Copyright
Law in the Educational Setting
With
Additional Consideration of Issues Related to Distance
Learning, Multimedia, and Web Development
This information is provided to assist members of the
UNC Charlotte community by summarizing basic copyright
laws, especially as they relate to distance learning,
multimedia, and web development, and is not intended
as legal advice. Please seek legal counsel to obtain
specific legal advice.
Dual Roles
of Multimedia & Web Developers
Copyright
User:
- You
have the responsibility to ensure that you have rights
to use all copyrighted works you incorporate into
your own materials.
Copyright
Owner:
- You
should ensure proper protection of your own rights
in the original works you create.
What
is Copyright Protection?
The
Copyright
Act provides a bundle of rights that protect the
owner’s expression of original ideas created
and fixed in a tangible medium.
The
Act does NOT protect the facts contained within
the work or the ideas themselves.
Duration
of your copyright protection if created after 1/1/78
= life of author + 70 years.
What
Are the Owner’s Rights?
Copyright
protects the owner’s exclusive rights to . . .
- reproduce
- prepare
derivative works
- distribute/sell
- display
- perform
- license
.
. . an original or derivative work created and fixed
in a tangible medium of expression.
What
Can Be Copyrighted?
- literary
works
- musical
works
- dramatic
works, including any accompanying music
- pantomimes
and choreographic works
- pictorial,
graphic, and sculptural works
- motion
pictures and other audiovisual works
- sound
recordings
- architectural
works
.
. . including web pages and multimedia works and their
incorporated materials, such as lecture notes, course
materials, outlines, papers, assignments, practice problems,
forms, etc.
Who Owns
the Copyright?
A
copyright owner is usually any author who contributes
original expression to a work.
Under
current University
policy, ownership of copyrighted works created by
University employees depends on the nature of the work
and the category of employment.
Faculty
and EPA non-faculty employees who create “Traditional
Works or Non-Directed Works” shall own the
work unless it is a “Traditional Work or Non-Directed
Work Involving Exceptional Use of University Resources,”
a “Directed Work,” a “Sponsored or
Externally Contracted Work,” or a “Work
for Hire” (as those terms are defined in the policy).
·
The University shall own Traditional Works
or Non-Directed Works Involving Exceptional Use of University
Resources.
·
The University shall own copyright in Directed
Works.
·
Unless the agreement expressly requires copyright ownership
by the University or conveyance of rights to a third
party, the creator of a Sponsored or Externally
Contracted Work shall own the work.
·
The University shall own Works for Hire
by SPA staff.
·
The University shall own copyrighted works produced
by the independent contractor.
·
Students retain ownership of copyright in their
Student Works.
See
UNC
Charlotte Policy Statement #113, Copyright Policy.
Obtaining
Copyright
Copyright
is automatic when the work is first written down, recorded,
painted, entered into a computer’s memory, or
fixed in any medium.
Advisable,
but not required, to affix prominent notice: copyright
symbol ("©,"
(c),"or "Copr."),
date of first publication, and owner’s name.
Registration
with the U.S.
Copyright Office is not required, but gives you
the ability to sue and claim statutory damages for infringement.
Liability
for Infringement
An
individual is generally liable for his or her own violation
of another’s copyright.
However,
the University may be held vicariously liable for infringement
by an employee or student if it has the right and ability
to supervise the infringing action and has an obvious
and direct financial interest in the exploitation of
the copyrighted material.
Infringement
may result in civil damages or even criminal penalties.
Proper
Use of Copyrighted Material
You
may use copyrighted material only under one of
the following circumstances:
Fair
Use - Allows certain use of copyrighted materials
without permission
Permission
- Requires written authorization from owner
License
- Requires entering into a license agreement with
the copyright holder
Assignment
- Transfer of intellectual property rights in a
particular work
Fair
Use, Permission, License, or Assignment?
I.
First, determine if your use of the material is "fair
use" by doing a "four-factor
analysis"
II.
If the use exceeds "fair use," secure the
copyright owner’s permission.
III.
If the work is digital information subject to a license,
enter into a license agreement under terms that allow your intended use
(e.g. multimedia or distance learning).
IV.
You may be able to obtain a transfer of all rights in
the work by way of an assignment.
I.
Fair Use Four Factor Analysis
You
may apply the "Fair
Use Guidelines for Educational Multimedia"
to determine whether your anticipated use might be "fair
use."
Four
factors must be weighed to determine if the "fair
use" exception applies:
1.
Purpose and character of the use - a use is more
likely to be interpreted as "fair use" if
it is:
- transformative
(significant value added)
- for
nonprofit educational purposes
NOTE:
Teaching, scholarship, or research may meet this first
factor, but other factors must still be considered!
2.
Nature of the copyrighted work - a use is more
likely to be interpreted as "fair use" if
the nature of the material is:
3.
Amount and substantiality of the portion used
- a use is more likely to be interpreted as "fair
use" if the amount of the material used is:
- a
small amount in relation to total work
- of
minimal qualitative substance
4.
Market effect of the use of the copyrighted work
- a use is more likely to be interpreted as "fair
use" if it:
- has
a minimal market effect
- is
not widely distributed (e.g., beyond classroom use,
or on the Internet)
II.
Permission
If
your intended use exceeds the rights allowed under the
"fair use" exception to the copyright laws,
you might obtain permission by:
1.
Identifying and contacting the owner, publisher, or
collective
rights organization; and
2.
Submitting a detailed written request, including:
- method(s)
of anticipated use (e.g., copy, quote, digital incorporation)
- purpose(s)
of anticipated use (e.g., educational multimedia,
web page)
- scope
of distribution or publication (e.g., to limited audience
vs. widely on the Internet)
(Sample Permission Letters)
III.
License
Digital
information is often subject to a license.
A
license gives a licensee limited permission to
access and use the information only under the terms
and conditions of the license agreement.
A
software license is often an "End-User License,"
which accompanies a computer system and restricts rights
to installation and use on that computer only.
You
may try to negotiate terms of a license to allow all
of your anticipated uses of the work by contacting the licensing
agent.
IV.
Assignment
An
assignment is a transfer of all or part of the
intellectual property rights in a particular work. [Sample
copyright assignment]
The
assignee becomes the owner of specified rights
in the work with or without limitations.
An
assignment of rights might be most appropriate in collaborative
works, in which there are a number of contributors.
Special
Considerations in Distance Learning
Under
the Copyright Act, instructional "display"
or "performance" in the nonprofit educational
context is permitted if it takes place or is transmitted
in the classroom:
Permissible
display: may include the simple showing of a photograph,
chart, table, or still from a motion picture
Permissible
performance: may recite, play, or show a musical
or literary work, but NOT dramatic
works, videos, audiovisual works, or motion pictures
If
the work is transmitted for distance learning
(outside the classroom), or is copied or distributed,
including posting it on the Internet, it is most likely
NOT "fair use," and you will have to
obtain appropriate permission(s).
Special
Considerations in Multimedia & Web Development
If
you incorporate graphics, film, video, music, photographs,
animation, text, data, maps, or software you may implicate
multiple copyrights and multiple owners or contributors--
- Be
sure to get permission or license from owners and
obtain written agreements or assignments from contributors.
Remember
to protect your own copyright--
- If
posted online, understand that you give an implied
license to allow minimal printing, copying, and downloading.
- Affix
notice (name, date, and ©) OR register with the U.S.
Copyright Office.
- Include
a prominent instruction not to copy, download, distribute,
etc., unless you do not care to protect your copyright.
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