, p. 30). Furthermore, the laws governing nonprofits, higher education, corporations, and individuals are often difficult to navigate, only to be resolved by a court. The protection a copyright offers must be balanced with the deleterious effects of preventing material to be shared for the benefit of learning and progress (Samuelson, 2011).  Legal battles can forestall the sharing of good ideas, creative learning devices, and the advancement of society.

The Copyright Act protects the creator of a work by giving him exclusive rights to make copies of that work for a specified time (17 U.S.C. 101). Ownership of a copyright should be balanced by the benefits. While there are benefits to making more information available in the public domain or at least offer it through a creative commons license, society should not neglect the needs of the creative talent (Klein, 2010, p. 3). Institutions are like corporations, and they provide a sound base of salary and benefits for the creative genius to produce works worthy of copyright and financial rewards. Both the institution and the faculty members stand to benefit (Klein, 2010, p.8). Some faculty may not produce significant works that have monetary benefits and/or may be content to use others works. But for those who do create new materials while enjoying the security of a paycheck, benefits, and often tenure, the question of who owns the works comes under scrutiny. Institutions vary in the way they handle this, from offering “1) outright faculty ownership, particularly when faculty created work on their own time with ‘independent efforts; 2) outright institutional ownership, often as ‘works made for hire’; and 3) ‘joint ownership’”(Klein, 2010, p.3). Colleges may be more agreeable than corporations to negotiating a shared ownership, as evidenced by a study in 2008 showing that faculty still owned copyrights under the provisions of creating the work on their own time (Klein, 2010).  

Higher education may offer a more secure place of employment than the corporate world. Faculty may not need the extra financial income generated from one of their copyrighted materials. But they may better be able to protect their rights and claim that their contributions make the institution more valuable, both monetarily and notably. Faculty members that contribute course materials become more valuable to the institution, but if they wish to keep some ownership of their creations, they must navigate contracts that may stipulate exclusions for work that is hired or commissioned (Blanchard, 2009, p. 61). A more equitable agreement would include the faculty member and the institution, since both stand to benefit from the copyright works (Blanchard, 2009, p. 68). Of course, in the corporate world, almost all employees are required to sign away all of their intellectual property they develop during their employment. Corporations go to great lengths to have employees sign non-disclosure agreements, non-compete agreements, and a legal document signing away all their interest in any intellectual property they produce. While some protection for corporations is valid, too often they reach in and take everything. Some corporations and institutions of learning will compromise, signing agreements that spell out the arrangement of royalty in case of intellectual properties being constructed (Klein, 2010, p. 7).  However, as institutions of higher education become more like corporations, there is a legitimate concern that they will try to claim the rights to everything produced by their “employees.” As online learning demands more content, professors are being asked to create works. Plus, faculty members are creating more content that is assessable online (Kranch, 2008, p. 353). A great deal of time and creativity can go into preparing and launching materials for online courses. While it is true that institutions provide a safe harbor for their employees to develop educational materials, greater cooperation between employer and employee will benefit all of higher education (Blanchard, 2010, p. 68). Acknowledging this relationship should create an agreement of shared copyrights. Wise faculty members will approach their contract of work with a legally binding agreement specifying the shared works that he/she may produce (Kranch, 2008, p. 354). Left to the open market, universities that work with their faculty and share copyrights or even take a lesser royalty, will likely draw more top-tiered professors and aspiring educators, while those that claim the “work for hire” clause and take all the rights, may attract less interested parties. University settings contribute to the success of many educators’ endeavors by providing the campus, colleagues and recognition among the education community (Kranch, 2008, p. 351). But, the reverse is true as well; universities benefit by a rich, creative faculty. Of course, higher institutions and corporations can dominate the agreement process; they have legal counsel and money; the educator may feel he cannot negotiate a good agreement due to his overriding need for employment. On the other hand, a lone entrepreneur, unattached to a university may not be able to sell his wares as easily as the prominent Harvard professor. That the employer provides more than just a salary is possible and therefore may justify a small percentage of royalty going to the institution.

In contrast is the unattached creator who develops educational materials without the comforts of a weekly paycheck and job security. There should not be any contest here, as the holder of the copyright stands the need of financial benefits entirely, and has not receiving support from a higher institution or corporation (17 U.S.C. § 101, 2008). This is the example of the entrepreneur who forgoes the corporate or institutional salary to produce works in hopes that he will license his work and thus receive funds to support his endeavors. In such a case, the inventor probably had to live a more stressful life in hopes of creating a work for his support, yet there will be no question that he owns the copyright outright (17 U.S.C. § 101, 2008). Therefore, it seems a shared ownership of intellectual properties is equitable when works are produced in the context of employment; there is a benefit of the paycheck that may give an educator more freedom of time to create. Unfortunately, powerful institutions, like corporations often become greedy and reach in, taking more than what is fair and equitable (Blanchard, 2008, p. 68).

Students may not know that they hold the copyright to the works they write and produce in a fixed format (Lyons, 2010). This information is not usually visible or clearly explained in a course of study. That an instructor must ask permission to keep and use a student’s work alludes to this ownership, but it is most likely not spelled out in the context of course materials or conveyed to the student.  It seems fairly straight forward that a student, who pays for his education, would have the copyright for all the work he produces. He is neither producing “work for hire” or even under the guise of being employed (Kranch, 2008, p. 351). This may change if a student of higher education becomes a graduate student and receives some pay for being a teacher’s aid. For any of the work a student produces for a faculty member, copyright ownership may be contested. If the student contributes without pay, but the faculty member is paid and he falls under the “work for hire,” the copyright could be claimed by the institution, leaving the student without much recourse.

Some college graduates that have left the university setting are in a position to create and provide educational materials without the conflict of “work for hire.” For example, Salman Khan started his online academy from his home, where he was not forced to sign over his innovative works to his employer (Young, 2010, para. 2).  Students are in a similar situation where they are not bound to the university to which they attend, and can conceivably produce creative works and keep sole ownership of the copyright. Perhaps this is the best scenario and time to develop works, as a student.

Copyright rules become so complex and pervasive, that it stifles educators when putting together information to be shared with students. Not only do they need a contract defining their contributions, there is confusion to what constitutes “fair use” (Klein, 2010, p. 4). This is especially confusing in the global atmosphere of online learning, where countries may have differing copyright laws. For example, in Canada “Fair use is an American copyright concept and it does not apply to Canada” (Nenych, 2011, p. 5). The fact that online works do not need to carry any information about their copyright rules means little except everyone must assume it is copyright protected and off-limits for use (Lyons, 2010, p. 63). Fear of litigation can further plug the system of open knowledge bases. Greed certainly has a strong influence and slows the progress of disseminating information.

Higher education is essentially a business, whether it is set up as a nonprofit or for profit (Klein, 2012, p. 8). Therefore, the copyright laws for educational institutions that supply services should be the same as for corporations that provide goods and services. However, I would not adhere to the “work for hire” concept with either entities, but would instead offer a compromise where the creator holds the majority of the copyright and the institution or corporation holds a smaller royalty. This would strengthen the position of the faculty member and the employee and at the same time give them protection from infringers. One is less likely to use material if there is a fear of litigation, which is usually only affordable to big institutions than the lone person. This would allow the creator of works to receive financial dividends and have protection and contribute to a less adversarial relationship. Both parties can benefit.

Of course, if everyone’s work is copyrighted, everyone must pay to use it, and those without the financial means will be left out. This is of great concern in the field of learning (Lyons, 2010, p. 57).  Education may have more issues with copyrights covering educational materials that could be easily copied and reproduced, expensive to make the first time around, but easily copied (Boyle, 2008, p. 4). This is where protection may be needed.  For those who need finances to live, they need the benefits of a copyright that covers a profitable creation. On the other hand, for those creators who desire to share their innovations, they may do so under the less restrictive, Creative Commons (Boyle, 2008, p. 181). No one is happy to sign over his work without contributing to the decision in how it should be shared. The Internet has made information available at rapid speeds and to a global campus, “knowledge, once feeding the productive processes and services of these corporations, now is itself deemed property” (Sun, 2009, p.4).  This is a concern as education and educators look forward to a more open access model for learning (Lyons, 2010, p. 63).

References

Blanchard, J. (2009). The teacher exception under the work for hire doctrine: Safeguard of academic freedom or vehicle for academic enterprise? Innovative Higher Education, 35(1), 61-19.

Boyle, J. (2008). The public domain: Enclosing the commons of the mind. New Haven, CN: Yale
            University Press.

Copyright Act of 1976, 17 U.S.C. § 101 (2011). Retrieved from
             http://www.copyright.gov/title17/92chap1.html

Klein, M.W. (2012). Ten Years After Managed Professionals: Who Owns Intellectual Property Now? Journal of Collective Bargaining in the Academy, 2(2), 1-10.

Lyons, M. G. (2010). Open access is almost here: Navigating through copyright, fair use, and the TEACH act. The Journal of Continuing Education in Nursing, 41(2), 57-64.

Nenych, L. A. (2011). Managing the legal risks of high-tech classrooms. Contemporary Issues in Education Research, 4(3), 1-7.

Simon, D. A. (2010). Teaching without infringement: A new model for educational fair use. Fordham Intellectual Property, Media & Entertainment Law Journal, 20(2), 453-561.

Sun, J. C., & Baez, B. (2009). Special issue: Intellectual property in the information age: Knowledge as commodity and its legal implications for higher education. ASHE Higher Education Report, 34(4), 1-151.

Young, J. (2010). College 2.0: A Self-Appointed Teacher Runs a One-Man 'Academy' on YouTube. In The Chronicle of Higher Education. Retrieved September 15, 2012, from http://chronicle.com/article/A-Self-Appointed-Teacher-Runs/65793/

Aspects of Copyright

copyright (Photo credit: A. Diez Herrero)

     

     It has become difficult to strike a balance between stimulating innovation and protecting the creator of that innovation since the development of computer technology and the Internet. Intellectual Property laws have always addressed these issues either through patents, trademarks, or copyrights. The Internet has made the dissemination of information fast and pervasive, making protection of creative works equally fast and comprehensive. Although copyright has a meaningful purpose, the explosion of knowledge and information via technology necessitates a careful analysis of the existing laws that govern copyrights. The elements of “fair use,” “teacher exception,” and “work for hire” are often vague. (Samuelson, 2011) The time frame of how long copyrights last and when they become available for the public domain is either too long, or too vague. 

English: Statute of Anne, the first modern copyright law. Español: Estatuto de la Reina Ana. Inglaterra, 1710. Primera ley de copyright conocida en Occidente. Magyar: Anna statútuma, az első modern szerzői jogi törvény. (Photo credit: Wikipedia)

   

     Copyright evolved out of a law that was used to identify authors who might have been subversive, or revolutionaries, that the governments wanted to expose. (Boyle, 2008) In 1710, Britain passed the Statute of Anne -- the first copyright law, passed by government to resolve problems with publishers and booksellers, not authors. (Boyle, 2008) It gave the right to “copy” a book, hence the name, “copyright.”

     As copyrights evolved, they began to protect the artist or creator for a period of time, as established by law. Protection is not all bad; “intellectual property decentralizes the choices about what creative and innovative paths to pursue while retaining the possibility that people will actually get paid.” (Boyle, 2008) Copyright has also served to stimulate creativity and monetarily awarding those who succeed. The starving artist knew that if his work became profitable, he would too. “Having been given the ability to forbid people to copy your invention or your novel, you can make them pay for the privilege of getting access.”(Boyle, 2008)

     One of the difficulties with copyrights today is the growing number of them. (Blanchard, 2010) Before 1978, artists were required to register their creative works with the United States Copyright Office. Those works were copyrighted for a period of 28 years unless renewed. (Boyle, 2008) The term was deemed reasonable enough time for the author to collect financial dividends after which time the work could be renewed, or if not profitable it would fall into the public domain. These works would then be assessable to other artists to use or alter, free of charge. (Blanchard, 2010)

   
     This was the standard until 1987 when copyright law changed. After the Berne Convention, the formalities of applying for a copyright were dropped. The Berne Convention for the Protection of Literary and Artistic Works was an international forum for copyright policy. (World Intellectual Property Organization) Based on the theory that authors have a natural right to their works, the formality of registering a copyright was deemed unnecessary. With the advancement of technology, some people would like to see the formalities returned to the copyright practice. (Samuelson, 2011)

     Today, copyrights are instantly applied as soon as a work is fixed.  (Copyright Law of the United States) This creates a huge number of copyrights being created everyday and launched on the global digital network. Copyrights are “assigned” oftentimes without the authors even knowing they have one. (Kranch, 2009) But this “instant” copyright has valid legal terms, preventing others from using almost any work published on the Internet. 

For those wanting to use material found on the Internet, it becomes difficult to gain permission from copyrighted works, especially if held by corporations or the government. The laws are strict and there is no legal room for “not knowing” a work was under copyright. (Boyle, 2008) Some authors of creative works want to share their products, and do not feel the need to claim a copyright restriction. But this is not often visible to anyone searching the Internet.

Image via CrunchBase

     One innovative approach has been to apply a new form of sharing, or label that displays the rules of sharing. This is called the Creative Commons. (Creative Commons) Under the Creative Commons license, authors and creators can choose the methods of protection and sharing that they need. A Creative Commons licensor has control to retain his copyright “while allowing others to copy, distribute, and make some uses of their – at least non-commercially.” (Creative Commons) Credit for the work is retained and it works globally.  A small emblem is affixed to the work to notify anyone who finds the work on the Internet. The six licenses include the “cc” creative commons mark, with other symbols explaining the details. Works can be licensed to share commercially or not, to be remixed, tweaked, built-upon, redistributed or not. Credit attribution is defined. (Creative Commons)

     One of the problems is that copying works has become easier with the computer and the internet. Expensive to produce the first one, cheap to copy, presents a problem. “Assume that wherever things are cheap to copy and hard to exclude others from, we have a potential collapse of the market” (Boyle, 2008) The Creative Commons is one way to approach this.

Today, a copyright lasts for 75 years after the death of the author or 95 years if it was a “work for hire” and held by a corporation. (World Intellectual Property Organization) The books, films, and art of the 20th century remain under-cover, locked-up, and unavailable. (Boyle, 2008) Also, it is estimated that only 85 percent of all copyright holders renewed their rights after the established 28 years required pre-1978. Add to this “orphan works” that have no name on the copyright; and yet no one can print them or use them. They are lost, in a sense, yet they sit at the Library of Congress. Work produced before 1923 are in the public domain today. But 95 percent of books are untouchable (Boyle, 2008)

     The question becomes how long should a copyright last – to protect the inventor, provide incentive to do the work, and yet not remove it from society?  It may be advisable to have copyright owners renew their works, if they deem them profitable. (Boyle, 2008)Those who have no interest can let them fall into the public domain, where another creative person may build upon it.

     The number of copyrights is accumulating with every new text or creative word fixed on a web page. And although the web is in the public, with many contributors, the works produced are not in the public domain. This creates confusion for many who do not understand copyright law. The “fair use” term can be applied for some copyrighted materials when used by news media, educators, nonprofit organizations, and researchers; but only for specific uses of commentary, parody, news reporting, research, and education. (Copyright Law of the United States) This is not always clear even with the four factors that are addressed: the character of the use, nature of the copyrighted work, the amount used, the effect on the market value of the original work. (Copyright Law of the United States)

      Copyright carries a “strict liability” and therefore, libraries and businesses are not in a position to reproduce work that may still be under copyright; better to wait out the 100 years. (Blanchard, 2010) For example, Google is being sued over copyright violation, even though they had attorneys set up an option for authors to “opt-out” of their digitization books site, “Google Books.”(United States Copyright Office)

     Another complication of the copyright law is the “teacher exception” and “work for hire” which was amended in 1976. (Blanchard, 2010)  As higher education begins to add distance learning, colleges are commissioning faculty to design curriculum, which may or may not belong to the teacher. (Blanchard, 2010) The question of whether the material created is part of the scope of work as an employee of the university or if it falls under the “teacher exception” is not clear. Universities have their own policies that spell out the exact nature of the copyright issues. Although in corporate settings there is not question about ownership of the copyright. As an employee, you work for the company and anything you create is owned by them and falls under the “work for hire” clause. Professors get the same benefits of a corporation, in that they have secured income, resources, and contacts. Yet, they get a better chance of being included in a copyright if not being able to own it outright. Sharing royalties seems to be a more equitable solution. Without the comforts of job security and resources, individuals may not be able to risk the time to create a work worthy of copyright. This creates confusion when determining how much a university contributes to the project in question and whether a teacher can create works off-site and off-hours and own the copyright. Universities do not usually try to “secure the copyrights to faculty writings.” (Blanchard, 2010) But will this be the case when professors create online courses and sell them to other universities?

     Boyle suggests that authors register their works, and get a copyright, much like the patent process, and more like the copyright law prior to 1978. (Boyle, 2008) The copyright could last for 28 years and be renewable if the author desires. Otherwise it would become available to the public. This would cut down on the number of patents and the invisibility of those patents. (Samuelson, 2011) The public would have access to expired patents much earlier than the 100 years now, and works without the copyright sign would be considered in the public domain. The use of the Creative Commons license could further simplify determining when a work on the Internet is available for use. Although copyright protection has benefits for those seeking a livelihood, the length of a copyright should probably more be in line with the length of other intellectual properties, such as patents. There is room for everyone to benefit.

References

Blanchard, J. (2010). The Teacher Exception under the Work for Hire Doctrine; Safeguard of     Academic Freedom or Vehicle for Academic Free Enterprise? Innovative Higher Education , 35.

Boyle, J. (2008). The Public Domain: Enclosing the Commons of the Mind. New Haven: Yale University. Retrieved from: http://thepublicdomain.org/thepublicdomain1.pdf

Copyright Law of the United States. (n.d.). Retrieved from: U.S. Copyright Office.

Creative Commons. (n.d.). Retrieved from: http://creativecommons.org

Kranch, D. A. (2009). Who Owns Online Course Intellectual Property? Quarterly Review of Distance Education , 9 (4). Retrieved from:  http://ehis.ebscohost.com/ehost/pdfviewer/pdfviewer?sid=ec044ef6-b340-428f-8700-40ec38584431%40sessionmgr11&vid=4&hid=1

Samuelson, P. (2011). Legally Speaking Too Many Copyrights. Communications of the ACM .

United States Copyright Office. (n.d.) Legal Issues in Mass Digitization:  A Preliminary Analysis and  Discussion Document from: http://www.copyright.gov/docs/massdigitization/USCOMassDigitization_October2011.pdf

World Intellectual Property Organization. (n.d.). Retrieved 09 08, 2012, from: http://www.wipo.int/copyright/en/ecommerce/ip_survey/chap3.html