Intellectual Property

Access to and protection of digital intellectual property has become one of the most serious social and political issues of this new millennium. Who owns the Internet? Who owns its content? Why are many corporate business interests and politicians promoting the “Second Enclosure Movement?”

These issues affect YOU !!

Whether you are a student, a teacher or just an informed and well-connected citizen, the changes which have taken place in the last decades of the 20th century have begun to exclude you from the free access to our common cultural heritage. Make no mistake — even without government enforcement, alleged appropriation of copyrighted material gets severely punished, largely by punitive litigation. If you file-share copyrighted materials (songs, books, images, performances) you may not be able to afford the legal fees to protect your rights and, in many cases, you may lose all your material assets!

So, Learn About Your Rights !

First, let me introduce you to the overall subject of copyright, especially the TEACH Act which applies to both live and online instruction.The TEACH Act (Technology, Education and Copyright Harmonization Act) was signed into law by President Bush on November 2, 2002. The TEACH Act (17 U.S.C. § 110(2)), amends the Copyright Act of 1976 by rewriting Section 110(2) and adding a new Section 112(f). Additional detail can be found in the U.S. Copyright Office Circular 21, “Reproduction of Copyrighted Works by Educators and Librarians.”

Article 1, Section 8 of the original U.S. Constitution provides Congress the power “to promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive rights to their respective Writings and Discoveries.” A work becomes automatically protected as soon as it is fixed in a tangible form. Copyrighted works need not contain the copyright symbol to retain protection. Copyright protection today extends 70 years beyond the life of the original author.

Modern copyright includes six distinct rights: Reproduction, Derivation, Distribution, Performance, Display, and the Digital Transmission of Sound Recordings. The TEACH Act identifies numerous exceptions to these rights in cases of “mediated instructional activities” (commonly referred to as Distance Education) provided by accredited, non-profit educational institutions. According to Senate Report 31 (107th Cong.,1st Sess., 2001) mediated instruction, refers to “activities that use copyrighted materials…integral to the class experience, controlled by or under the actual supervision of the instructor and analogous to the type of performance and display that would take place in a live classroom.” In addition, the provisions of the “Fair Use” exception still apply to the use of copyrighted works.

Copyrighted works are distinct from materials in the public domain. Generally, the public domain includes works whose copyright has expired or been lost; works produced by a federal employee during performance of that employment; works explicitly donated to the public domain (or subject to open licensing such as the Creative Commons License); works that lack sufficient originality to qualify under copyright.

Exceptions to copyright prohibitions for education purposes are provided by the Fair Use Doctrine (17 U.S.C. Section 107) and the TEACH Act Classroom Exceptions (17 U.S.C. Section 110 (2)). The Fair Use Doctrine allows the use of copyrighted material without first obtaining permission when the use is for criticism, comment, news reporting, teaching, scholarship or research. Four factors establish Fair Use: the purpose and character of the work; the work’s nature (creative works are usually more protected than factual ones); how much of the work is used (the smallest amount needed to achieve the educational purpose); the potential market impact (use cannot interfere with the owner’s ability to profit from the work. Counts tend to weigh this factor most heavily).

The TEACH Act expands Section 110 beyond the original “Fair Use” exception which allowed performance of copyrighted works as part of non-profit educational instruction. However, a distinction between what is permitted in face-to-face instruction and what is permitted for delivery of distance education is maintained.

Exceptions for face-to-face instruction allow:
• single and multiple copies of portions of copyrighted printed materials;
• classroom performance of lawfully obtained video and audio material;
• classroom performance of video/audio recorded at home from broadcast by the instructor

Classroom use of audio and video recorded off the air is governed by the Kastenmeier guidelines which generally limit retention and use of institutionally recorded copies to not more than 45 calender days.

The TEACH Act exceptions for distance learning permit:
• performance of a non-dramatic literary or musical work;
• display of clips (or short segments) of copyrighted audio-visual or dramatic musical works;
• digitizing copyrighted works for distance education, but only if these works are not already available in a digitized format;
• use of copyrighted works in a manner comparable to a permitted use in a face-to-face setting;
• use of copyrighted works when access is technologically limited to enrolled students;
• permitted exceptions must be technologically protected to prevent student recipients form retaining and distributiong the copyrighted materials.

To utilize the TEACH Act exceptions, an educational institution must have a copyright policy in place and must provide instructional materials about copyright to faculty, staff, and students. Secondly, the institution must implement methods to technologically protect copyrighted materials from retention and distribution beyond the distance education setting. Typically, this is achieved by assigning passwords or PIN codes to enrolled students that allow them access to the material during the class but not after.

In addition, an institution may explicitly adopt the guidelines developed in 1997 by The Committee on Fair Use (CONFU) which, while not formally adopted, are generally considered “reasonable” for the protection of copyright owners’ rights. CONFU guidelines identify fair use as limited by:
• Time of Use – for instructors, up to two years before explicit permission must be obtained; for students, for the length of the course and for inclusion in employment portfolios.
• Portion Used – recommended standards vary depending on the medium (motion, text, music and lyrics, illustrations and photographs, numerical data sets) but generally use of up to about 10% is considered fair use.
• Copying and Distribution – this also varies, but largely is dependent on the possibility of infringing on the owners’ potential profit.

Below I have listed links to a wide array of reference material and opinion about the digital commons, intellectual property rights law and copyright.

One of the best overviews for students and others unfamiliar with Copyright restrictions is Bound by Law – A ‘Graphic Novel’ (a.k.a. comic book) on Fair Use which can be found, along with a wealth of other Intellectual Property materials on Duke Law Professor James Boyle’s web pages. The best available copy of Boyle’s class materials The Constitution in Cyberspace - Cases & Materials can be found HERE.

You also might enjoy ex-Grateful Dead lyricist John Perry Barlow’s essays, the “Complete ACM Collection.”

And visit Harvard’s Berkman Center for Internet & Society to learn about the future of the internet.
“The Berkman Center’s mission is to explore and understand cyberspace; to study its development, dynamics, norms, and standards; and to assess the need or lack thereof for laws and sanctions.”

check out their recommended reading section for free online pubs, including the works of Lawrence Lessig, including free on-line books:
The Future of Ideas
Free Culture