Copyright Issues in Digital Distance Education

1. Copyright Infringement in the context of Digital Distance Education

a. What is infringement?

Infringement occurs when someone other than the copyright holder exercises one of the five rights reserved to copyright holders, without permission from the copyright holder or without that use being exempted under the law. Those five rights include:

• the right to reproduce the work;
• the right to prepare derivative works;
• the right to distribute copies by sale;
• the right the publicly perform the work;
• and the right to publicly display the work.

b. What exemptions exist?

Exemptions include those created under Sections 107, 110(1) and 110(2) of Chapter 1 of Title 17 of the U.S. Code. Section 110(1) deals with uses made in the course of face-to-face teaching done in a classroom. Given these restrictions, this section is not generally pertinent to digital distance education. Certainly, it is of great importance in traditional classroom-based teaching. Section 110(2) provides exemptions for the performance of a non-dramatic literary or musical work or the display of a work by a transmission to be received in a classroom. Given that the categories of works covered by this exemption are limited, and that the transmission must be received in a classroom, the Section 110(2) exemption is also of limited value in the context of distance digital education.

Section 107 deals with the Fair Use exemption. Whether a given use is a "fair use" is determined in the context of a four factor analysis: 1) purpose and character of the use, 2) nature of the copyrighted work, 3) amount and substantiality of the portion of the copyrighted work used, and 4) effect of the use on the potential market for the work. Section 107 exemptions are the most pertinent exemptions in the context of distance digital education. The TBR Office of the General Counsel is available to assist faculty members of TBR Institutions who want an opinion regarding whether a given use of copyrighted material in a digital distance education course is a "fair use".

Legislation has been proposed in the U.S. Congress that would expand the exemptions available to educational institutions providing digital distance education services.

c. Obtaining permission

Faculty members who wish to incorporate copyrighted material into their web-based instructional materials and who do not believe the use is exempted should obtain permission from the copyright holder for use of the material. Two approaches to obtaining permission are discussed below. Depending on your specific circumstances, other approaches may be appropriate. TBR faculty encountering difficulties with these two approaches should contact the TBR Office of the General Counsel.

The Copyright Clearance Center, http://www.copyright.com, is authorized by numerous publishers and other copyright holders to grant permission for the use of copyright and to collect fees for that use.

If the copyright holder is known and is willing to deal directly with requests for granting permission for use of copyright, a phone call to the holder followed by written correspondence may be an appropriate approach. The following letter illustrates the information which should be included in the permission letter: Sample Copyright Permission Letter.

2. Copyright Ownership

a. TBR Policy Guideline

TBR Policy Guideline A-075 lays out the general principles under which ownership of copyright associated with digital distance education materials shall be evaluated. The following link will take you to the Guideline: Guideline A-075.

b. Template contracts

Corresponding to the various ownership outcomes detailed in the foregoing flowchart and scenarios, the TBR Office of the General Counsel has developed standard contracts. Those template contracts are to be executed between persons developing on-line materials to be used by the TBR and their TBR Institution.

Employee Work for Hire Agreement

Copyright License Agreement

Partial Assignment of Copyright Ownership Agreement

Independent Contractor Work Made for Hire Agreement

Joint Ownership of Copyright Agreement