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Copyright Issues Impacting Online Instruction

Please keep in mind that the information presented here is only general information. True legal advice must be provided in the course of an attorney-client relationship specifically with reference to all the facts of a particular situation. Such is not the case here, so this information must not be relied on as a substitute for obtaining legal advice from a licensed attorney. Please find additional information at: United States Copyright Office - http://www.copyright.gov

Additionally, we would like to extend our appreciation to Georgia Harper at the UT-System for allowing us to copy pertinent information related to copyright law and online instruction. Georgia is nationally recognized as an expert in this area and she may be reached at: gharper@austin.utexas.edu.

FAIR USE OF COPYRIGHTED MATERIALS

What is fair use?
We would all appreciate a clear, crisp answer to that question, but far from clear and crisp, fair use is better described as a shadowy territory whose boundaries are disputed, more so now that it includes cyberspace than ever before.

The four factors of fair use analysis are as follows:

  1. The purpose of the use (commercial or non-profit);
  2. The nature of the work itself;
  3. The amount of substantiality of the segment used in relation to the whole; and
  4. The effect of the use on the potential market for the work.

With a particular use in mind, please visit “using the four factor fair use test”

The UT-System legal counsel has reviewed the current Copyright Guidelines and have decided to take a different approach in protecting their component institutions and their faculty, staff and students from the dangers of this no-man's land while supporting the exercise of fair use rights. They call their approach "Rules of Thumb" for the Fair Use of Copyrighted Materials. These Rules of Thumb are tailored to different uses of others' work and are short, concise, and easy to read.

Copying, modifying, displaying, performing or distributing another's work beyond the suggestions of the Rules of Thumb may still be a fair use, but it is suggested you use the four-factor fair use test to determine that. If the use seems risky or is clearly not a fair use, getting permission is a must. 

 Individual liability for infringement

Please keep in mind that individuals are liable for their own actions. Copyright owners have sued and will probably continue to sue individuals and they will probably sue the University too.

The penalties for infringement are very harsh: the court can award up to $150,000 for each separate act of willful infringement. Willful infringement means that you knew you were infringing and you did it anyway. Ignorance of the law is no excuse. If you do not know that you are infringing, you still will be liable for damages - only the amount of the award will be affected. There will also be attorney fees.   

There is one special provision of the law that allows a court to refuse to award any damages at all if it so chooses, even if the copying at issue was not a fair use. It is called the good faith fair use defense [17 USC 504(c)(2)]. It only applies if the person who copied material reasonably believed that what he or she did was a fair use. If you qualify for this defense, it makes you a very poor prospect for a lawsuit. On the other hand, if you disregard sound advice about fair use, a court would be free to award the highest level of damages available. This would make you a handsome target.

Additional and helpful information:

Georgia Harper has created a Copyright Crash Course. This site is hosted by the University of Texas Libraries and contains information about fair use - copyright's safety valve, when it's working properly ... when should you rely on it; what does it cover; The TEACH Act (more about this Act  below) - authorizes virtual classroom performances and displays, but what does it cover and how does it work with fair use and getting permission – who processes, who pays

As technology makes copyrighted content more easily accessible by faculty and staff, establishing campus-wide policies for the lawful use of content is becoming increasingly critical. The following website summarizes key guidelines and examples of best practices followed by many academic institutions regarding the posting and management of copyrighted content in course management systems. Guidelines and Best Practices for Copyright Compliance.

The following website contains a booklet that is intended to aid you in conforming to the requirements of U.S. copyright law by providing an easy-to-understand guide. The question-and-answer format presents an overview of relevant sections of the Copyright Act. Questions and answers on Copyright for the campus community

The Technology, Education, and Copyright Harmonization (TEACH) Act is the product of discussion and negotiation among academic institutions, publishers, library organizations and Congress. Although copyright law generally treats digital and non-digital copyright-protected works in a similar manner, special digital uses, such as online distance learning and course management systems, require special attention. Some of the special copyright requirements of online distance learning are specifically addressed by the TEACH Act.

Texas Higher Education Coordinating Board Distance Education Advisory Committee – Guide for Incorporating the Principles of Good Practice into Electronically-Based Courses http://www.thecb.state.tx.us/AAR/DistanceEd/PPGCourseGuide.pdf 

Copyright, Fair Use and Intellectual Property Policies/Procedures from Other Universities

 

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