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.