I recently took a SLOAN-C course on copyright compliance taught by Linda Enghagen, J.D. She presented copyright decisions for instructors as two main sets of considerations. First, she presents rules regarding use of copyrighted material. These are formulaic in that they are fairly straight forward for determining the legal boundaries of using material. Second she presents considerations based on fair use laws, which are not formulaic. Legal decisions for fair use are based on weighing the evidence across four guidelines and making a judgment about whether copyright has been violated. She also stated an important reminder to instructors that although we have good intentions for helping people and society, such intentions or noble causes are not a legal defense; the law is the law. As usual, ignorance is not an excuse either, as Enghagen said, professors (people who have to be intelligent) may have a tough time convincing a judge that they were not smart enough to know the law.
Enghagen pointed out that copyright protects ideas after they are expressed in tangible form regardless of whether they’ve been registered with the government. Thus, if somebody else made it, you should consider it to be copyrighted unless it is a specific type of unprotected material.
Enghagen did a good job showing how Fair Use and the TEACH act can allow copyrighted material to be used without permission or pay IF it is used for a specific purpose and in a manner consistent with those indicated by the Fair Use or TEACH act. There is a fair amount of information available about Fair Use, so I won’t say more about that here. The TEACH (Technology, Education, and Copyright Harmonization) Act was established in 2002 to bring copyright law in distance education more in line with copyright law for classroom education. It only applies to distance education. It is worth becoming familiar (or refreshing yourself) with the specifics of Fair Use and the TEACH act because they may permit you to do more than you thought you were allowed to do, but they may also have some obligations that you might not have considered. For example, institutions implementing the TEACH act should provide a “notice to students that materials used in connection with the course may be subject to copyright violation.” I will probably start putting this in my syllabi. I also learned from discussions in the course that the copyrighted images I use from the Internet in my Power Point presentations should be covered by Fair Use, but need to cite where I got them.
I also learned from the course discussions some considerations about the type of materials to which you should/shouldn’t link from your course site. “Deep linking” is a concern here, which may be trademark infringement if it confuses users about which site they are at. Deep linking can also be illegal if it allows users to bypass a site’s advertisements or other ways of earning revenue.
The workshop gave me some new knowledge, refreshed my understanding, and gave me some new issues to think about. As I increasingly distribute material via new channels, it will be good for me to stay current in these issues so that I don’t cross lines that I shouldn’t and that I take better advantage of the freedoms I do have.