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Section 2.3: Education Law - Copyright and Fair Use

Copyright law and the fair use doctrine generally afford educators and students more rights, including exemptions to display and perform the works of others. However, there are limitations on use in an online environment. Thus, it is “essential” for educators and students to understand and familiarize themselves with copyright and fair use laws in both traditional and online classroom environments. According to Alexander and Baird of Harvard and Stanford Universities (as cited by Lawhon, Ennis-Cole, & Lawhon, 2006, p. 2):
Violations can result in legal fees, awarding of compensation, loss of a position, and prison time. As online education becomes more common, the legal responsibilities of instructors and institutions in this atmosphere have grown to be both murky and dynamic.

According to Angelo State University’s Copyright Ownership and Administration Policy, OP 76.01, (“Guidelines for Instructional, Research, and Library Use of Copyrighted Material”, 2007, para. 3):

The liability for willful copyright infringement rests with the employee.  Angelo State University will not supply legal assistance to the employee.  Angelo State University employees with questions regarding Copyright infringement may consult the Library Director.  Civil and criminal penalties may be imposed for copyright infringement. (Title 17 U.S.C. §502, 503, and 504).

Before the Technology, Education, and Copyright Harmonization Act (TEACH Act) of 2002 (H.R. 22157) was signed into law, the online classroom was held to an even more restricted set of standards (“Copy Right and Fair Use”, para. 1). The TEACH Act significantly expanded what copyrighted works could be “transmitted” in an online learning environment (Lipinsi, 2003).  The TEACH Act revised Title 17 of the United States Code to include a distance education exemption for “mediated instructional activities transmitted via digital networks” (“Distance Education Exemption,” para. 1).

However, these revisions do not afford educators and students the same rights to “transmit audio and imagery online as it does in the classroom” (Lawhon et al., p. 3). The underlying concern is that the ease of replication and rapid distribution of electronic media internationally will devalue the licensed work.  

To avoid violations and possible legal ramifications, faculty must stay abreast of copyright laws regarding distance learning. “Just because something is on the Internet does not mean that it is there for the taking” (O’Neil, Fisher, & Newbold, 2004, p. 41). The process recommended by the Indiana Higher Education Telecommunications System for determining copyright law compliance is as follows (O’Neil et al., p. 41):

  1. Attention will be paid to the rights and privileges regarding transmission of materials as defined in Section 110(2) of U.S. Copyright Law.
  2. If section 110(2) does not apply, “fair use” as defined in Section 107 may apply. The nature and amount of the work used, and the purpose and effect of the use, will be weighted to determine if fair use applies.
  3. If the planned use of a copyrighted work cannot be addressed by Section 110(2) or 107, permission of the content owner may be required.
  4. Be aware of how to obtain copyright permission. Some institutions may provide assistance in obtaining such permission.

“The TEACH Act specifies that students should be notified that materials included in distance-education transmission may be subject to copyright protection, and notification should be included on distribution of materials for class”, (as cited by Lawhon, p. 3).

Below is an example notification instructors should give to students for any article or chapter from a book distributed in the online course:

Students officially enrolled in (course name and number) should make only one printed copy of the given articles and chapters. You are expressly prohibited from distributing or reproducing any portion of course readings in printed or electronic form without written permission from the copyright holders or publishers.

Following all other guidelines, the instructor may keep a chapter or an article up for one semester. If the instructor wants to include the same materials in a subsequent semester, copyright permission be obtained.

The following is Angelo State University’s Operating Policy and Procedure, OP 76.01: Copyright Ownership and Administration:

For digitized source use in the classroom and for distance learning purposes, Angelo State University follows the copyright laws of the United States. Fair use guidelines and the new provisions of the “Teach Act” will be observed in the Library, classroom, and in distance learning classes.

For use of digitized materials in the classroom or in distance learning classes, the following guidelines should be observed by all ASU faculty members. Only the students officially enrolled in the class have access to the digitized materials. Digitized materials for the class are available only for the length of the semester in which the class is taught. Access and availability ceases at the end of the semester. Fair use guidelines should govern the amount of material digitized from each work or the total amount digitized for each class. All digitized materials must contain a copyright protection notice.

Be sure to get permission for each piece of copyrighted material you plan to use in your online course. Elbaum et al. suggests to include a note to the copyright owners a description of your course, a course syllabus, number of students enrolled in the class, and if you plan to teach the course again (p. 52). Do not use the material if you do not receive permission. “Many authors and publishers are willing to let their materials be used free of charge for educational purposes” (Elbaum et al., p. 52). The Copyright Clearance Center is a great resource in securing permission to use licensed material.

Distance Education Copyright Law Resources