Copyright

Copyrights, a topic of considerable interest to faculty, staff, and students at institutions of higher learning, are intangible rights granted by the federal Copyright Act to authors or creators of original artistic or literary works that can be fixed in tangible media of expression such as hard copy, electronic files, videos, or audio recordings. In copyright law, originality is not difficult to establish; any modicum of originality suffices. For example, question items on examinations are original works of authorship for copyright law purposes. Important to the concept of “fixed,” the act defines “medium of expression” broadly to include expression made with the aid of a machine or device.

Provisions of the Copyright Act

Works prepared by students, staff, or faculty at colleges and universities on computers or word processors are not protected until they are saved as files on computers or disks or printed in hard copy. In higher educational settings, speeches and lectures given by instructors are not generally protected under copyright law, because they are not typically fixed in a tangible medium. Speakers’ notes, however, either in hard copy or saved on computers, are copyrightable as items in their own rights. Further, speeches and lectures themselves become protected by law if they are original and recorded verbatim under speakers’ authority. These recordings may be more regular today with the prevalence of online teaching and distance education.

Copyrightable works created on or after January 1, 1978, the effective date of the Copyright Act of 1976, are protected from the time they are fixed in tangible media of expression until 70 years after the death of their authors/creators. If the works have corporate authorship, copyrights last 95 years from publication or 120 years from creation, whichever is shorter. The duration of copyright for works created before 1978 is dependent on several factors (Gasaway, 2003). Once copyright terms expire, works go into the public domain, and advance permission to use them is no longer necessary.

The Copyright Act protects literary, musical, dramatic, choreographic, pictorial, sculptural, and architectural works as well as motion pictures and sound recordings. Each copyrightable work has several “copyrights,” including exclusive rights to make copies of the works, distribute them, and perform or display the works publicly.

The subject matter of copyright includes compilations or collective works and “derivative works.” Copyrights in compilations or derivative works extend only to the materials contributed by the authors of such works as distinguished from the preexisting material employed in the works. Examples of collective works include periodical issues, anthologies, and encyclopedias in which each contribution is a separate and independent work compiled into a collective whole. Derivative works are based on one or more preexisting works such as translations, musical arrangements, dramatizations, fictionalizations, motion picture versions, sound recordings, art reproductions, abridgments, condensations, or any other forms in which works may be recast, transformed, or adapted. Each author or creator may transfer one or more of these copyrights to others. For example, authors who wish their books to be used in classes at colleges and universities sell the copying and distribution rights to publishers in return for royalties gained from sales.

Limits on Exclusive Rights

The Copyright Act imposes limits on exclusive rights, three of which apply in educational settings. The act provides criteria for fair use, provides criteria according to which libraries and archives may make copies of copyrighted works, and addresses the use of copyrighted material for classroom instruction. In addition, the act addresses works for hire created by employees of educational institutions.

Fair Use

According to Section 107 of the Copyright Act, fair use of copyrighted works “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” Fair use balances the rights of the owners and creators of copyrighted works with the needs of those who use such works. If uses are fair use, then users need not obtain consent of the owners. Determining whether uses are fair requires the application of four factors, articulated explicitly in the act: the purpose and character of a use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work.

The fair use doctrine is often applied successfully in educational settings, because most educational uses are not commercial. Still, some guidelines are necessary. Pursuant to a report of the Ad Hoc Committee of Educational Institutions and Organizations on the Copyright Law Revision of 1976, instructors may make single copies of the following items for use in teaching or preparation to teach classes: a chapter from a book; an article from a newspaper or periodical; a short story, essay, or poem; and a chart, diagram, graph, or picture from a book, periodical, or newspaper.

The fact that students are the ultimate users of the copyrighted works notwithstanding does not automatically dictate findings of fair use. One of the biggest controversies arises in cases of course packet copies of multiple works for students to purchase. The courts largely agree that commercial copying services must obtain the copyright holders’ permission before including copies of protected works in compiled course packets.

On the nature of the copyrighted works, courts generally look at whether such works are published or unpublished and whether they are fiction or fantasy versus nonfiction, factual, or scientific in nature. The use of fantasy and fiction works leans toward unfair more often than the use of nonfiction, factual, or scientific works. This noted, the determination of fair use in cases involving copyrighted informational works must also consider the controversial line between ideas that are not protected and their expression, which is protected. In nonfiction writing, scientific writing, legal writing, history, and biography, all of which are very common in higher education, multiple authors may interpret the same sets of facts and often engage similar treatment of the topics. This does not dictate that later works are infringements of all of those efforts that preceded them. It is important, then, to recognize that because the expression of facts and ideas is protected, authors retain the first right of publication of this expression.

In considering the third factor for fair use, the more material others take from copyrighted works, the more likely the courts are to treat uses as unfair. However, the measure of the material taken is made both quantitatively and qualitatively. For instance, the same number of words taken from a novel as from a short poem could certainly give way to different fair use outcome. On the quantitative end of the principle, if the quantity used is high, the fourth fair use factor, effect on the market, may play a role and dictate a finding of unfair use. On the qualitative end of the principle, the key inquiry is whether the “heart” of the original work was taken.

For the final fair use factor, the effect of the allegedly infringing use on the market for the original work, the copyright holder must demonstrate the existence of a connection between the infringement and loss of revenue, not only for the current market, but also for the future. In response, alleged infringers must show that the damages would have occurred even without this use. Important to the inquiry is the effect not only on the market for the original work, but also the markets for derivative works. With respect to academic activities, fair use is generally recognized so long as uses do not adversely affect the copyright holders’ markets.

Libraries and Archives

The second limitation on exclusive rights provides that it is not an infringement of copyright for staff members in libraries to reproduce one copy or phonorecord of works or to distribute the copies or phonorecords if these activities take place without intentional commercial advantage, if libraries are open to the public, and if the reproduction includes a notice of copyright. This provision allows libraries and archives to replace lost, stolen, damaged, or deteriorating works and to preserve unpublished works.

Classroom Use

The third limitation on exclusive rights addresses classroom use of copyrighted materials. Under Section 110(1) of the Copyright Act, teachers and students in nonprofit educational institutions may perform or display copyrighted works “in the course of face-to-face teaching activities.” Section 110(2), which codifies the Technology, Education, and Copyright Harmonization Act of 2002, permits essentially these same activities in distance education or online environments, but with five additional requirements:

  1. Performances or displays must be at the direction of or under the supervision of instructors.
  2. Such uses must be integral parts of class session offered as part of the “systematic mediated instructional activities” of educational institution.
  3. Performances or displays must be directly related and of material assistance to the teaching content of the transmissions.
  4. Transmissions must be available only to students enrolled in the courses and those employed to teach or assist in teaching the classes.
  5. Institutions must implement policies and practices to educate instructional staff and students about copyright law while applying technological measures that prevent the retention and accessibility of copyrighted works for longer than the class sessions.

Works for Hire

Initially, ownership in works that are copyrighted vests in their authors or creators. Educational institutions may deal with “works for hire,” which are works created by employees within the scope of their employment. In such cases, employers become the copyright holders. At the same time, there is a solid legal argument for a “teacher exception” to the work-for-hire doctrine (Daniel & Pauken, 1999). Under this exception, it can be argued that college and university administrative officials do not directly supervise their faculty in the preparation of academic books and articles and teaching materials.

Copyright Infringement

There are three types of infringement: direct, contributory, and vicarious. Direct infringements are those by persons or services that actually engage in the infringement of protected copyrights. Contributory infringement occurs where one “with the knowledge of the infringing activity, induces, causes, or materially contributes to the infringing conduct of another” even though she or he has “not committed or participated in the infringing acts.” In order to be liable, alleged infringers must have actual or constructive knowledge of, and must have participated in, the infringing conduct (A & M Records, Inc. v. Napster, Inc., 2001; In re Aimster, 2003). Universities must be particularly careful here, because students allegedly commonly engage in unlawful downloading and sharing of copyrighted works online. University officials must enact and enforce policies that remove infringing content and conduct from their campuses; these policies must also contain provisions advocating education for students, staff, and faculty on copyright law. Finally, vicarious infringement may be imposed on persons or entities that have the right and ability to supervise infringing activities and have direct financial interests in the exploitations of the copyrights, even though they may not have the intent to infringe or the knowledge of the infringements.

The Supreme Court’s recent unanimous decision in Metro-Goldwyn-Mayer Studios v. Grokster (2005) may be instructive for members of college and university communities. In Grokster, the Court held that software distributors could be liable for indirect copyright infringement when they market software with the intention and the knowledge that computer users will infringe copyrights by downloading and sharing protected works. Grokster is not directly applicable to higher educational settings, because institutions are rarely software distributors. Even so, the fact that evidence of a defendant’s knowledge in Grokster and encouragement of infringement can lead to contributory or vicarious liability under copyright law ought to convince officials to be vigilant in their policy formation and enforcement when they allow faculty, staff, and students to use their computer systems.

Remedies

Remedies available to successful copyright infringement claims include injunctive relief, impoundment or disposal of infringing works, monetary damages including actual damages and lost profits, statutory damages as provided by the Copyright Act and decided by the courts, and attorney fees. Copyright infringement need not be intentional for copyright holders to succeed in their claims.

Patrick D. Pauken

See also Digital Millennium Copyright Act; intellectual property

Further Readings

  • Daniel, P. T. K., & Pauken, P. D. (1999). The impact of the electronic media on instructor creativity and institutional ownership within copyright law. Education Law Reporter, 132, 1–43.
  • Daniel, P. T. K., & Pauken, P. D. (2005). Intellectual property. In J. Beckham & D. Dagley (Eds.), Contemporary issues in higher education law (pp. 347–393). Dayton, OH: Education Law Association.
  • Daniel, P. T. K., & Pauken, P. D. (2008). Copyright laws in the age of technology and their applicability to the K–12 environment. In K. E. Lane, J. F. Mead, M. A. Gooden, S. Eckes, & P. D. Pauken (Eds.), The principal’s legal handbook (4th ed., pp. 507–519). Dayton, OH: Education Law Association. 
  • Gasaway, L. (2003). When U S. works pass into the public domain. Retrieved June 9, 2009, from http:// www.unc.edu/~unclng/public-d.htm 
  • National Association of College Stores and The Association of American Publishers. (1991). Questions and answers on copyright for the campus community. Oberlin, OH: National Association of College Stores.
  • Sperry, D. J., Daniel, P. T. K., Huefner, D. S., & Gee, E. G. (1998). Education law and the public schools: A compendium (pp. 191–203). Norwood, MA: Christopher-Gordon. 

Legal Citations

  • A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001).
  • The Copyright Act, 17 U.S.C. § 101 et seq.
  • Copyright Law Revision, H.R. Rep. No. 94-1476 (1976), at 65–74.
  • In re Aimster, 334 F.3d 643 (7th Cir. 2003). 
  • Metro-Goldwyn-Mayer Studios v. Grokster, 545 U.S. 913 (2005). 
  • Technology, Education, and Copyright Harmonization Act (TEACH Act), Pub. L. No. 107–273 (2002).