Copyright and Intellectual Property Rights in the Digital Information Age

by Andy Howard

Introduction

The Internet has transformed the way we work, learn, and play in the United States. It is unavoidable, therefore, that the Internet has also created revolutionary changes in our legal system. This section looks at how digital law affects community college teaching in areas of copyright, privacy, and intellectual property rights.

A Primer on Copyright, Privacy and Intellectual Property in the Digital Information Age

Penalties for infringement of copyright
This may seem backwards to start with the penalty for breaking the law before discussing what the law is but in teaching theory this is called an "attention getter." The penalty is stiff: the court can award up to $100,000 for each separate act of willful infringement. Willful infringement means that you knew you were infringing and you did it anyway. Ignorance of the law, though, is no excuse. If you don't know that you are infringing, you still will be liable for damages - only the amount of the award will be affected. Then there are attorneys' fees.... The point is you should pay attention to the following section.

Copyright basics
What is copyright? Boiled down to its essence, copyright protection turns on the existence of two essential elements: the creation of an original expression that is fixed in a tangible medium of expression. Facts, discoveries, and ideas in and of themselves are not subject to copyright protection because they do not exist as a result of an act of authorship. It is not required to register a copyright since protection is granted as soon as the work is fixed in a tangible medium

Who can claim copyright?

There are four forms of copyright ownership:

  1. The author of the work.
  2. Joint ownership when there are two or more authors.
  3. Collective ownership contains a number of contributions, each of which is a separate and independent work that are assembled into a collective whole, e.g. an encyclopedia.
  4. "Work for Hire": The first is a work prepared by an employee within the scope of his or her employment. The second type of work made for hire is a work that has been specifically ordered or commissioned.

Exclusive rights of copyright owners

  1. Reproduce the copyrighted work
  2. Prepare derivative works or adaptations based on the copyrighted work
  3. Distribute copies of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending
  4. Perform the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, motion pictures, and other audiovisual works
  5. Display the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work.
  6. How long is a copyright good? For works created after December 31, 1978, the term of copyright protection is the life of the author plus 70 years. For joint works, the term is the life of the last surviving author plus 70 years from the first date of publication or 120 years from creation of the work, whichever is shorter. For works created before 1978 that are still entitled to copyright protection, the total term of the copyright is 95 years.

Educational Fair Use Policy

Now for the good news. Teachers are granted special rights to use copyrighted material under what is called the "fair use policy."  Whether a particular use qualifies as fair use depends on all the circumstances.

Fair use balancing test

There are four primary factors used to determine if instructors can use copyrighted material in their classroom. (Uses on the left tend to tip the balance in favor of fair use. The use on the right tends to tip the balance in favor of the copyright owner - in favor of seeking permission. The uses in the middle, if they apply, are very beneficial: they add weight to the tipping force of uses on the left; they subtract weight from the tipping force of a use on the right.)

  1. The purpose and character of the use
    including whether such use is of a commercial nature or is for nonprofit educational purposes. While not at all determinative, courts have generally ruled that preference will be granted to works that were created for non-profit educational purpose
    • Nonprofit
    • Educational
    • Personal
    • Criticism
    • Commentary
    • News reporting
    • Parody
    • Otherwise "transformative" use
    • Commercial
  2. Nature of the work
    This second factor acknowledges that fact that some works are simply more deserving of copyright protection than others. Consequently, this portion of the test looks at the original work and attempts to determine where that work is in the spectrum of worthiness of copyright protection.
    • Fact
    • Published
    • A mixture of fact and imaginative
    • Imaginative
    • Unpublished
  3. Amount & substantiality of portion used
    The third factor looks at the amount and substantiality of the copying in relation to the work as a whole. However, the critical determination is whether the quality and value of the materials used are reasonable in relation to the purpose of copying. This is not a pure ratio test in that using a whole work may be fair use in some circumstances, whereas using a tiny fraction of a work does not qualify for fair use in other circumstances. Therefore, the quantity, as well as the quality and importance, of the copied material must be considered. Some Justices have looked to see that "no more was taken than was necessary" to achieve the purpose for which the materials were copied.
    • Small amount
    • Large amount
  4. Economic impact on market value of the work
    The fourth factor considers the extent of harm to the market or potential market of the original work caused by the infringement. This test takes into account harm to the original, as well as harm to derivative works
    • Small impact
    • Significant impact

Some "Rules of Thumb"

Here's some basic "Rules of Thumb" that will help you determine how and when you may use copyrighted material in your class. For a more thorough look at the law, review the Classroom Guidelines that were negotiated in 1976 by Association of American Publishers and The Author's League of America. These "Rules" were adapted from the widely used standards created by the University of Texas and are only meant to be guidelines. They are not intended to replace qualified legal opinion. Be sure to check to see if your college has specific policies on permissible use of copyrighted material

Rules of Thumb for coursepacks

Limit coursepack materials to:

Include

Rules of Thumb for digitizing and using images

Rules of Thumb for digitizing and using others' work in multimedia materials

Keep in mind that the rights described here are rights to create unique works, but not to make multiple copies of copyrighted materials and distribute them.

Students, faculty and staff may

in connection with or creation of

Other fair use guidelines

No more than one piece or two excerpts may be copied from the same author and not more than three from the same periodical or collection during one class term. And there can be no more than nine instances of such copying during one class term.

Intellectual Property Rights

Intellectual property rights starts with a general assumption that the author is usually the owner. (Read the law)

The major exception is for what is called "work for hire" in which case, the author's employer owns the work. (Read the law) A "work for hire" covers materials that: