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##  Copyright Concerns in the Age of Distance Education. ERIC Digest.            

COPYRIGHT CONCERNS IN THE AGE OF DISTANCE EDUCATION.
In the United             States, copyright owners retain exclusive rights to their creative              works.  They alone have the legal right to reproduce, distribute,               publicly  perform, or publicly display their works or to construct              derivative works.  The recently enacted Digital Millennium Copyright            Act (DMCA) has created several complex questions related to distance            education for which higher education institutions must quickly                  search for procedural answers.  The questions framed below challenge            basic knowledge of current copyright law and typify today's concerns            in institutions of higher education; copyright owners referred to in            these questions and answers are either an organization or                       individuals in an institution. 
A professor in our program usually             shows movies as part of her instruction.  This semester, we have                transferred the course to a distance education offering.  Will the              movies the instructor plays be part of the classroom exemption of               the copyright law? 
Do not play the movies!  Performance and                   display exceptions to the copyright law, Section 110(1), are far                from the same in Section 110 (2), which points out that                         transmissions, displays or performances of copyrighted materials                are "more restrictive than in the classroom exemption" (Gasaway,                1999). Institutions are to work within certain guidelines when using            copyrighted works in distance education. These institutional                    guidelines are: 
1)the works must be part of the systemic                      instructional activities of a nonprofit education institution (or               government body); 
2) the works must be directly related and of                material assistance to the teaching content;  and 
3)transmission              must be made primarily for reception in the classroom or other place            normally devoted to instruction. 
Copyright restrictions include a             place or reception requirement; Gasaway (1999b) points out that in              distance education, instruction is not classroom to classroom, but              takes place in homes, dorm rooms and other places.  Such classroom              to non-classroom delivery places institutions at great risk when                attempting to use copyrighted materials in instruction without                  permission. Diotalevi (2000) concurs with this analysis by stating              that reading a text to a class in a distance education setting is               allowed under the DMCA, "but showing the movie of the same name is              quite another matter.  When passed in 1976, Section 110(2) {of the              original Copyright Act} involved only television technology."                   Generally, distance education should not use performances of any                work.  The instructor should perform the material, e.g., role-                  playing, and should not rely upon educational tools, such as movies,            musical performances and videos, to illustrate a point. 
I am a new            Associate Professor and wonder if I have any right to my                        intellectual property.  I have collaborated with two other                      professors on a distance education course.  Who holds the                       intellectual property rights to the course and its                              materials? 
Distance education may create the opportunity for                  faculty and other members of the campus community to work together              on producing courses. While such a team effort may be required for              the successful outcome of the course, the contributors should                   clarify their intellectual property rights before working in such               teams.  The DMCA does allow such "joint owners (to) individually                exploit the work" (Salomon, 1995).  Burk (1997) points out that                 with "works made for hire, the statute provides that the employer of            the individual who creates the work is considered the author."                  However,  policy makers should keep the following in                            mind: 
1)Copyright ownership policies should be written to allow               the faculty member to reproduce his or her own work without                     requesting permission from the institution. 
2)Any work-for-hire               tenets should not be strongly enforced or implied, to the extent                that the institutions would have the authority to determine,                    suggest, or decide where the work was published and how usage                   licenses of the material would be coordinated and managed. 
3)In               distance education, it is in the best interest of the institution               and of the collaborating members to define each participating                   member's ownership rights. All faculty and staff collaborating on               distance education projects should know who owns the final product,             collaboratively or individually. 
Where software creation is                   involved, Weiss (1996) states that the actual software program used             to deliver distance education may be both patentable and                        copyrightable.  The faculty members and collaborators should not                attempt to determine their intellectual property rights alone.                  Campus counsel should assist in clarifying the policies to faculty              and staff.  Whenever applicable, joint intellectual property rights             should be given to the individuals involved. 
I am an Associate                Dean.  The Vice President of Academic Affairs and our Dean are on a             campus committee to attempt to redesign our intellectual property               policies on campus.  Many faculty believe the  new online courseware            they are developing for distance education should fall under the                patent section of our intellectual property policy, whereas we                  thought these materials would be of copyright interest. What                    intellectual property right should individuals pursue when creating             distance education materials or tools? 
Online courses, syllabi and            course materials used in distance education should be considered                parallel to materials created for face-to-face instruction and,                 therefore, should be integrated into part of the copyright policy on            campuses.  Alpern (1999) delineates the types of intellectual                   property prevalent today in the United States.  These are: 
1)                 Patents, which entail three types (utility, design and plant), each             of which carries individual design and creation issues. Generally,              under federal patent law, the patents must be created by the holder,            physically manufactured or invented or discovered. 
2) Trademarks              are a "distinctive word, phrase, symbol or other recognizable device            that identifies a product or service." 
3) Trade secrets                       are "information or compilation of information used or useful...                kept secret." 
4)  Copyright is a protection of the "expression of             an idea as fixed in some tangible medium." 
Each of these has                  differing tests and clarifications, but for the question posed,                 distance education incorporates both courseware (software creation),            which would be a patent and possibly a trademark property, and                  online course material (syllabi, lectures, articles and                         presentations), which would be covered by copyright protection. In              most cases, faculty would be adding course content, such as a                   syllabus, into pre-existing software packages, such as Prometheus or            Blackboard.  Because they are contributing course materials to                  software programs not created by themselves, faculty members are                given the copyright for these materials, not patent rights. The                 typical copyright protection for these creations would be much like             the protections faculty are given when writing journal articles and             textbooks (Guernsey & Young, 1998). 
An institution may wish to                clarify how institutional policies are communicated.  The American              Association of University Professors (1999) found that some                     institutions assume ownership of all faculty created materials,                 although the DMCA requires specific application and transfer of such            rights by signature.  Most institutions do not actually obtain                  faculty signature, placing themselves at risk of losing intellectual            property. Distance education settings will force faculty to clarify             whether their publisher agreements and employment contracts                     determine the placement of their intellectual property                          rights (McIsaac & Rowe, 1997). 
I am a professor and I place a                 considerable amount of materials on reserve at the library for my               face-to-face instruction sections.  In the distance setting, will I             be able to rely upon distributing digital copies of copyrighted                 works? 
The DMCA offers a new chapter (Chapter 12) to Title 17 of              the U.S. Code, which stipulates that nonprofit educational                      institutions have the right to copy and share digital documents for             purposes of archiving and preservation, in accordance with Section              108 (copying for the purposes of interlibrary loan).  Such non-print            works can be reproduced for the purposes of distance education, but             Baird & Hallett (1999) direct faculty to the Fair Use Guidelines                created by the Committee for Fair Use Guidelines for Educational                Multimedia.  These guidelines are: 
1) "Educators and students may             copy portions of copyrighted materials to be incorporated in their              productions of classroom projects or classroom instruction; 
2) the            portion of materials should not exceed 10 percent of the total                  work; 
3) the {section} can be utilized for educational purposes               for up to two years; 
4) the {section} is limited to the number of             copies, namely, no more than three copies should be made--two for               class use and one for preservation; 
5) credit should be given to              the copyright owners." 
The DMCA specifically addresses "mediated              instruction" and digital reserves of copyrighted works as possibly              taking the market away from copyrighted works and substituting sales            by providing digitally produced copies of such works.  Providing                full versions of the works should be cautioned against and works                should be used "in a context where the instructor is illustrating a             point" (Crews, 1999).  Crews warns not to provide a document if                 unable to relate its use to learning                                            objectives. CONCLUSIONSHow should faculty and administration              comply with the admitted complexities inherent in the copyright law?            Some suggestions include: 
1) Build solid and diverse relationships            across academic units to assist in intellectual property                        discussions. 
2) Develop a cross campus committee that reviews                 intellectual property issues and communicates guidelines. 
3)                  Publish intellectual property policies in campus documents, on                  relevant parts of the campus Web site, and in other locations                   visible to the campus community. 
4) Develop institutional                     expertise in intellectual property issues to foster collegiality and            distribute appropriate training. 
5) Assist the growth of the                  higher education community by supporting distance education while               maintaining academic standards and complying with intellectual                  property laws. 
6) Use guidelines, policies, and contracts to                  balance the interests of intellectual property creators and the                 institution. REFERENCESAlpern, A. (1999). 101 Questions about             copyright law.  Mineola, NY: Dover. 
American Association of                   University Professors (AAUP). (1999). Distance education and                    intellectual property. Academe 85 (3), 41-45. EJ 588 090. 
Baird,              D. & Hallett, K.S. (1999). Copyright in the academic environment: An            introduction. http://www.mtsu.edu/~itconf/proceed99/Baird.html  ED              436 120. 
Burk, D.L. (1997). Ownership of electronic course                    materials in higher education. Cause/Effect 20 (3), 13-18. EJ 554               125. 
Crews, K.D. (1999). Summary of U.S. Copyright Office Report              on Distance Education. Indianapolis, IN: Copyright Management                   Center, Indiana University-Purdue University. 
Diotalevi,                      R.N. (2000). Copyright dot com: The digital millennium in copyright,            http://www.westga.edu/~distance/diotalevi32.html 
Gasaway,                     L.N. (2000). The year in copyright. Against the Grain 12 (1), 1,                16-18. 
Gasaway, L.N. (1999b). Distance learning and copyright: Is             a solution in sight? Cause/Effect 22 (1), 6-8, 25.  EJ 595                      285. 
Gasaway, L.N. (1999).  When works pass into the public                   domain. http://www.unc.edu/~unclng/public-d.htm 
Guernsey, L. &                Young, J.R. (1998). Who owns on-line courses?: Professors and                   universities anticipate disputes over the earnings from distance                learning. The Chronicle of Higher Education 44 (39), A21-A23.  EJ               567 567. 
McIsaac, M.S. & Rowe, J. (1997). Ownership and access:               Copyright and intellectual property in the on-line environment. New             Directions for Community Colleges (99), 83-92. EJ 554                           315. 
Salomon, K.D. (1995). A primer on distance learning and                  intellectual property issues.  West's Education Law Reporter 96,                305-313. 
Weiss, B.D. (1996). Technology transfer from the Ivory               Tower to the marketplace. Educom Review 31 (5), 39-45.  EJ 532                  936. 
Additional Internet Resources on Copyright and Distance                  Education Resources at the Distance Education Learning Center at the            University of Missouri-Columbia:                                                http://dldc-courses.ext.missouri.edu/dldcwww/resources/copyright.htm            http://dldc-courses.ext.missouri.edu/dldcwww/resources/organizations            .htm 
Resources compiled by  Kay E. Vandergrift, Professor,                    Associate Dean and Director of Distance Education at the School of              Communication, Information and Library Studies at Rutgers                       University, New Brunswick, New Jersey:                                          http://www.scils.rutgers.edu/special/kay/copyrightissues.html 
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This publication was                    partially prepared with funding from the Office of Educational                  Research and Improvement, U.S. Department of Education, under                   contract no. RR-93-00-0036. The opinions expressed here do not                  necessarily reflect the positions or policies of OERI or the                    department. Permission is granted to copy and distribute this                   ERIC-HE Digest.                                                              **Title:** Copyright Concerns in the Age of Distance Education. ERIC Digest.            **Note:** Prepared in cooperation with Jossey-Bass Publishers.                         **Document Type:** Information Analyses---ERIC Information Analysis Products (IAPs) (071); Information Analyses---ERIC Digests (Selected) in Full Text (073); **Target Audience:** Practitioners, Teachers                                                      **Available From:** ERIC Clearinghouse on Higher Education, One Dupont Circle, Suite                630, Washington, DC 20036-1183. Tel: 800-956-7739 (Toll Free).               **Descriptors:**  Copyrights, Curriculum Development,  Distance Education, Fair                  Use (Copyrights), Films, Higher Education,  Intellectual Property,              Patents                                                                      **Identifiers:**  Digital Millennium Copyright Act 1998, ERIC Digests                         
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