ED435382 1999-00-00 Change in the Age

of Technology: A New Look at Licensing

and Copyright for Colleges and

Universities. ERIC Digest.

ERIC Development Team

www.eric.ed.gov

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Change in the Age of Technology: A New Look at Licensing and

Copyright for Colleges and Universities. ERIC Digest................. 2

AN EXAMINATION OF LICENSING ISSUES..............................2

LICENSES: OPPORTUNITY FOR COST CONTAINMENT AND

REVENUE DEVELOPMENT............................................ 2

THE BASICS OF THE U.S. COPYRIGHT LAW........................... 3

COMPLIANCE THROUGH THE CCC: A RESOURCE FOR

INSTITUTIONS AND INDIVIDUALS................................... 4

THE DIGITAL MILLENNIUM COPYRIGHT ACT.......................... 4

"A QUICK CHECKLIST FOR CAMPUS ACTIONS"...................... 4

ACTION FOR THE FUTURE................................................. 5

ERIC Identifier: ED435382

Publication Date: 1999-00-00

Author: Walther, James H.

Source: ERIC Clearinghouse on Higher Education Washington DC.| BBB32577 _

George Washington Univ. Washington DC. Graduate School of Education and Human

Development.

ED435382 1999-00-00 Change in the Age of Technology: A New Look at Licensing and

Copyright for Colleges and Universities. ERIC Digest.

Page 1 of 8
Change in the Age of Technology: A New Look

at Licensing and Copyright for Colleges and

Universities. ERIC Digest.

THIS DIGEST WAS CREATED BY ERIC, THE EDUCATIONAL RESOURCES

INFORMATION CENTER. FOR MORE INFORMATION ABOUT ERIC, CONTACT

ACCESS ERIC 1-800-LET-ERIC

INTRODUCTIONDevelopments due to the rapid expansion of technology have resulted

inrecent changes to U.S. copyright law. In an action that reflects thegrowing interest of

technology in our society and especially in highereducation, President Clinton signed

the Digital Millennium Copyright Actinto law in 1998. This law provides guidelines for

campuses to use increating copyright policy. This digest will offer a brief overview

oflicensing and copyright issues, as well as practical advice and resourcesfor further

examination.

AN EXAMINATION OF LICENSING ISSUES

Because of advances in technology, copyright issues are being examined under a new

light and university administrators, faculty and librarians are involved in licensing issues

now more than ever. Currently, several licenses are signed throughout institutions of

higher education. Software licenses are signed for staff, faculty, and student use

through departments of information systems or offices of technology. University libraries

are confronting substantial licensing issues, including the temporary licensing and

usage of CD-ROMs and publisher created databases, which have recently begun to

create requirements and/or definitions of authorized user requirements. Because most

licensed electronic information tools are not purchased outright, unlike purchasing a

book, libraries will need to examine the types of control the license granter has placed

on the usage of the information. In most licenses, the tenets of the copyright law do not

apply, since the user of an electronic source has the ability to directly disseminate or

download substantial portions of the publisher's intellectual property (Bielefield and

Cheeseman, 1999). Parallel to copyright law, the primary concern of the product creator

is the long-term need for the product and/or promotion of software or information in the

marketplace. To ensure the university is in complete compliance upon signing, the

signatory officials should receive full definitions of all terminology used in the license

such as "browsing," "transmitting," "displaying," "resident server," "downloading,"

"printing," etc. Licenses can either considerably enhance or limit resources and access

to technological tools depending on the language of the license.

LICENSES: OPPORTUNITY FOR COST

CONTAINMENT AND REVENUE

DEVELOPMENT

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Page 2 of 8 ED435382 1999-00-00 Change in the Age of Technology: A New Look at Licensing and

Copyright for Colleges and Universities. ERIC Digest.
Purchasing licenses for information products, rather than purchasing software and

databases outright, may be one way for a college or university to contain costs. An

institution may also need to create a user license for its own information prior to making

it available to others. With the growth and popularity of educational technology and

distance education, intellectual property has the potential to yield great revenue in the

future. A case study of the Florida Distance Learning Network, established by the

Florida Legislature in 1995, found revenue created by distance education initiatives

were allowed to be reinvested in programs as resulting income for the institution (Florida

State Legislature, 1995). Revenue is currently seen as the course and the curriculum,

but future revenue to the university may be seen through a variety of copyrighted or

licensed materials created by the university, such as the course syllabus, online

journals, assignments, faculty research reports, case study modules and examination

courseware. The reallocation of the revenue obtained from intellectual property create

several questions, including how the university will invest or distribute the revenue and

whether it will be funneled solely to the department of creation (AAUP, 1998). While the

large majority of higher education institutions use the Internet for disseminating

information, approximately only one fourth of public four-year colleges and, on average,

one third of public and private research universities have a policy on faculty developed

intellectual property available on the institutional website (Green, 1999). As higher

education continues to use the technology and the Internet, of great concern will be the

ability to protect individual and institutional intellectual property through licenses and the

basics of copyright law.

THE BASICS OF THE U.S. COPYRIGHT LAW

Today, the practice of photocopy reproduction is common on campuses in the U.S.

However, as shown in case law, all types of copying do not fall under a blanket of fair

use exceptions only because they occur on a college campus. The following offers the

development of a working knowledge of the copyright law under the provisions of "fair

use". This first step in learning about copyright law can be found in Section 107 of the

Copyright Act of 1976, which permits users to reproduce copyrighted material without

permission from the copyright owner as long as the user meets each of the four factors

that determine "fair use." The four factors are a test as to what constitutes fair use

reproduction and each factor is applied to each use of a copyrighted work. These

factors (or tests) include: 1) "The purpose and character of the use, including whether

such use is of a commercial nature or is for nonprofit educational purposes:" On

campus copying by individuals (faculty, staff and students) is usually within the nonprofit

definitions of usage, with the exception of situations analogous to the "Basic Books v.

Kinko's Graphics Corp.," where the court found profit in connection to the campus

related copying (Crews, 1995; Wagner 1991). 2)"The nature of the copyrighted work:"

Factual works, rather than fiction, are usually favored for the inclusion of fair use

copying, since the original, legislative intent of U.S. Copyright Law was to expand the

dissemination of ideas (Hemnes, Pyle, McTeague 1994; Wagner 1991). 3) "The amount

and substantiality of the portion copied in relation to the copyright work as a whole:"

Courts have not set up systems of page number counts or percentages of the original

works that determine substantiality. The determinate would be the amount of intellectual

ERIC Resource Center www.eric.ed.gov

ED435382 1999-00-00 Change in the Age of Technology: A New Look at Licensing and

Copyright for Colleges and Universities. ERIC Digest.

Page 3 of 8
content used (Hemnes, Pyle, and McTeague; 1994, Kasunic 1993; Wagner 1991). 4)

"The effect of the use upon the potential market for or value of the copyrighted work."

Market impact has been the most important element of the four factors in determining

fair use exceptions, as determined by the U.S. Supreme Court (Kasunic, 1993).

Guidance for university administrators and faculty members evaluating copying

activities is found in determining whether or not copyright holders will suffer financial

damage by the copying occurring in their institutions.

COMPLIANCE THROUGH THE CCC: A

RESOURCE FOR INSTITUTIONS AND

INDIVIDUALS

One mechanism designed to assist with the legal compliance of the copyright doctrine,

is the Copyright Clearance Center (CCC). Congress created the CCC to act as an

important intermediary authority designed to assist people and institutions within and

beyond the elements of fair use. As members of higher education may, at times, need

to reproduce documents beyond the exceptions of fair use, the CCC will assist in

obtaining the required permission for copying such works. This copying will also require

the copying body to pay royalties to the copyright holder, a process also managed by

the CCC (Copyright Clearance Center, 1999; Toma and Palm, 1999). Increased

institutional use of the CCC as an intermediary body may result in stronger relationships

between publishers and the higher education community as the fair use rights on

campuses will continue to be re-examined. This relationship will continue to be

enhanced because of the new copyright legislation.

THE DIGITAL MILLENNIUM COPYRIGHT ACT

The new act referred to as the Digital Millennium Copyright Act (DMCA) was signed into

law by President Clinton on October 28, 1998. This law required the input from

copyright owners and educators specifically on changing Section 110 of the copyright

law to facilitate the use of digital technology for distance education. This input created a

report, released from the U.S. Copyright Office, to Congress in May 1999. Of greatest

interest under this act is the definition of the on-line service provider (OSP). The

university, as a provider of the Internet and a means for copyright infringement, must

take action in response to a complaint from a copyright holder, since the university is

providing the means for infringement. The university will be required to eliminate access

to the infringing material, notify the violator posting the material and force the violator to

work with the copyright holder. Further information and clarification is available from the

American Library Association (Appendix 2). Since the DMCA and the May report are

new, administrators are cautioned to review the language of the law. EDUCAUSE has

provided the following information for institutions to review (Lide, 1999):

"A QUICK CHECKLIST FOR CAMPUS ACTIONS"

* Ensure appropriate campus expertise and resources to deal with copyright issues

www.eric.ed.gov ERIC Custom Transformations Team

Page 4 of 8 ED435382 1999-00-00 Change in the Age of Technology: A New Look at Licensing and

Copyright for Colleges and Universities. ERIC Digest.
* Determine who will be the campus agent to receive notification of copyright

infringement from the Copyright Office

* Develop or update campus policy and procedures on copyright

* Post the campus policy online

* Register the campus agent with the Copyright Office

* Educate the community about the law and promote compliance

ACTION FOR THE FUTURE

Institutions must examine the purposes for their copying. Again, fair use copying is

allowed at educational institutions for scholarly activities. However, some campuses

may continue to copy materials to use illegally in activities such as marketing, service

promotion or attracting enrollment (Burk, 1998). An analysis of the true purpose for the

copying must be mandated to ensure compliance with copyright law. With the growth

and adaptation of new technologies in the campus setting, proliferation of electronic

publishing, distance education, and access to information online, institutions have a

greater interest in clarifying their options and abilities under the fair use doctrine

(Gorman, 1998; Wolcott, 1998). Evolving technology and intellectual property law will

continue to present challenging situations for administrators, faculty, staff and students

in the higher education community. By developing, implementing and enforcing

appropriate policies and procedures, institutions of higher education can reap the

benefits of evolving technology and as well as comply with all legal requirements

RESOURCES

CASE LAW AND LEGISLATION, APPENDIX ONE

American Geophysical Union v. Texaco, 60 F.3d 913 (2nd Cir. 1994).

Basic Books v. Kinko's Graphics Corp. 758 F. Supp 1522 (S.D. N.Y. 1991).

ERIC Resource Center www.eric.ed.gov

ED435382 1999-00-00 Change in the Age of Technology: A New Look at Licensing and

Copyright for Colleges and Universities. ERIC Digest.

Page 5 of 8
The Digital Millennium Copyright Act of 1998, Pub. L. No. 105-304, 112 Stat. 2860 (Oct.

28, 1998).

Sony Corporation of America v. Universal City Studios, 464 U.S. 417 (1984).

INTERNET, APPENDIX TWO

American Library Association. "The Digital Millennium Copyright Act, Highlights of New

Copyright Provision Establishing Limitation of Liability for Online Service Providers,

Executive Summary". http://www.ala.org/washoff/osp.html

Berkely Digital Library SunSITE. "Copyright, Intellectual Property Rights and Licensing

Issues". http://sunsite.berkeley.edu/Copyright/

EDUCAUSE. "Current Issues: The Digital Millennium Copyright Act".

http://www.educause.edu/issues/dmca.html

Okerson, A. Association of American Universities and Association of Research Libraries

Intellectual Property Task Force. "Copyright Resources Online".

http://library.yale.edu:80/~okerson/copyproj.html

Stanford University Libraries. "Copyright and Fair Use."

http://fairuse.stanford.edu/multimed/

REFERENCES

American Association of University Professors. (1998). "Copyright issues in colleges

and universities". "Academe" 83 (3), 39-45. EJ 565 350.

Bielefield, A. and Cheeseman, L. (1999). "Interpreting and negotiating licensing

agreements: A Guidebook for the library, research and teaching professions". New

York: Neal-Schuman. ED 428 777.

Burk, D.L. (1998). "Ownership issues in online use of instructional materials".

"Cause/Effect" 21 (2), 19-27. EJ 572 074.

Copyright Clearing Center, Inc. (1999). "Promotion of distance education through digital

technologies. United States Copyright Office". Docket No. 98-12A, Written comments of

Copyright Clearance Center, Inc. ED 428 745.

Crews, K.D. (1995). "Copyright law and information policy planning: public rights of use

in the 1990s and beyond". "Journal of Government Information" 22 (2), 87-99. EJ 499

893.

www.eric.ed.gov ERIC Custom Transformations Team

Page 6 of 8 ED435382 1999-00-00 Change in the Age of Technology: A New Look at Licensing and

Copyright for Colleges and Universities. ERIC Digest.
Lide, C. (1999). "What colleges and universities need to know about the Digital

Millennium Copyright Act". "Cause/Effect" 22 (1),

http://www.educause.edu/ir/library/html/cem9913.html.

Gorman, R. A. (1998). "Intellectual property: the rights of faculty as creators and users".

"Academe" 84 (3), 14-18. EJ 565 345.

Green, K. C. (1999). "Campus computing 1998: the Ninth National Survey of Desktop

Computing and Information Technology in American Higher Education". Encino, CA:

Campus Computing. ED 428 645.

Florida State Legislature. (1995). "An Overview of intellectual property issues

associated with distance learning in Florida". Tallahassee, FL: author. ED 393 444.

Hemnes, T.M.S., A.H. Pyle, and L.M. McTeague. (1994). "A Guide to copyright issues".

Washington, DC: National Association of Colleges and University Attorneys. ED 374

762.

Kasunic, R. (1993). "Fair use and the educator's right to photocopy copyrighted material

for classroom use". "Journal of College and University Law" 19 (3), 271-93. EJ 474 595.

Toma, J.D, and R.L. Palm (1998). "The Academic administrator and the law: What

every dean and department chair needs to know". ASHE-ERIC Higher Education

Report, Vol. 26, No. 5. Washington, DC: The George Washington University, Graduate

School of Education and Human Development. ED 427 628.

U.S. Copyright Act, codified at 17 U.S.C. Section 101-1010. Wagner, E.N. (1991).

"Beware the custom-made anthology: Academic photocopying and "Basic Books v.

Kinko's Graphics". "West's Education Law Reporter" 68 (1), 1-20. EJ 431 184.

Wolcott, L.L. (1998). "Faculty issues pertaining to institutional support and reward

practices in distance education". [Paper presented at the Annual Meeting of the

American Research Association, 1998.] ED 419 530.

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Title: Change in the Age of Technology: A New Look at Licensing and Copyright for

Colleges and Universities. ERIC Digest.

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ED435382 1999-00-00 Change in the Age of Technology: A New Look at Licensing and

Copyright for Colleges and Universities. ERIC Digest.

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Document Type: Information Analyses---ERIC Information Analysis Products (IAPs)

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Available From: ERIC Clearinghouse on Higher Education, One Dupont Circle, N.W.,

Suite 630, Washington, DC 20036-1183. Tel: 800-773-3742 (Toll Free); Fax:

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