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Fair Use Rights and Defenses for Students in Online Learning Environments ©

By Rosalie Lopez, B.S.B.A., M.B.A., J.D. Attorney at Law

The following is a presentation given by Rosalie Lopez at the recent Southwest Regional EDUCAUSE Conference in Dallas. Rosalie has graciously agreed to allow us to reprint it here. She is a 1982 graduate of UNT.

Abstract

To support their students while protecting their institutions, instructors must understand the parameters of what is permitted use versus what is infringement with respect to copyrighted material accessible from online venues. Fair use rights and defenses under the Copyright Act, Digital Millennium Copyright Act, and other laws are discussed.

Introduction

Instructors play a vital role in encouraging original work from their students. Students need guidance in the area of copyright laws. Regrettably, members of the academic community often are uninformed or misinformed about the parameters of using others’ work. When instructors do not require the strictest standards and oversight on student research and work, students unwittingly make mistakes or commit wrongdoing in violation of the various laws protecting others’ original works of authorship. Violation of copyright laws leaves the student, the instructor, and their institutions (profit and non-profit) vulnerable to legal attack. When an allegation of infringement arises, it is important to conduct an infringement analysis or audit to determine the extent of exposure that might exist. It is also important to carefully investigate the merits of the infringement that is alleged. This paper focuses on fair use rights and defenses for students in online learning environments.

Online Environments

The Internet has paved the way for easy access to information. It has, for the most part, made searching for information possible at the keyboard and with a few clicks of a mouse. It is hard to imagine life without the extensive access individuals enjoy to just about anything and everything on the Internet. This online learning environment with relatively few barriers, frankly speaking, has opened up the arena of copyright litigation unlike ever before. If online learning environments are part of the teaching methodology utilized that a student is required to participate in to accomplish his or her learning, then it is imperative that instructors be as fully informed as possible about copyright laws. It is a foregone conclusion that if the laws were made much easier to understand, there would be less worry and stress upon instructors in providing their students with important guidance to obtaining and using education information obtained from the Internet.  

What is Considered a Copyrighted Work?

Under the Copyright Act of the United States, the subject matter of a copyrighted work is afforded protection as defined in Sec. 102 as follows:

(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

(1) literary works;

(2) musical works, including any accompanying words;

(3) dramatic works, including any accompanying music;

(4) pantomimes and choreographic works;

(5) pictorial, graphic, and sculptural works;

(6) motion pictures and other audiovisual works;

(7) sound recordings; and

(8) architectural works.

(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

Copyright protection vests immediately at its creation in a fixed form and belongs to the individual or authors who created the work sought to be protected. Although a copyright notice is no longer mandatory for works published after March 1, 1989, notice to the public and proper registration are critical for those seeking full protection under the law.

The typical copyright notices for written publications, including information on the Internet sought to be protected are generally as follows:

© - the universal symbol for copyright notice with the name of the copyright owner and the first year of publication, i.e. © Rosalie Lopez, 2003;

Copyright – the word itself together with the name of the copyright owner and the first year of publication, i.e. Copyright 2003, Rosalie Lopez; and

Copr. – the abbreviation for copyright with the name of the copyright owner and the first year of publication, i.e. Copr. 2003, Rosalie Lopez.

Remember, these formal copyright notices are no longer required for works published after March 1, 1989, but most who publish their work in any venue value notices that are visible and recognizable. Registrations are made with the U. S. Copyright Office in Washington, D.C.

The rightful owner of a copyrighted work under the Copyright Act has the exclusive rights to do and to authorize any of the following under Sec. 106:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

A phonorecord is defined in law as “a material object in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “phonorecords” includes the material object in which the sounds are first fixed,” i.e. cassette tapes, CDs, etc.

Logically, if a student or the organization is not the copyright owner then it follows they do not have the rights enumerated above.

The Digital Millennium Copyright Act

The Digital Millennium Copyright Act was enacted in 1998 to update copyright law in matters dealing with the electronic/digital environment. Its principle features focus on limitations on infringement liability for service providers and prohibitions on circumvention of technological protection measures. Online education environments are greatly affected by the act provisions. Educational institutions are generally considered as service providers for purposes of the act.

Students can become rather creative when designing websites using educational institution equipment, software, and access to the Internet. Service providers receive certain protections from liability and “notice and takedown” procedures must be strictly and timely followed. Any copyrighted works that are infringed upon by a student using educational institution resources is subject to the act.

If a copyright owner discovers that their copyrighted work is up on a website supported in some way by resources of an educational institution, the copyright owner must file a notification of alleged infringement under penalty of perjury and in accordance with the statutory requirements for notification under the act. Upon receipt of notification, the service provider must swiftly remove or block access to the material identified in the notification or face loss of protection under the act. If the service provider complies, the service provider is then exempt from monetary liability. The act contains special provisions for non-profit institutions for certain acts on the part of instructors and graduate students and considers them “a person other than the provider” and affords protection to the educational institution under the following conditions:

(a)                The faculty member or graduate student’s infringing activities do not involve providing access to course materials that were required or recommended during the past three years.

(b)                The institution has not received more than two notifications over the past three years that the faculty member or graduate student was infringing.

(c)                 The institution provides all of its users with informational materials describing and promoting compliance with copyright law.

There are many facets to the act that cannot be fully discussed in this forum. Suffice it to say, instructors should get with their organizations and their legal counsel to become familiar with the complex intricacies of the act. 

What is Infringement?

In the absence of a recognized exception or defense afforded copyright protection, any person or organization found to have infringed upon a copyright owner’s work may invite an action for copyright infringement. Penalties to the individual, including the organization, could be substantial not to mention the litigation expenses and attorney fees that will have accrued.

The infringement of copyright law is found at Title 17, Chapter 5, Sec. 501 of the United States Code. Specifically, it says:

Sec. 501. - Infringement of copyright

 (a) Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 121 or of the author as provided in section 106A(a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright or right of the author, as the case may be. For purposes of this chapter (other than section 506), any reference to copyright shall be deemed to include the rights conferred by section 106A(a). As used in this subsection, the term ''anyone'' includes any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity. Any State, and any such instrumentality, officer, or employee, shall be subject to the provisions of this title in the same manner and to the same extent as any nongovernmental entity.  

(b) The legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411, to institute an action for any infringement of that particular right committed while he or she is the owner of it. The court may require such owner to serve written notice of the action with a copy of the complaint upon any person shown, by the records of the Copyright Office or otherwise, to have or claim an interest in the copyright, and shall require that such notice be served upon any person whose interest is likely to be affected by a decision in the case. The court may require the joinder, and shall permit the intervention, of any person having or claiming an interest in the copyright.

(c) For any secondary transmission by a cable system that embodies a performance or a display of a work which is actionable as an act of infringement under subsection (c) of section 111, a television broadcast station holding a copyright or other license to transmit or perform the same version of that work shall, for purposes of subsection (b) of this section, be treated as a legal or beneficial owner if such secondary transmission occurs within the local service area of that television station.  

(d) For any secondary transmission by a cable system that is actionable as an act of infringement pursuant to section 111(c)(3), the following shall also have standing to sue: 

                (i) the primary transmitter whose transmission has been altered by the cable system; and

                (ii) any broadcast station within whose local service area the secondary transmission occurs.

(e) With respect to any secondary transmission that is made by a satellite carrier of a performance or display of a work embodied in a primary transmission and is actionable as an act of infringement under section 119(a)(5), a network station holding a copyright or other license to transmit or perform the same version of that work shall, for purposes of subsection (b) of this section, be treated as a legal or beneficial owner if such secondary transmission occurs within the local service area of that station.

(f) (1) With respect to any secondary transmission that is made by a satellite carrier of a performance or display of a work embodied in a primary transmission and is actionable as an act of infringement under section 122, a television broadcast station holding a copyright or other license to transmit or perform the same version of that work shall, for purposes of subsection (b) of this section, be treated as a legal or beneficial owner if such secondary transmission occurs within the local market of that station.

(2) A television broadcast station may file a civil action against any satellite carrier that has refused to carry television broadcast signals, as required under section 122(a)(2), to enforce that television broadcast station's rights under section 338(a) of the Communications Act of 1934.

What Are the Penalties for Infringement?

Under Title 17, Chapter 5, Sec. 504 of the United States Code, actual and statutory damages may be awarded and the choice of either option is afforded by law to the copyright owner. In essence, although a copyright owner may be able to seek actual damages, the copyright owner may instead opt only for statutory damages. Seeking purely statutory damages allows the copyright owner to avoid hurdles in proving actual damages or from proving the infringer’s actual financial gain made from the infringement.

Sec. 504. - Remedies for infringement: Damages and profits

(a) In General. - Except as otherwise provided by this title, an infringer of copyright is liable for either -

(1) the copyright owner's actual damages and any additional profits of the infringer, as provided by subsection (b); or

(2) statutory damages, as provided by subsection (c).

(b) Actual Damages and Profits. - The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer's profits, the copyright owner is required to present proof only of the infringer's gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.

(c) Statutory Damages. –

(1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.

(2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was:

                (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords; or

                (ii) a public broadcasting entity which or a person who, as a regular part of the nonprofit activities of a public broadcasting entity (as defined in subsection (g) of section 118) infringed by performing a published nondramatic literary work or by reproducing a transmission program embodying a performance of such a work.

(d) Additional Damages in Certain Cases. - In any case in which the court finds that a defendant proprietor of an establishment who claims as a defense that its activities were exempt under section 110(5) did not have reasonable grounds to believe that its use of a copyrighted work was exempt under such section, the plaintiff shall be entitled to, in addition to any award of damages under this section, an additional award of two times the amount of the license fee that the proprietor of the establishment concerned should have paid the plaintiff for such use during the preceding period of up to 3 years.

A student or organization may be able to avoid liability under a number of defenses but even an innocent infringer may not escape an award of damages to the copyright owner. The assessment of damages is in the hands of the judge and will depend on what evidence proves the infringement. The judge can also award reasonable attorney’s fees to the prevailing party. If there is a copyright notice in existence and the copyrighted work has been properly registered with the U. S. Copyright Office, defeating an innocent infringement defense is probably not going to happen.

What Defenses Exist If Accused of Infringement?

An innocent infringer has the burden of proving that he or she was not aware and had no reason to believe that his or her acts constituted an infringement of the copyright.

If accused of infringement, certain copyright exceptions or defenses may apply. The “fair use doctrine” allows certain limited use of parts of a copyrighted work without having to obtain the copyright owner’s permission. Under Sec. 107 of the Copyright Act, there are four main factors in assessing what constitutes fair use. Specifically, Sec. 107 reads as follows:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

It is important to understand that not one of the factors standing alone may automatically be determinative as qualifying as fair use. The four factors could be treated as interrelated. Additionally, it is critical to thoroughly understand that not all educational uses or uses by educational organizations may qualify as fair use. Generally, the fourth factor is given heavy weight, but by and large a court’s decision on what weighting any of the factors will be given is totally unpredictable.

The good faith fair use defense under Title 17, Chapter 5, Sec. 504(c)(2) of the U. S. Code is a special provision that can apply if a student who copied a copyright protected work was not aware that his or her acts constituted an infringement and reasonably believed that what was copied was a fair use. A student is not entirely off the hook, however, even if a court finds this to be somewhat of a meritorious defense. The court could still assess damages. But, using its discretion, the court could also reduce damages to a sum of not less than $200.

The copyright law and fair use guidelines are unclear for the most part, particularly in matters concerning electronic and multimedia materials. But, the law does appreciate (however little one may presume) that scholarly online work requires that instructors, students, researchers, and organizational institutions must share and reproduce pieces of original, copyrighted work in a learning environment for study, comment, research, teaching, and criticism.

While determination of fair use is for the most part inherently subjective, strictly factual information is not generally protected. Presentation of factual information primarily of a stylistic nature, however, may be protected.

Under certain circumstances, students may duplicate limited work for private study and/or research, but in all things, they should not as a rule without permission from the copyright holder, tape, save, or download electronic and multimedia materials or print or duplicate them. The same rule applies for printed materials or materials obtained from the Internet. Arguably, a web site link is nothing more than an electronic address. Addresses are generally treated as facts whether at a physical address or electronically. They serve to identify where something can be located. It was held in Ticketmaster Corp.  v. Tickets.Com, Inc., 2003 WL 21397701 (C.D. Cal.) that basic linking is not copyright infringement because no copying of the material is involved, only the transportation of an address—a fact. Copyright infringement involves substantially copying the fruits of a person’s toil.

If more than a strict and limited use is needed, then copyright permission from the copyright owner must be obtained.

Copyright Permission

Because of the confusion over what constitutes fair use, it is wise to seek permission to use a copyrighted work from the copyright holder.  A copyright permission request should be made at the earliest instance before engaging in the use of another’s copyrighted work.

An example of a permission request form that readily covers all the major bases of print or electronic/digital delivery in a non-profit or for-profit situation is attached in Appendix A. The permission request form material in Appendix A has been reprinted with permission from Questions and Answers on Copyright for the Campus Community, Copyright 2003, Association of American Publishers, National Association of College Stores and Software & Information Industry Association.

Conclusion

This paper does not purport to be representative or exhaustive of a full discussion on copyright law and any defenses that might be available to those accused of infringement. All material sought to be used by a student should be presumed to be protected until a fair use analysis is properly determined or permission is otherwise granted by the copyright owner. If ever confronted with an alleged infringement claim, seek legal counsel trained in copyright law immediately. This is not an arena in which laypersons can survive given the complexities of the law.

Instructors should not take copyright infringement lightly. There is an inherent obligation to teach students what must be known about respecting another’s work. It should be emphasized to students that the law affords copyright protection so that individuals will have an incentive to continue to contribute their work in society and, when possible, receive remuneration for their efforts.

The goal of this presentation was to inform instructors, students, and for-profit and non-profit learning institutions that students deserve protection from unwittingly violating the law. It is incumbent upon any instructor to be informed about how to legally use copyright protected works and to impart that knowledge to their students. It is also incumbent upon learning institutions to ensure that their instructors are well-versed on the legal ramifications of copyright infringement as well as educate and properly train their instructors on how to help their students avoid violating the law.

Appendix A

Presenter Biography

Rosalie Lopez received her undergraduate degree in business from the University of Northern Colorado, her M.B.A. from the University of North Texas, and her doctor of jurisprudence degree from the University of Houston Law Center. She graduated Order of the Barristers and with honors from law school.

Rosalie Lopez has been licensed to practice law in Texas since November 1990. Ms. Lopez is a Member and Fellow of the College of the State Bar of Texas.

Rosalie Lopez has also served as a mediator as well as a judge presiding over civil, criminal, and juvenile matters. She attended the National Judicial College in Reno, Nevada in 1997. Ms. Lopez teaches Business Law, Legal Environment of Business, Contemporary Business Law, and Employment Law for the University of Phoenix.

Rosalie Lopez is currently seeking her Doctor of Management degree in Organizational Leadership from the University of Phoenix—Online Campus.

Rosalie Lopez is an advocate for education. She believes in open and robust debate about pressing education policy issues and works for sound and accountable government intervention in education matters. 

Copyright © 2003, Rosalie Lopez, Worldwide Rights Reserved.