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CIN: Computers, Informatics, Nursing:
Continuing Education

Living With Fair Use and TEACH: A Quest for Compliance

DOBBINS, WILLIAM N. MPA; SOUDER, ELAINE PhD, RN; SMITH, ROBIN M. PhD

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Continued Education
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Author Information

College of Nursing (Mr Dobbins and Dr Souder) and Office of Educational Development (Dr Smith), University of Arkansas for Medical Sciences, Little Rock.

Corresponding author: William N. Dobbins, MPA, University of Arkansas for Medical Sciences College of Nursing, 4301 West Markham, Slot 529, Little Rock, AR 72205 (e-mail: dobbinswilliamn@uams.edu).

This article was funded in part by grant number 1D11HP00351-03 from the Department of Health and Human Services, Health Resources and Services Administration. The authors gratefully acknowledge Elizabeth Tornquist, MA, for her editorial assistance in the preparation of this article.

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Abstract

With the expansion of Web-based courses in nursing education, faculty members are faced with a greater responsibility to be copyright compliant. This article reviews the changes in copyright law. The Conference on Fair Use (CONFU), the passage of the Digital Millennium and Copyright Act (DMCA), the passage of the Technology Education and Copyright Harmonization (TEACH) Act, and recent legal cases will be discussed. The strategies and resources the authors used to secure copyright permission while designing a Web-based continuing education course will also be described.

With the expansion of Web-based courses in nursing education, faculty members are faced with a greater responsibility to be copyright compliant. This article presents an overview of copyright law as it concerns Web-based teaching. Of particular importance is passage of the Technology Education and Copyright Harmonization (TEACH) Act and its implications for the fair use of multimedia content online. Using the author's experience as a framework, strategies are described to assist faculty in securing copyright permission. Institutional resources, text articles, and multimedia content are included in the discussion.

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LEGISLATIVE BACKGROUND ANDCASE LAW

Title 17 USC

Copyright law in the United States is derived from Title 17 of the US Code.1 Copyright extends to authors the exclusive rights to distribute, reproduce, and perform “original works of authorship.”1 However, these rights are not unlimited. Sections 107 through 121 establish exemptions from copyright liability.1

Relevant to education, Sections 107 and 110 cover the use of copyrighted materials in the teaching and learning process. Section 107 concerns “fair use” or the right of individuals to duplicate copyrighted materials for comment, criticism, teaching, scholarship, and research.2 Section 110 grants exemptions for nonprofit educational institutions to display and/or perform nondramatic copyrighted works.3

Drooz notes that the original language of Title 17 allowed displays or performances in a face-to-face teaching environment, for example, a classroom.4 Distance learning, under the language drafted in the 1970s, was nothing more than closed-circuit television transmissions to classrooms.4 With rapid advances in technology, including compressed video conferencing and the ability to upload multimedia content to Web-based courses, a clear need emerged to change the language in Section 110.4

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Conference on Fair Use

In 1994, as part of the US government's National Information Infrastructure initiative, interested parties from industry, academia, and libraries were invited to negotiate guidelines for the “fair use” of copyrighted electronic content in a not-for-profit educational environment.5 The Conference on Fair Use (CONFU), which met through 1996, failed to reach a consensus, but the proposed guidelines have been presented as suggestions for applying “fair use” principles to electronic materials in Web-based learning.6 Table 1 describes the CONFU-proposed guidelines for multimedia content.

Table 1
Table 1
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Digital Millennium and Copyright Act

The passage of the Digital Millennium and Copyright Act (DMCA) in 1998 was an attempt to address the inclusion of emerging distance learning methods in copyright law.7 Section 403 of the DMCA mandated the US Copyright Office to conduct a study to pursue this concern. Consulting with industry, academia, and libraries, the Copyright Office studied methods to promote new distance learning technology while balancing the interests of rights holders and users.7 The Copyright Office issued its final report in 1999 and recommended that Section 107 remain unchanged as it was “technology neutral.” Changes recommended to Section 110 included broadening the definition of a classroom, clarifying the meaning of educational transmissions, and redefining teaching activities within a course.7

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The TEACH Act

Using portions of the DMCA recommendations, the TEACH Act became a law in 2002.4 The “fair use” language of Section 107 remained unchanged, and the language in Section 110 became reflective of technological change. The interpretation of what defines a classroom was no longer confined to a face-to-face environment.4 The types of copyrighted works allowed for performance or display were expanded to include the performance or display of nondramatic literary and musical works; display or transmission of “reasonable and limited portions” of any other performance; and display or transmission of work in “amounts comparable to typical face-to-face displays.”8 The TEACH Act specifically excluded works produced and/or marketed for in class use in the distance learning educational or classroom market; works instructors know that have been previously reproduced in an unlawful manner; and works students would normally purchase, such as books and course packs.8 Table 2 summarizes changes in copyright law from 1976 to 2002.

Table 2
Table 2
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The TEACH Act attempted to balance benefit and responsibility through imposing requirements that must be met by academic institutions in order to comply with the law. Gasaway refers to these requirements as “safeguards” and categorizes them as educational, informational, and technological.9 Educational safeguards are copyright policies promulgated by the institution.9 Informational safeguards include provision of information to faculty, students, and staff regarding copyright requirements and promotion of compliance with the law.9 Finally, technological protection measures (TPMs) are implemented by the institution to prevent retention of digital copies and unauthorized dissemination of copyrighted works.9 TPMs can be software or hardware tools regulating access to digital information.9

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Recent Case Law

The CONFU, DMCA, and the TEACH Act are at best a start at meeting the needs of Web-based teaching. Even with legislation in place, litigation continues to mark the frontiers of the meaning of “copyright compliant” and “fair user.” In Universal City Studios v Corley, the Second Circuit Court concluded that fair use is not a “guarantee of access” to copyrighted material for duplication. The Court also affirmed that the “malleable” nature of digital content makes it more susceptible to manipulation by the “fair user.”10 In Kelly v Arriba Soft, the Ninth Circuit Court reversed itself. The Court ruled that linking to a copyrighted photo on a Web site without permission does not violate the copyright holder's right to display the work publicly.11

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EFFORTS AT COMPLIANCE: THE AUTHORS' EXPERIENCE

The Southern Gerontological Nursing Certificate Program (SGNCP), funded by the Health Resources and Services Administration (HRSA), uses a Web-based course in part to educate nursing faculty from southern states. In attempting to make the program copyright compliant, we faced a number of tasks: identifying institutional copyright resources, seeking permissions to use copyrighted text content, and applying fair use principles to the use of multimedia content.

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Institutional Resources

The TEACH Act was not in effect when the course design process began in the summer of 2002, but university system policy regarding copyrights in distance learning was already in place. The policy required distance learning educators to secure permission from the rights holder to use multimedia content.12

In the absence of an institutional policy, there are a number of resources on the Web to assist faculty in designing Web-based courses. The University of Texas maintains a site located at http://www.utsystem.edu/ogc/intellectualproperty/cprtindx.htm#top. It features a Crash Course on Copyright where issues of “fair use” are clearly spelled out. In addition, an article addressing the implications of the TEACH Act is located at http://www.utsystem.edu/ogc/intellectualproperty/teachact.htm.

North Carolina State University maintains the TEACH Act Toolkit located at http://www.lib.ncsu.edu/scc/legislative/teachkit/glossary.html. This site focuses exclusively on distance learning issues.

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Permission to Use Copyrighted Text Materials

The Web-based modules of the SGNCP course used copyrighted published materials that were either part of a reading packet, accessible on the Web from an online journal, or posted full text as part of an independent Web site. Three methods were used to secure permissions to photocopy journal articles or link to the resources: (1) requests for permission expedited by the university library staff, (2) requests for permission through the Copyright Clearance Center (CCC), and (3) direct contacts with the publisher or Web site operator. With the first two methods, a nominal fee was required in most cases. The CCC fee for making copies of each article for a maximum of 20 students ranged from $7 to $43. Using the third method, most requests to duplicate or link were accommodated by the publisher or Web site operator with permission at no charge. Sample correspondence is shown in Figure 1.

Figure 1
Figure 1
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Another method for distributing articles in an online course is to establish an electronic reserve copy. Curran and Curran suggest application of the CONFU guidelines to electronic reserves.13 The guidelines are as follows: (1) limit reserve material to short items such as single journal articles or brief excerpts from books, (2) place a copyright notice on each item to include a statement prohibiting further electronic duplication, (3) limit access to electronic reserve articles to students enrolled in the course, and (4) seek permission from the copyright holder to use material beyond one semester.13

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Use of Multimedia Components

Our experience provides a cautionary note for Web-based course designers seeking to use copyrighted music. The song Tossin' and Turnin', as performed by Bobby Lewis, was needed to demonstrate a teaching point in one of the SGNCP Web-based modules. Because the authors had been successful in obtaining permission from print publishers to use their materials at no charge, the plan was to secure permission from the music publishing company to make the entire song available for download, while the module was posted, at no charge. A visit to the publisher's Web page revealed that such a request would be honored for a “research” fee of $500.14 Even if the fee was paid, there was no guarantee the song could be used in the course “free of charge.” Eventually, it was decided to apply “fair use” and utilize a small portion of the song. The view based on the CONFU principles stipulates that 10% or 30 seconds of the song is fair use.6 A 30-second audio portion was placed in the module.

Images on the Web are tantalizingly easy to right click and download to use in a course. The CONFU principle limits use to no more than 10% or 15 images from a collection.6 Schloman notes that while the fair use standard may apply, a reasonable attempt should be made to seek permission.15 Schloman recommends a three-step process: (1) search the particular Web site for the section where content use issues are addressed; (2) if stipulated by the rights holder, seek permission via letter or e-mail; and (3) cite a reference for the image in the course.15 The authors applied a TPM within the courseware to prevent downloading by students (P.M. Francis [FrancisPaulM@uams.edu], e-mail, January 26, 2005).

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CONCLUSION

Discussions regarding the use of content online are likely to continue even though TEACH Act has been passed and the fair use language of Section 107 is still considered “technologically neutral.” Future court decisions may further expand or constrict teaching rights in Web-based education. In the meantime, faculty members teaching online must make a careful and informed assessment before using any copyrighted content for a Web-based course. The task is arduous but possible.

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REFERENCES

1. US Copyright Office. Circular 1: Copyright Basics. Washington, DC: US Copyright Office; 2000. Available at: http://www.copyright.gov/circs/circ1.html#wci. Accessed January 18, 2005.

2. US Copyright Office. Section 107 Limitations on Exclusive Rights: Fair Use. Washington, DC: US Copyright Office; 2003. Available at: http://www.copyright.gov/title17/92chap1.html#107. Accessed January 18, 2005.

3. US Copyright Office. Section 110: Limitations on Exclusive Rights: Exemption of Certain Performances and Displays. Washington, DC: US Copyright Office; 2003. Available at: http://www.copyright.gov/title17/92chap1.html#110. Accessed January 18, 2005.

4. Drooz D. Copyright: the TEACH act at one year. Paper presented at: Annual Meeting of the Law and Higher Education; February 15–17, 2004; Clearwater Beach, Fla.

5. Harper G. CONFU: Background [University of Texas System, Office of General Counsel Web site]. July 11, 1997. Available at: http://www.utsystem.edu/ogc/intellectualproperty/confu2.htm. Accessed January 24, 2005.

6. Alexander S, Baird D. The wrinkle in your research and teaching: copyright, DMCA guidelines, and public domain. Paper presented at: Proceedings of the Annual Mid-South Instructional Technology Conference; March 30–April 1, 2003; Murfreesboro, Tenn.

7. US Copyright Office. Report on Copyright and Digital Distance Education. Washington, DC: US Copyright Office; 1999. Available at: http://www.copyright.gov/reports/de_rprt.pdf. Accessed April 8, 2004.

8. Harper G. The TEACH act finally becomes law [University of Texas System, Office of General Counsel Web site]. November 13, 2002. Available at: http://www.utsystem.edu/ogc/intellectualproperty/teachact.htm. Accessed April 29, 2004.

9. Gasaway L. Copyright corner: the TEACH act. Inf Outlook. 2002;6:44–45.

10. Lipinski T. The myth of technological neutrality in copyright and the rights of institutional users: recent legal challenges to the information organization as mediator and the impact of the DMCA, WIPO, and TEACH. J Am Soc Inf Sci Tech. 2003; 65:824–835.

11. Ninth Circuit withdraws portion of Kelly v. Arriba Soft opinion regarding linking to copyrighted images [Current Developments]. Comput Internet Lawyer. 2003;20(9):25–26.

12. University of Arkansas System Board. Board Policy: Copyright and Distance Learning [University of Arkansas Board Web site]. Available at: http://www.uark.edu/admin/vcfainfo/system/0210_2.PDF. Accessed June 3, 2004.

13. Curran M, Curran K. The legalities and practicalities of developing a course specific electronic reserve room. Nurs Educ Perspec. 2002;23:300–306.

14. EMI Music Publishing Inc. Frequently Asked Questions [EMI Music Web site]. Available at: http://www.emimusicpub.com/worldwide/global/help.html. Accessed May 21, 2004.

15. Schloman B. Images on the Web: findable, usable, but what's legit? Online J Issues Nurs [serial online]. 2002;7(3):8. Available at: http://nursingworld.org/ojin/infocol/info_9.htm. Accessed January 21, 2004.

Keywords:

Copyright; Education; Fair use; Nursing continuing education; Nursing education; Web-based education

© 2005 Lippincott Williams & Wilkins, Inc.

 

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